In 2010, the Florida Legislature made sweeping changes to Florida law regarding slip and fall liability for business owners. In that year, the legislature enacted § 768.0755 of the Florida Statutes, which formally requires that a plaintiff in a “slip and fall” case prove that the business where he or she was injured had “knowledge” of the dangerous condition that caused the fall. Since proving knowledge of a dangerous condition is now a formal statutory requirement for establishing slip and fall liability, it is important to understand how a plaintiff would go about making such a showing.
Typically, there are two ways a plaintiff can prove that a business had knowledge or “notice” of the dangerous condition. First, he or she can prove that the business had actual notice by proving an employee had been warned or otherwise informed about the condition. However, this is a difficult avenue to pursue, since an injured plaintiff does not generally have full access to the information necessary to determine which, if any, employees had been warned about a dangerous condition. In addition, employees, even if they can be identified, will generally not be forthcoming with that information. The second and more common method of establishing knowledge of a dangerous condition is known as “constructive notice.” To show “constructive notice,” a plaintiff uses circumstantial evidence related to the nature and duration of the dangerous condition that tends to show that employees who engage in reasonable inspection would have known of the dangerous condition.
In a recent decision from the Southern District of Florida, the court examined the sort of evidence that would be sufficient for showing constructive notice of a dangerous condition. In Garcia v. Target, the court determined whether a plaintiff had provided sufficient evidence to overcome a motion for summary judgment and thus let a jury determine whether there was constructive notice of a dangerous condition. In Garcia, a customer slipped and fell on a wet surface while she was leaving a Target located in Davie, Florida. Target argued that the plaintiff had failed to proffer evidence sufficient to satisfy her burden of proving constructive notice of the wet surface, in part because it had not been raining the day the plaintiff fell and the plaintiff acknowledged she had not seen the dangerous condition prior to slipping nor knew how long it had been there prior to falling.
The court, however, disagreed. The court noted that the testimony from the plaintiff and her son, who was accompanying her at the time she fell, mentioned that there were wet footprints in the area where the plaintiff fell. The court reasoned that this created a question of material fact from which a jury could determine that employees should have known or reasonably discovered the wet floor. In reaching this outcome, the court cited two earlier state court cases that addressed the same issue. In the first, the court found a question of material fact when evidence showed the liquid on which a plaintiff fell was dirty and scuffed, and in the second the court found a question of material fact when evidence showed there were shopping cart track marks in the substance on which the plaintiff fell. Accordingly, evidence tending to show other customers may have come into contact with the dangerous condition prior to the accident can create a question of fact from which a jury could reasonably determine a business had constructive notice.
Although evidence of other customers interacting with a dangerous condition can be sufficient to show constructive notice, this is certainly not the only way for a plaintiff to prove constructive notice and meet his or her burden in a premises liability lawsuit. If you have sustained injury in a South Florida slip and fall accident and are considering bringing a premises liability claim to recover for your injuries, the attorneys at Frankl and Kominsky have considerable experience with not only proving constructive notice but with all other facets of premises liability litigation. They are prepared to offer guidance on the likelihood of recovery in your action, and are eager to hear your story. If you would like a free evaluation, click here or call 1-855-800-8000.