Prior to 2010, people in Florida who suffered injuries due to a “slip-and-fall” needed only to show that a dangerous condition existed on the property that proximately caused the plaintiff’s injuries.
But then the state legislature passed a law – codified in Florida Statute 768.0755 – that significantly shifted the burden of proof, and additionally required plaintiffs seeking to prove negligence by showing the defendant knew about the dangerous condition, or should have known about it, and failed to address it.
Our Sarasota premises liability lawyers know this will be a key question an experienced injury attorney will analyze before deciding to press forward with a case. In many instances, the case will hinge largely on circumstantial evidence and witness testimony.
This was the case recently in Walker v. Winn Dixie Stores Inc., where the plaintiff appealed summary judgment granted in favor of a defendant store in a slip-and-fall negligence action. Florida’s First District Court of Appeal affirmed.
The biggest issue for the plaintiff was that she was unable to prove that the floor where she fell was wet for a period of time during which it would have been reasonable for store employees to find it and clean it. In fact, her own testimony suggested it had only been raining for approximately one minute prior to her fall.
According to court records, the incident occurred in Jacksonville, when the plaintiff traveled to the store to assist a disabled companion with his grocery shopping. She testified that when they arrived, the weather was “bright and sunny,” and up to that point, there had been no rain that morning.
The pair went about their grocery shopping for approximately a half hour. When they returned to the parking lot, the plaintiff described the weather as “steamy,” but indicated it didn’t appear to have recently rained or sprinkled. The pair loaded the groceries into the car and then the plaintiff helped her companion into the vehicle, with the entire process taking about 10 minutes. She then walked back to return the electric cart, at which point it began “misting.”
The woman parked the electric cart inside the front entrance area, stepped off and started to walk toward the door. However, as she did, she slipped and fell. She said that while she had seen no puddle, there were wet marks from the cart’s wheels. She described the condition that caused her to fall as “unnoticeable drops of water.”
This statement alone severely damaged her case. Remember, in order for a claim to be compensable, the plaintiff has to prove the defendant “knew or should have known” about it. If the condition as “unnoticeable,” that makes it tough to make the assertion workers should have acted upon it.
Still, the court explored other evidence, including video surveillance that shows store workers inspecting the area of the fall three to five minutes before it happened. The store manager, in reviewing that video, indicated it must have just begun to rain because staffers had put up an umbrella rack, with bags for wet umbrellas to ensure they didn’t drip onto the floor.
He further noted the absence of a mat on the floor, and speculated the workers were in the process of retrieving the mat, as was standard procedure when it begins to rain.
The plaintiff acknowledged she was proceeding under the theory of constructive, rather than actual knowledge in order to prove negligence. Primarily, she was relying on the fact that the store employees had started, but not completed, their rainy-day procedure. She argued the store should have either installed warning cones or mats in the affected area.
However, the trial court found, and the appellate court affirmed, there was no proof of actual or constructive knowledge of the presence of a transitory foreign object, as is required by the updated statute. Although the plaintiff argued the condition, even if unnoticeable, occurred with such frequency the store should have known about it, the court ruled the brief period of time the water was on the floor – four minutes at most – was insufficient to meet the statutory requirement that the alleged dangerous condition exist for such a length of time that in the course of ordinary care, the company knew or should have known about it.
This is not to say such cases are a lost cause. However, they do require plaintiff attorneys to proceed with knowledge and experience.
If you have been injured in Sarasota, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.
Walker v. Winn Dixie Stores Inc., Aug. 20, 2014, Florida’s First District Court of Appeal
More Blog Entries:
Cox v. Wal-Mart – Dangerous Condition Forms Basis for Premises Liability Claim, June 24, 2014, Sarasota Personal Injury Lawyer Blog