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Establishing Actual or Constructive Knowledge in Florida Slip-and-Fall

A critical element of any Florida slip-and-fall injury lawsuit is establishing actual or constructive knowledge.slip-and-fall attorney

Florida’s slip-and-fall statute, F.S. 768.0755, requires that if a person slips and suffers injury in the fall on a transitory foreign substance in a business establishment, that person must first prove the business had actual or constructive knowledge of the hazard and therefore had a duty to actively remedy it. Actual knowledge could be shown if the business created the condition or if a staffer or manager was informed directly of the floor’s condition at that time and location. Constructive knowledge is a bit trickier. It is shown by proving the condition existed for such a length of time that the business establishment should have learned of it in the exercise of ordinary care OR that the condition occurred with regularity and was thus foreseeable.

Indiana has a similar proof burden requirement in these premises liability cases, and this issue arose in a recent case before the U.S. Court of Appeals for the Seventh Circuit

According to court records, plaintiff entered a drug store on a cold day in January. Just prior, as she had been pulling into the parking lot, a snowplow was leaving. She shopped and then was making her way to the register when she fell. She would later say she saw nothing on the floor that would have caused her fall, except she noted it was something “wet.” She landed on her knee and then fell backward onto her back. Another customer and a manager did not recall seeing anything on the floor. A friend of plaintiff’s arrived at the store seven minutes later, and reported seeing “water everywhere” on the floor. She snapped several pictures of the scene and puddles on the floor where plaintiff had fallen.

Plaintiff told paramedics who took her to the hospital that she had slipped and fallen on water.

She was later diagnosed with a broken kneecap. She later filed a slip-and-fall lawsuit in state court.  The case was moved to federal court at defendant’s request. Defendant then filed a motion to suppress statements made by plaintiff to paramedics as hearsay and another for summary judgment. The judge granted both motions, finding plaintiff failed to prove the store’s negligence had caused her injury.

The issue was that even if plaintiff had shown there was a hazard on the floor, she presented no evidence that the store had actual or constructive knowledge of it. No evidence was given to indicate anyone had told a store employee there was a hazard on the floor and no employee indicated they had seen anything on the floor prior to the fall. Plaintiff also did not give any evidence that would indicate the condition existed for any length of time that might suggest store employees would have discovered it had they used ordinary care. There was nothing in her claim to indicate how long the water had been on the floor.

She argued that the presence of the snowplow outside was enough to alert store employees that there was danger of customers tracking in snow and water, but the court held that just because workers knew a hazard was possible didn’t mean they knew danger had actually materialized. In fact, the court held, there are a lot of possible hazards at such a store (i.e., soda bottles that might fall off display, toys that could clutter the aisle, cosmetics jars that might shatter on the floor, etc.). The fact that these things could happen means store managers must be on alert, but it doesn’t imputed instantaneous knowledge of when those hazards come about, and there is no strict liability for a fall that occurs before workers have had a chance to remove it.

The federal appellate court affirmed.

We highlight this case not to discourage you from pursuing a slip-and-fall claim, but to underscore the importance of hiring an experienced injury attorney who understands what kind of proof you will need to overcome the legal challenges.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.

Additional Resources:

Austin v. Walgreen Co., March 23, 2018, U.S. Court of Appeals for the Seventh Circuit

More Blog Entries:

Landlord Legal Liability in House Fire Weighed in Injury Lawsuit, March 11, 2018, West Palm Beach Slip-and-Fall Injury Lawyer

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