A recent Florida slip-and-fall lawsuit ended in disappointment for the plaintiff after the Third District Court of Appeal affirmed summary judgment for defendant Costco on grounds the element of actual or constructive knowledge had not been established.
Florida is somewhat unique in this requirement, since the legislature in 2010 introduced F.S. 768.0755. Generally, dangerous conditions on a property subject the owner/ controller of that property to premises liability claims if someone is hurt on site. Plaintiffs in all cases need to show negligence, which involves proof that defendant owed a duty of care to plaintiff, defendant breached that duty, the breach caused plaintiff’s injury and plaintiff’s injury resulted in monetary damages. Slip-and-fall lawsuits are a unique subcategory of premises liability claims in that they require evidence the property owner either knew about the dangerous condition or should have known about it and failed to act on it.
To prove actual knowledge, plaintiff must show defendant either created the condition or was expressly made aware of it. Most slip-and-fall lawsuits in Florida, however, are proven with evidence of constructive knowledge. This can be shown in one of two ways, per the statute: The condition existed for a long enough period of time that property owner should have discovered in the exercise of ordinary care or secondly that the condition occurred with regularity and was thus foreseeable. This provision applies only to cases that involve a business establishment wherein an invitee slipped and fell on a “transitory foreign substance,” meaning something that isn’t supposed to be present on the floor and the invitee wouldn’t expect to encounter it.
It’s important as Orlando slip-and-fall attorneys to carefully review cases like this that fail so we know what challenges we face in pursuing such claims on behalf of our own clients. It’s also important for potential plaintiffs to understand the basics too.
In the case before the 3rd DCA, plaintiff accompanied her neighbor to a Costco store in Miami. As she approached the entrance from under the awning, she slipped and fell on something wet, causing her to suffer a broken knee. It had not been raining that day. She reported no Costco employees in sight where she fell. She was not able to even identify what the substance was other than that it was wet. She gave no indication of how long it had been there or where it came from. This lack of evidence ultimately sunk the case – and underscores why plaintiffs or those who are with them when they fall should try to gather as much information as possible.
It’s also indicative of why hiring a personal injury attorney as soon as possible after the accident is imperative. Your attorney can quickly move to gather critical data about your fall by reviewing store surveillance, surveying the site and identifying and interviewing potential witnesses.
If the only evidence one has is the floor was wet and the plaintiff slipped and fell, the trial court and the 3rd DCA noted the plaintiff can’t prevail. “Without more evidence, the mere presence of water on the floor is not enough to establish constructive notice.”
If you have suffered a slip-and-fall injury in Orlando or elsewhere in Florida, our team can work to help you fight for the compensation to which you are entitled.
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.
Lago v. Costco Wholesale Corp., Dec. 13, 2017, Florida’s Third District Court of Appeal
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