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Slip-and-Fall Injury Lawsuit Fails for Lack of Notice Proof

Florida slip-and-fall injury lawsuits are among the trickiest in which to prevail, thanks to a high proof burden standard in this (and many other states) requiring evidence the business had actual or constructive notice of the dangerous condition that caused the plaintiff to slip. 

This is not to say they aren’t worth pursuing. Many slip-and-fall claims in Florida are actionable, and it’s especially important in cases where serious injury resulted to at least explore the viability of a claim. That’s because these incidents can result in serious and lasting injuries, depending on the floor material, how hard the person fell, at what angle they fell and how fragile their body was to begin with. Some of the most common injuries we see in Orlando grocery store slip-and-fall cases include: Head injuries (including traumatic brain injuries), hip fractures, back and spinal cord injuries, shoulder injuries, sprains and fractures (particularly of wrists and ankles).

However, in contested claims (where the insurer refuses to make a payment), before a court can consider the severity of your injuries and what you might be owed, there first must be a decision about whether the defendant business owner/ manager is negligent. Having an experienced injury lawyer on your case as soon as possible is imperative because certain critical evidence – which you might not even realize is important – could be lost forever if it’s not promptly preserved. For example, if you don’t know what you slipped on or how long it was there, you will have a very tough time prevailing in a slip-and-fall case. But it’s possible certain evidence – such as security surveillance footage – may offer key information that can help answer these questions – and save your case. However, if your attorney doesn’t request that it be preserved, it might be deleted by the store (common practice for many businesses with such cameras). 

In general, negligence is the failure to exercise reasonable care when one had a duty to do so, resulting in harm to someone else. With Florida slip-and-fall injury cases, it gets even more specific. F.S. 768.0755 is the provision that requires evidence of actual or constructive notice of defendant. It pertains solely to those cases wherein someone alleges they slipped and fell on a foreign transitory substance at a business establishment. (These cases fall under the general umbrella of premises liability, which is the duty of a property owner to exercise caution or provide warning to lawful guests about perilous conditions on site.)

Actual notice could be established if one can show employees of the business were made aware of that actual spill at that exact time and location and failed to address it or warn patrons of it. Constructive notice (which is the more common approach) requires circumstantial evidence that shows that either the hazard existed for such a length of time the business should have discovered in the course of using ordinary care OR the condition occurred with regularity, so the business should have foreseen it.

A similar proof burden exists in Idaho, where the Idaho Supreme Court recently considered a slip-and-fall lawsuit involving a superstore patron who fell on a liquid while in the housewares department. According to court records, plaintiff slipped in an aisle near a display of trash cans. He did not know what the origin of the liquid was or how long it had been there. Further, store surveillance footage did not capture either the spill or the fall.

Store practice allowed customers to carry liquids throughout the store (purchased there or elsewhere). It was plaintiff’s argument that the store was negligent in failing to warn customers about the potential heightened risk they might encounter as a result of this practice. He presented an internal message to employees, indicating spills were responsible for most slip-and-falls at the store, but there was no evidence presented of this particular spill or a history of spills at the location where plaintiff fell. For that reason, the store filed a motion for summary judgment, which was granted by the trial court.

The Idaho Supreme Court affirmed. The court took note of prior case law holding that mere presence of some kind of slippery substance on the floor that might arise temporarily in any place of business isn’t enough to establish liability; rather “something more” is needed. The court found that reasoning instructive here, saying that to find otherwise would be akin to saying every store with a liquid substance cleanup policy would be liable for any spill at anywhere in the store almost immediately. The evidence as presented did not establish that this was a recurring or continuing dangerous condition.

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:

Johnson v. Wal-Mart, Aug. 3, 2018, Idaho Supreme Court

More Blog Entries:

Palm Beach Head Injury Lawsuits, July 6, 2018, Orlando Slip and Fall Injury Lawyer Blog

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