Proving liability in a Florida slip-and-fall case can sometimes be an uphill battle. That has largely to do with F.S. 768.0755, which requires plaintiffs who fell on transitory foreign substances to show defendant had actual or constructive knowledge of that the substance was there.
Absent a written memo or audio recording referencing that specific spill or video of a staffer walking by the spill, proving actual knowledge is very tough. The good news for plaintiffs is that constructive knowledge can be established by showing defendant should have known about the danger. This can be established by showing either that:
- Condition existed for such a time that business establishment should have discovered it;
- The condition occurred with regularity and was therefore foreseeable (due to the business’s “Mode of Operation”).
Many states, including New Jersey, have similar requirements for plaintiffs to prevail. Recently, the New Jersey Supreme Court considered the case of Prioleau v. KFC. Inc., and the majority found that the “mode of operation” was the form of negligence in the case. In general, the assertion is made regarding defendant’s method of operation where it is designed to allow patrons to handle merchandise and/or products directly without the aid of the company’s employees. In these cases, there is an expectation of customer carelessness.
Some examples of “mode of operation” slip-and-fall cases include:
- A dance club that allows patrons to take drinks onto the dance floor.
- A grocery store that knows produce and other products will be handled and possible spilled by consumers.
- A fast food restaurant that allows patrons to retrieve their own drinks, which could be spilled
In each case, a spill is probably foreseeable, and defendant would have a duty of care to make sure the premises is safe for every business invitee. In cases where defendant caused the condition, notice may not be required.
In the Prioleau slip-and-fall case, plaintiff was driving across state with her adult son and daughter. It was pouring rain, and they decided to stop at a fast-food restaurant for dinner. As they walked in, there were no mats on the floor, and the trio stated they tracked water into the restaurant. Plaintiff’s son went to the counter. Plaintiff followed him, told him what she wanted to order and walked to the bathroom. Just before entering the restroom, she slipped and fell on wet floor.
She described the floor as wet, but also greasy. She sustained injuries that required ongoing medical care.
It was asserted during trial that defendant employees tracked grease into that common area from their shoes, which would have gotten oil on them while workers were cooking in the employee area. The judge allowed jury to decide negligence based on the theory of mode of operation. Jurors later decided the case in favor of plaintiff.
A divided appellate panel reversed, reasoning that mode of operation didn’t apply in this case, considering plaintiff had not been carrying a drink or condiments, and there was no assertion anyone else was either. Plaintiff might have been able to win based on the notion that employees tracked the grease in from the kitchen (in which case, no notice would be necessary), but the application of mode of operation in this case was improper, and the case was remanded for a new trial.
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Prioleau v. KFC. Inc., Sept. 28, 2015, New Jersey Supreme Court
More Blog Entries:
Williams v. Clark Sand Company, Inc. – Florida’s Corporate Survival Statute, Oct. 18, 2015, Fort Lauderdale Slip-and-Fall Lawyer