If you slipped and fell in Florida you may be unsure whether you have a case to get paid for your damages (e.g. medical bills, lost wages, pain and suffering, etc.). Florida slip and fall cases are difficult. This is true regardless of whether your case is against:
- a supermarket, such as Publix, Winn Dixie, Sedanos, Presidente, Trader Joe’s, Whole Foods, Fresh Market, etc.
- a store like Walmart, Target, Kmart, Sears.
- a mall, hotel, restaurant, condominium or apartment complex.
- Walt Disney World, or Universal Studios Orlando
- any other place where you slipped and fell.
- a cruise line, such as Carnival, Royal Caribbean or others.
But here I am concentrating on factors that are unique to Florida slip and fall accidents. The following are 26 factors that may affect whether you are able to get paid if you slip and fall in Florida, and suffer injury.
1. Did the defendant have actual or constructive notice?
In order to recover damages in a Florida slip and fall case, you need to show that the premises owner of operator knew or should have known that the substance was on the floor before you fell.
The length of time the substance or debris remains on the floor to prove constructive notice will usually change with the facts and circumstances of each slip and fall and may be proved by circumstantial evidence
You are walking through an aisle of a supermarket, and you step on a substance on the floor which you believe to be sauerkraut or something similar (mustard, yogurt, etc.). You slip and fall and are hurt.
Assume that you were in the aisle for at least 5 minutes and no one is near you or passes by. You were busy looking at items on a shelve before you fell. You believe that the substance that you fell on was gunky, dirty, wet and black, or had similar characteristics.
Assume that the store sold hot dogs on the premises and customers could ask for sauerkraut and condiments. Customers were allowed to sit on the benches near the area that sold the hot dogs or customers could walk around the store and eat their hot dogs.
Because you can state that no one passed by you for 5 minutes before you slipped, and the substance that you think was sauerkraut was black, you can argue that it had been stepped on before and thus had been there for longer than the 5 minutes since you are sure that no one was in the area for that amount of time.
This may allow your case to get to a jury, which is what you want. When a liability insurance adjuster is deciding whether to pay you money, a big factor that he or she looks at is whether your case will get to a jury.
This example is based on the case of Ress v. X-Tra Super Food Centers, Inc., 616 So.2d 110 (Fla.App. 4 Dist., 1993).
If the place where you fell does not have an inspection process for about 15-20 minutes before you fell, then this may be enough to get your case to a jury, but it depends upon the county in Florida where the fall happened.
But someone would need to testify – if true of course – that there was no one in the area or store for 15-20 minutes or more before you slipped on a substance.
2. Did the injured person’s carelessness cause the fall?
In Florida, an injured person’s damages in a slip and fall case are reduced by his or her percentage of fault. So if an injured person is 60% at fault for the fall, then his total damages are reduced by 60%.
Take a look at the picture below.
Assume you are walking in the direction of the arrow. So basically you are walking from the bottom of your screen to the top of the screen. At the top of the arrow are some paper cups that are on the floor in a supermarket.
In the picture above, if you trip over the cups on the floor, then when coming up with a settlement range, you probably may want to reduce the full value of your case by a percentage because you took a lot of steps before tripping on the cups on the floor.
You will also want to reduce the value because someone was able to walk past these cups before you without tripping over them. The claims adjuster may argue that you had plenty of time to see the items on the floor before you fell.
If you arguably should have seen the substance on the floor, but did not, the value of your case may be reduced by your comparative negligence (your fault). Some attorneys (or insurance claims adjusters) say that a person who slips and falls is automatically at least 50% at fault for not looking where he or she was walking.
In Florida, if a jury uses the same thought process as the claims adjuster, the injured person would only be able to recover 50% of his total damages (medical bills, lost wages, and pain and suffering). Sometimes juries do find that the property owner was 100% responsible for your injuries resulting from a slip and fall.
On the other hand, if you are turning a corner and you slip and fall, then you may have a stronger case because you can argue that you did not have time to see the substance on the floor. See the picture below.
I would place little (if any) blame on the customer (in the picture above) for not seeing the dirty substance that he claimed caused his fall. Because he fell after turning the corner, he had very little time (if any) to see the substance on the floor. Now, the supermarket – or its insurer – can still argue that you should not be shopping while on crutches. But that is a discussion for a different day.
I settled his case for $300,000. He had two skin grafts in the area outside of his Achilles tendon.
3. What color was the liquid or substance?
If you slipped and fell on a banana, you should make note of the color of the banana. If the banana is brown, you can argue that the premises owner had constructive notice that it was on the floor for a long period of time and an employee should have known that it was there and picked it up.
4. Did the liquid have footprints or tracks going through it?
5. Was the liquid hard or soft?
6. Was the liquid sticky?
7. Was the liquid dirty or was it clear? (The dirtier the liquid, the longer you can argue that it was on the floor.)
8. How large was the liquid that you slipped and fell on?
9. What type of shoes were you wearing at the time of the accident?
If you were wearing sandals or flip-flops, an insurance adjuster may argue that your client slipped and fell because of the flip-flops and not a substance on the floor. You still may have a good case even if you were wearing sandals at the time that you fell on a substance. Wearing flip-flops is just one of the many factors to look at when determining whether you have may be able to win your slip and fall case.
10. What type of pants or shorts were you wearing at the time of the accident?
11. Were your pants (or shorts) loose or were they tight?
12. If you were wearing shoes, were your laces tied?
13. If you wear glasses, did you have them on at the time of the accident?
14. Describe the lighting at the time of the accident?
15. Were there warning signs that said “Slippery When Wet” or something to that effect?
16. Which direction were you walking when this happened?
17. Where had you walked before you fell?
18. What caused you to fall?
19. What were you doing on the property when you fell?
20. Has the store or business had prior similar instances?
21. Was the store engaging in a negligent mode of operation?
22. Did the premises owner (store, hotel, restaurant) create the condition on the floor?
If an employee dropped something or did something that caused the substance to be on the floor, and you fell on it, this is enough to show notice. If there were numerous complaints or warnings in the past, this is enough to show that the store had constructive notice of the substance.
23. Did the liquid have an odor (smell)?
24. Prior complaints.
If something is on the floor, and a waiter, busboy, employee or stock boy sees it, then it will get your case to the jury because this proves actual notice.
25. What body part did you injure and what did you land on?
If you are claiming a shoulder injury that requires surgery, then you should make a note if you landed on your shoulder. Your testimony – and the testimony of others – will be important in proving that the fall caused your injury.
Many doctors give a thorough record of your complaints of pain and description of how the accident happened. Take pictures of any bruising that you have, if you have a knee injury, ankle injury or wrist injury.
If you are claiming a neck injury or back injury, whether a herniated disc or bulging disc, then it is important to let the doctor know exactly how you fell. You should be prepared for the claims adjuster to argue that the accident did not cause your herniated disc.
Unlike a car accident where your doctor needs to state that you have a permanent injury in order to get money for pain and suffering, this is not required in a slip and fall in Florida.
26. Did you report the accident or a store employee or call 911 when it happened?
The value of your case may get reduced if you did not report your fall immediately after it happened.
You should immediately answer all of these questions and make multiple copies of your answers and keep them in a safe place.
Did someone’s carelessness cause you to slip or trip and fall and suffer an injury in Florida, or on a cruise or boat? Were you injured in another type of accident?
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