What is Constructive Notice in a Florida Slip and Fall Case?

What is “Constructive Notice” in a Premises Liability Case in Florida?  If an injured person can’t prove that the owner or operator of a premises had actual knowledge of a dangerous condition, he or she must show that the owner or operator had constructive knowledge of it.

In a Florida slip and fall case, constructive knowledge may be shown by:

1. the dangerous condition existed for such a length of time that in the exercise of reasonable care the condition would have been known to the possessor; or

2. the condition occurred with regularity and was therefore foreseeable.

Notice is a generally a major issue in a premises liability claim. A property owner or manager is required to inspect the property for conditions that could cause injury to the public.

If you are injured in a slip and fall on a transitory foreign substance in Florida, pursuant to Florida Statute 768.0755 you need to show actual or constructive notice in order to get damages.

You do not need to prove notice in a case against your employer (workers compensation) if you are injured on the job in Florida. This article only talks about constructive notice.

Example

You are shopping at a Publix store in Florida. You are in the dairy section and you slip on egg that was on the floor. There was a stock person just a few feet away who helped you up after your fall.

A manager was called and they got you a chair as you could not move and were trembling.  Your husband came to the store (took pictures and video) but the egg had already been cleaned up.

He took you to the emergency room, and you did not have any broken bones but you did have severe pain on your elbow, back and shoulder and the next morning, headaches. You are not sure how to proceed or if I have a case against Publix?

My answer will only talk about proving constructive notice. For purposes of this article only, we’ll assume that you unable to prove actual notice. Note: You may be able to prove actual notice in this case but I am not going to talk about that here.

You may be able to establish constructive notice if the egg should have been discovered – before the fall – through Publix’s use of ordinary care. If the video shows the egg on the floor for at least 5 minutes prior to the fall, you can argue that Publix should have known about it and cleaned it.

Publix has a duty to inspect the sales floor of its store to discover items – such as egg on the floor – that may cause someone to fall and get injured.

In Florida, constructive notice may be established through circumstantial evidence, such as smudges, streaks, tracks, footprints, a dried egg, a dirty egg and possibly other characteristics. It may also be established through store surveillance video.

If I was representing you, I would immediately request the video – in writing via fax, certified mail and possibly via a process server – for the entire day of the incident.

This is a sample letter that I would use in a slip and fall case to request that a store preserve video in a slip and fall case against Walmart.

I would use it against other stores as well.  This letter can be edited and used against any business in Florida.

Proving constructive notice is one of the many issues involved in a slip and fall case.

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