You have to show that the owner or operator had actual knowledge or should have known that the substance was there before your fall. (You may also be able to show that the business had improper flooring, but that is outside the scope of this article.)
Tip: You should know this law cold if you are trying to settle your case without filing a lawsuit. Do not give an unrecorded statement to the insurance company adjuster for the business establishment unless you know this law cold. Never give a recorded statement to the liability claims adjuster!
For purposes of this article, assume that you do not have any facts that support a claim that the Florida premises owner or operator had actual notice or was negligent in their mode of operation.
That leaves you with proving that the owner or operator of the business establishment had constructive notice of the dangerous condition and should have taken action to fix it.
Typical “business establishments” in Florida include, but are not limited to supermarkets, restaurants, stores, restaurants, hotels, malls and much more.
Florida Statute 768.0755 states that [in Florida], “constructive knowledge may be shown by circumstantial evidence showing that:
- (a) The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or
Here were are going to just take a look at subsection “a” above. How do you know what length of time is enough to show that the business should have known of the condition (e.g. substance or debris) on which you slipped?
Length of Time to Show Constructive Notice Depends on Unique Facts of Accident and May Be Shown By Circumstantial Evidence
The length of time to show constructive to notice will generally depend on the particular facts of your claim and it may be shown by circumstantial evidence. So if you are injured in Florida, then you should be taken a look at past Florida cases.
Warning: If you are injured in a Florida slip and fall at a business (e.g. store, supermarket, etc.), do not look at non-Florida past cases to see what circumstantial evidence courts have said satisfied the constructive notice requirement. Florida courts are bound by Florida law and there is plenty of Florida law on this subject. In fact you could spend weeks reading about it and still be left scratching your head.
So off we go. Let’s take a look at what Florida courts have said is the length of time that shows constructive notice, and see what circumstantial evidence can show constructive notice and let a jury decide the case.
Why am I mentioning letting a jury decide the case? Because the ultimate goal in a slip and fall case is to get the case to a jury and hopefully win. If your case can get to a jury then the case value generally increases because the insurance company (or business where you fell) will have to hire a defense attorney to defend the case through trial which can easily costs upwards of $15,000 to $20,000 dollars even in a “simple” slip and fall case.
Montgomery v. Florida Jitney Jungle Stores, Inc. – 15 minutes may be enough to show constructive notice
In Montgomery v. Florida Jitney Jungle Stores, Inc.1 a customer slipped on a collard green at a grocery store in Pensacola, Florida. This is not my case.
She did not know how the collard leaf got on the floor, or how long it was there. She and/or her husband were in the area of the fall for fifteen minutes before the accident; there were no other shoppers around the area where she fell; no one swept the floor while they were there; and, at the time of the fall, that there were two store employees in that area of the store where the fall happened.
Her husband observed that the collard leaf was old, wilted and dirty looking, and that there was water on the floor at the point where plaintiff fell. A jury entered a verdict in her favor. I don’t know the amount of the verdict.
My thoughts: This is a Florida Supreme Court case so it applies if you slip and fall in a business establishment (e.g. supermarket, store, etc.) anywhere in Florida. Once the inference was drawn that no one else was in the area for 15 minutes (during which no one swept the area, and the shopper did not hear or see anything drop, break or split) there is no reasonable inference other than the collard green and water were on the floor for at least 15 minutes before the fall.
The fact that the husband said that the collard leaf was old, wilted and dirty looking may lead one to conclude that it had been there for a while before the fall.
If the customer had been in the area for less than fifteen minutes before the fall, it would have made her claim weaker because a jury (and claims adjuster) may conclude that less than 15 minutes was not an enough time within which the business establishment should have known that the collard green and water were on the floor. If she was in the area for less than 15 minutes, perhaps the claims adjuster would have offered less money (or no money at all) to settle the case.
If all the facts were the same except that the collard green looked fresh, expanded, and clean, then this may have made it more difficult for the shopper to show that the collard green and water were on the floor for much longer than 15 minutes before the fall. This may have resulted in a smaller offer to settle from the supermarket’s insurer.
Fun fact: If you slip and fall in Florida and can prove that the business establishment should have known that a substance was on the floor before you fell, then you are entitled to recover damages (medical bills, lost wages, pain and suffering, mental anguish, etc.) minus your percentage of negligence.
There are also 38 factors that can affect that value of all personal injury cases but I am keeping it simple here.
The exception to proving negligence in order to get money for your medical bills is if the business has an insurance policy with “medical payments coverage” (Medpay).
Most often a business establishment is either has a self-insured retention (e.g. usually larger stores) or has at least $1 Million in insurance coverage. Therefore, if the business establishment’s negligence caused your injury, then they should be able to make an offer that reflects the settlement value of your damages (e.g. medical bills, lost wages, pain, suffering, mental anguish, etc.)
Tip: If you slip and fall at a business establishment, you should at your earliest convenience write down the amount of time that you were in the area before you fell. You can cross reference you memory will your cell phone records (e.g. the time of a call that you made, time of an internet search, etc.). You should also complete a personal injury questionnaire in addition to a specific questionnaire for slip or trip and fall cases before you forget important facts about the accident.
You should note whether there were any shoppers around the area where you fell. If there were no shoppers in the area where you fell then you can argue that the substance was on the floor before you got to the area, and another customer did not cause the substance to get on the floor while you were in the area.
You should also note whether you saw any employees in the area and/or cleaning.
Hussain v. Winn Dixie Stores, Inc.2– Bad Case for Shoppers – 30 minutes wasn’t enough
This are the facts of the above actual case (not mine). Raana was shopping with her two younger children in a Winn Dixie store shortly before closing time. The store was almost empty of customers.
She stepped on a raw egg that had been dropped in the middle of an aisle in the store, in front of the dairy case, where she was intending to purchase some butter. Her feet slipped out from under her and she fell on her back, hitting her head. No one saw her actually fall, and no one had any idea about how the egg came to be dropped in the middle of the aisle.
The question became was there any circumstantial proof to show that the egg had been overlooked and left on the floor for such a long time that the store was negligent because it did not discover and clean it up earlier?
Winn Dixie’s assistant manager and store clerk said that Winn Dixie had a policy of inspecting the store floors every thirty minutes, and that on the night of Raana’s fall the floors of the whole store were mopped at least thirty minutes before she fell, and more likely fifteen to twenty minutes before. Raana was able to show very little to rebut their statements.
Raana’s children said there were a lot of eggs splattered around, and that they looked “dirty.” Apparently a carton of eggs had broken open and more than one fell out. The photographs of the accident site and the Winn Dixie employees’ statements clearly showed that all but one of the eggs fell in or near a drink display, and were not the cause of the fall.
Someone said that the egg splatter showed had a one foot track running through it, and some dirt. However, Raana had stepped in the egg, and her shopping cart had also tracked through it. There was no evidence that there were additional step marks or tracks, or that the yolk of the egg had crusted and “aged” through being left on the floor a long time. The assistant manager testified the egg was fresh and runny, and no one disputed that fact.
My thoughts: This is a bad case for shoppers who wish to make a personal injury claim from a slip and fall. The judge dismissed this case. The court said that there was some testimony that there was some dirt in the egg. So let’s take a look at what would have possibly prevented the court from dismissing this case? Remember if I case does not get dismissed and can get to the jury, this generally adds some settlement value to it.
The case possibly would not have been dismissed and thus would have had some settlement value if Raana or her children had observed 1 or all of the following:
- egg was very dirty
- additional step marks or tracks through the egg
- yolk of the egg had crusted and “aged” through being left on the floor a long time
You can see how fact specific a slip and fall cases can be.
Side Note: Disney is located in Orange County, which subject to the 5th District Court of Appeal (DCA).
Therefore, while a trial court has to follow the law of the Florida supreme court (and any other appellate districts if the Florida Supreme court has not ruled on the issue), this case may possibly decrease the value of a case if you slip and fall on a substance at Disney and can only show that it had been on the floor for 15 to 20 minutes before you fell. But again, every case is fact specific so don’t give up on your case just because of the Hussain case.
1Montgomery v. Florida Jitney Jungle Stores, Inc., 281 So. 2d 302 (Fla. 1973)
2 Hussain v. Winn Dixie Stores, Inc., 765 So. 2d 141 (Fla. 5th DCA 2000)
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