Slip and Fall Slippery Substance Claim vs Florida Walmart

A Walmart store in Daytona Beach, Florida

Update 8/9/2015: Wal-Mart Stores, Inc. v. King, 592 So.2d 705, 707 (Fla. 5th DCA 1991) is an older slip and fall case, however it has been recently cited as good law. Therefore, Florida slip and fall victims should be familiar with it.

This is not my case. However, I have settled many Florida slip and fall injury claims.

Florida’s Fifth District Court of Appeal heard this case. The 5th District is comprised of Hernando, Lake, Marion, Citrus and Sumter Counties; Flagler, Putnam, St. Johns and Volusia Counties; Orange and Osceola Counties; and Brevard and Seminole Counties.

In this case, Daytona Beach lawyers represented Walmart. A Daytona Beach attorney represented the injured woman.

Wal-Mart Stores, Inc. appealed a final judgment awarding Georgia King $846,000 in damages in a slip-and-fall case. On appeal, Wal-Mart argues that the trial court should have directed a verdict in its favor because Ms. King failed to cite evidence from which the jury could have reasonably determined that Wal-Mart was negligent.

Tip: Walmart’s goal is to get your case dismissed before it gets to a jury. If a jury decides your case, they can rule in your favor and award you damages, which is what Walmart wants to avoid. Thus, you should understand everything there is to know about slip and fall cases so that you can get your case to a jury.

The appeals court agreed with Walmart and ruled in its favor. This means that it dismissed the case.

Facts of the case

At around 6:00 p.m. on a Saturday in June 1986, Ms. King slipped and fell in the sporting goods area of a Wal-Mart store. Ms. King later sued Wal-Mart for negligence in failing to:

1. Maintain the premises in a reasonably safe condition

Reasonable care

2. Failing to warn her of the danger.

Warning sign

At trial, several witnesses described the area where Ms. King fell as being splattered with a slippery or oily-type substance. The substance was clear and had a thick, sticky consistency between a solid or a liquid, or lubricative quality to it.

The substance apparently could not be detected by ordinary observation.

Tip: Walmart can argue that even if the store floor was inspected more frequently, the substance could not be detected by ordinary observation. Thus, it was not negligent.

On the other hand, the customer can argue that she is not at fault because she had no way of seeing the substance before she fell. The “full” case settlement value is not reduced if the customer is not at fault. This may result in a higher settlement value.

Wal-Mart had a safety sweep program that required that the floor be swept several times during the day.

According to the Wal-Mart manager, the last time the floor would have been swept for safety purposes was about one and one-half hours before Ms. King fell.

The area where Ms. King fell was near the automotive department where slick spots from substances such as Armour-All or STP had been found in the past.

Tip: If slick spots from substances near the automotive department occurred with regularity and was therefore foreseeable, the customer would have been able to prove constructive knowledge.

However, here the court just says that slick spots had been found in the past. Perhaps they were only found once or twice. I do not know how many times they were previously found at this particular store.

At the end of Ms. King’s case and at the conclusion of all the evidence, Wal-Mart moved for a directed verdict. Basically, Walmart asked the court to rule in its favor because Ms. King could not prove her case.

The judge let the jury decide the case. The jury found that there was negligence on the part of Wal-Mart that was the legal cause of damage to Ms. King and awarded her a total of $846,400 in damages.

The court said that the issue in this case was whether there was enough evidence of negligence to go to the jury.

Tip: In a Florida slip and fall case against Walmart, you need to present enough evidence of negligence so that your case gets to a jury. Otherwise, the judge will dismiss your case before the jury enters its verdict.

The court noted that most of the facts in this case were undisputed: It was agreed at trial that the plaintiff slipped and fell in an aisle of the defendant’s store. No one knew how long the floor had been slick in the area where the fall occurred.

Each witness who described the area used terms such as clear, oily, viscous, but not watery or wet. Unlike the typical grocery store fall, the slippery substance did not display any obvious signs of age, such as skid marks, smudges, dirt or the like.

The trial judge concluded that reasonable judges could differ as to whether the case should have been submitted to the jury.

Tip: This is what the injured person wants. You want to have a case that at least, a reasonable judge, should can submit to a jury.

The court awarded Ms. King her verdict.

King Appeals court uses a Winn Dixie case to help explain its decision to dismiss the King case

The appeals court said that this case is virtually the same as Winn-Dixie Stores, Inc. v. Marcotte, 553 So.2d 213 (Fla. 5th DCA 1989). (Learn about slip and fall injury claims against Florida Winn Dixie Stores.

In Marcotte, a customer sued a Florida supermarket after she slipped and fell on a slippery substance on the floor of the supermarket.

The customer produced no evidence that the supermarket’s agents or employees caused the slippery substance to be on the floor or that they otherwise had actual knowledge of its existence before the accident. The customer did not produce evidence as to how or when the substance got onto the floor or the length of time it was there before the accident.

The trial court did not grant Winn Dixie’s request and dismiss the case. The jury ruled in favor of the customer.

On appeal, the court noted that a landowner has two legal duties to protect invitees from the harmful effects of dangerous conditions on the premises. First, a landowner has a legal duty to ascertain that the premises are reasonably safe for invitees.

This duty equates into a legal duty to use reasonable care to learn of the existence of any dangerous conditions on the premises. Second, the landowner has a legal duty to use reasonable care to protect invitees from dangerous conditions of which the landowner has actual knowledge.

This duty is usually breached when the landowner fails to take reasonable care to eliminate a known danger, to protect invitees from the known danger by excluding them from the area of danger, failing to provide warnings as to the danger, or to take some combination of these actions.

As to the landowner’s first duty to use reasonable care to learn of the existence of dangerous conditions, a special situation exists when the circumstances are such that a reasonable and prudent person inviting members of the public to the premises would reasonably foresee that some invitees or third parties might create dangerous conditions on the premises.

In such situations, the landowner’s legal duty is to use reasonable care to timely discover the existence of such dangerous conditions. This legal duty, commonly referred to as “constructive notice,” is breached by the possessor not making a reasonably diligent search or inspection at reasonable intervals of time.

The trial of any such premises liability action necessarily involves:

(1) evidence from which the jury can understand a standard of conduct in the form of the action of a `reasonable man’ possessor of similar premises, and

(2) evidence as to the defendant’s actual actions relating to the extent and frequency of inspections actually made, and

(3) a comparison of the actual against the theoretical standard of conduct.

If a reasonable inspection would have revealed the dangerous condition in question, and if the dangerous condition existed prior to the injury a length of time in excess of the time between reasonably spaced inspections, then the jury may find that the possessor neglected his duty and is liable for any injury legally caused by that neglect.

On the other hand, if the injured invitee fails to prove these matters, and specifically fails to prove that the dangerous condition existed a length of time prior to the injury in excess of a reasonable period between inspections, the possessor should not be held liable for injury caused by that dangerous condition.

In such a case, the length of time the dangerous condition existed prior to the injury is a required factor in determining liability.

The King appeals court said that in Marcotte, there was no evidence that the supermarket had actual knowledge of the dangerous condition prior to the injury and there was no evidence, direct or circumstantial, as to the length of time the dangerous condition existed prior to the injury.

Thus, it decided that the supermarket was entitled to a judgment as a matter of law and the jury was not authorized to guess or arbitrarily impose strict liability based on the mere disagreement that the supermarket should have known of the dangerous condition.

Since Marcotte failed to show competent, substantial evidence on an issue essential to the supermarket’s liability, the judgment in favor of Marcotte was reversed. (This means that Winn Dixie won the case.)

Back to the Walmart case. In the King case, there was no evidence that Wal-Mart had actual knowledge of the slippery substance. There was also no evidence of the exact nature of the substance and how it got onto the floor.

It could be argued that the evidence that a safety sweep had been done about an hour and a half before Ms. King fell would support an inference that the slick spot was on the floor for sufficient time to put Wal-Mart on notice of its existence. However, the courts have held the fact there was no inspection for a given length of time in itself provides no proof that the defect was actually there for a sufficient period to place a landowner on reasonable notice of its existence. Smith v. Winn Dixie Stores, Inc., 528 So.2d 987 (Fla. 3d DCA 1988); McCanick v. W.J.A. Realty Limited Partnership, 516 So.2d 1129, 1130 n. 1 (Fla. 3d DCA 1987).

In addition, the trial judge noted, there was no evidence of signs of age, such as skid marks, smudges, or the like. Thus, under Marcotte, Wal-Mart was entitled to a judgment as a matter of law.

My thoughts: If the customer in this case said that the substance had signs of age, such as skid marks, smudges, or the like, her case may not have been dismissed.

In slip and fall cases, the devil is in the details. This means that one detail or fact can make or break your case.

This is why you should not give a statement to the Walmart claims adjuster after your slip and fall.