Courts Address Florida Slip, Trip, and Fall Law

On July 1, 2020, the Third District Court of Appeal (which governs slip, trip, and fall cases filed in Miami) issued two important appellate decisions each reaffirming longstanding and important principles of Florida slip, trip, and fall law.  In Echevarria v. Lennar Homes, LLC, the court addressed the differences between a property owner’s distinct legal duties and emphasized that issues concerning a property owner’s negligence are best decided by the trier of fact (i.e. a jury).  In Morales v. Ross Dress for Less, Inc., the court addressed Florida law concerning slip and fall injuries at business establishments caused by a “transitory foreign substance.”

Florida Trip and Fall Law.  What Are a Property Owner’s Duties?

In Echevarria, the plaintiff was injured while walking through a model home when she stepped from a raised porch to an adjacent walkway.  According to allegations in the complaint, the plaintiff “could not see the step down from the raised, front porch onto the adjacent walkway,” the defendant “created a dangerous condition – i.e., an optical illusion – because the walkway and porch were both ‘covered by the same colored brick pavers,’ ” and “the porch ‘blended in perfectly with the adjacent walkway, making the step invisible to the naked eye as you exited the home.’ ”

The trial court entered summary judgment for the defendant on the grounds that the defendant “owed no duty to Mrs. Echevarria – either to warn of a dangerous condition or to maintain the premises in a reasonably safe condition – because the single-step transition that allegedly caused Mrs. Echevarria’s fall was open and obvious and not inherently dangerous.”  This ruling was reserved on appeal, with the Third District Court of Appeal stating “viewing the record and the reasonable inferences therefrom in the light most favorable to the Echevarria, we conclude there is an issue of material fact as to whether Lennar, through an uncommon design or mode of construction, created a hidden danger (i.e., an optical illusion) on its property that a prudent invitee would not anticipate.”

In reversing the trial court’s decision in Echevarria, the Third District Court of Appeal clarified that property owners have two separate and distinct legal duties:  “1) to warn of concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through the exercise of due care, and 2) to use ordinary care to maintain its premises in a reasonably safe condition.”

These legal duties are not the same.  Failure to warn, for example, may be a defense to an open and obvious (albeit dangerous) property condition while it is no defense whatsoever to a landowner’s failure to exercise ordinary care to maintain its premises in a reasonably safe condition.  Understanding the differences between a property owner’s legal duties, as well as what must be alleged in a complaint and proven at trial, can mean the difference between a successful recovery and having your case dismissed entirely.

What Do You Have to Prove in a Florida Slip and Fall Case?

A person suing because he or she slipped at a store or other business establishment faces an additional burden of proof.  In these lawsuits, an injured patron must prove that the business had actual or constructive knowledge of the transitory foreign substance which caused the fall.  This aspect of a plaintiff’s burden of proof is required by Fla. Stat. § 768.0755(1).

In Morales, the injured patron slipped on “pieces of smashed plastic,” but could not prove how long those pieces were on the floor.  Because this evidence was lacking, she could not establish that Ross had knowledge of the danger and the trial court entered summary judgment in favor of Ross.  The decision was affirmed on appeal.

In affirming the trial court’s decision, the court in Morales stated, “Constructive notice may be inferred from either: (1) the amount of time a substance has been on the floor; or (2) the fact that the condition occurred with such frequency that the owner should have known of its existence.” The plaintiff in Morales was unable to show either.  As a result, the appellate court ruled that “the summary judgment record, in its entirety, was devoid of facts evidencing the length of time the pieces were on the floor, ‘[t]he condition occurred with regularity and was therefore foreseeable,’ or any other salient factor that would serve to lawfully impute constructive notice to Ross.”  Because of the lack of proof, the case was over.

Many lawyers who represent accident victims feel that Fla. Stat. § 768.0755 imposes too high a burden on injured patrons, particularly those who are hurt so badly in a slip and fall accident that they are unable to immediately investigate the cause of the fall.  Those seriously injured in a slip and fall accident are often unconscious, unable to walk, undergoing evaluation by paramedics, or being transported to the hospital.  They cannot photograph, document, or otherwise investigate the cause of their fall.  This can allow property or store owners time to clean up a mess, repair a dangerous condition, and gather favorable evidence.  Many times the injured patron does not have an equal opportunity to investigate the cause of his or her slip and fall.  That is why attorneys at Viñas & DeLuca recommend hiring a lawyer as soon as practicable anytime you are hurt in a slip and fall accident.  Hiring a Florida personal injury attorney to represent you in a slip and fall case can help you overcome the legal burdens addressed in Morales, as well as other obstacles faced by plaintiffs in Florida slip and fall lawsuits.