Have you ever slipped and fallen before…I mean really busted your bum. It’s EMBARASSING right? All you want to do is get up and make sure that no one saw you. However, you can get seriously injured if you slip and fall or trip and fall…and if it’s due to someone else’s negligence, you have a legal right to be compensated from the person or business that caused that dangerous condition.
Keep in mind, after the mess has been cleared, these cases are extremely hard to prove. First, any evidence that the business owner repaired the dangerous condition is generally NOT admissible in court to prove that it existed. This is because the public policy for promoting people to correct dangerous conditions outweighs an injured party’s right to use that fact against the owner.
Second, when considering liability exposure for a premises owner, the general rule in Florida, as related to invitees (i.e., people present for the benefit of themselves and the owner), is that a property owner owes two duties:
(1) the duty to use reasonable care in maintaining the property in a reasonably safe condition (i.e., free of hazards); and
(2) the duty to warn of latent or 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.
However, changes in Florida law now places the burden of proof completely upon the injured party, improving the defense’s ability to get the case dismissed before ever going before a jury. The statute requires that the plaintiff must “prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.”
Generally, actual notice is difficult for plaintiffs to prove in most slip and fall matters. Therefore, proof of constructive knowledge is generally argued by plaintiffs to prove their cases. However, this, too, was contemplated by Florida Statue § 768.0755, which explains that constructive knowledge may be proven by circumstantial evidence showing that:
(1) 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
(2) The condition occurred with regularity and was, therefore, foreseeable.
The law is even more difficult to overcome by an injured business patron if they slip on a “foreign transitory substance”, i.e. the grape on the floor, the water leaking from the freezer. But that’s a topic for another blog.
It is often helpful to a plaintiff’s case to investigate the “mode of operation” of the business or the knowledge of former employees of the business to shed light on exactly how long this dangerous condition existed and how long they knew about it.
The single most important thing to remember if you slip and fall or trip and fall at a place of business is to IMMEDIATELY TAKE PICTURES OF THE DANGEROUS CONDITION…the water on the floor, the uneven flooring or misplaced rugs, rotten wood, exposed nails…..with those pictures your case goes from a FIGHT to MAKING IT RIGHT.
So please let your loved ones know that if they fall, remember to STOP, DROP AND SHOOT (photos, that is)!
Stay safe out there! YOUR accident and injury attorney, Marianne Howanitz