Slip and Fall Claims in Florida

Posted By on October 13, 2014

Last Update: 10/28/17

Slip and falls can happen to anyone, anytime: at a restaurant, leaving a movie theater, shopping at the mall or big box store, buying groceries, or even walking on a public sidewalk or in a parking lot.  When a victim is injured due to the negligence of a business owner, landlord or the party in control of the property, Florida’s slip and fall laws allow a victim to seek compensation for his or her losses including past and future wages, pain and suffering, medical expenses and more.

This article answers several common questions about Florida slip and fall claims including:

 
Photo of wet floor sign next to a water spill
 

The Reality of Slip and Falls in Florida

A Florida slip and fall claim may seem straight-forward to the injury victim: they went to a store or other location (supermarket, office, restaurant, shopping center, etc.) and as they were walking, they slipped or tripped and fell because of some substance or dangerous condition on the floor or with the environment — water, food, grease, ice, worn or missing floor mat, uneven or raised area, protruding item, inadequate lighting, etc. All the victim knows for sure is that he or she is hurt and they have to deal with real life issues like figuring out how to pay their bills (medical and daily living expenses) and how to deal with the demands of recovery (from both physical and emotional injuries).

In Florida, there is a 4-year statute of limitations for slip and fall claims. Meaning, a victim must file a lawsuit withing four years of the date of the accident.

Unfortunately, most Florida slip and fall claims are not quickly and easily resolved. Most locations where slip and falls commonly occur are self insured (like Publix and Walmart).  Meaning, they act as their own insurance company and therefore they are not eager to settle a case. Additionally, certain types of slip and falls are governed by a specific law which makes these cases hard to win (see the next paragraph).  A victim has a burden to meet before he or she is entitled to compensation which relates to what the property owner knew or should have known about a dangerous condition.

1. How does Florida Statute 768.0755- Florida’s premises liability law work for slip and falls occurring within a business establishment?

There was a time when Florida slip and fall injury victims were able to readily pursue a claim against those responsible for their accident. However, in 2010 the Florida legislature made the requirements more difficult for slip and fall injury victims who are injured because of a substance on the floor of a business establishment with the passage of Florida Statute 768.0755, as lawmakers responded to public outcry from business interests in Florida to nullify a decision of the Florida Supreme Court in 2003 and an earlier Florida Statute which was much fairer to injury victims. Basically, Publix and Wal-Mart and other businesses used their influence to make it harder for slip and fall injury victims to obtain compensation for their injuries.

Florida Statute 768.0755 [1], enacted in 2010, provides:

Premises liability for transitory foreign substances in a business establishment.—

(1) If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven 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
(b) The condition occurred with regularity and was therefore foreseeable.

(2) This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.

With the passage of the new law, the plaintiff must now submit evidence that the defendant business had actual or constructive knowledge (meaning it should have known of the condition/ substance on the floor) of the dangerous condition. [2]

For example, most people think that if you go to a grocery store in Florida and slip on some water and injure yourself, then you automatically are entitled to compensation for your injuries. Unfortunately, that is not the case. Now, you have to show some evidence that the business entity actually knew of the substance on the floor or the condition or substance existed for a sufficient length of time that the employees of the business should have known of the condition or substance. This is known as constructive knowledge of a condition and it can be difficult to prove.

In most instances, a victim will be alone when he or she falls and, as a result of being injured, not be aware of exactly what caused the fall. Although an accident report may have been prepared, ordinarily the business does not have to turn the report over to a victim or their attorney because it is considered “work product”, which is not subject to discovery in a slip and fall lawsuit. If this is the case, the victim is left to take the deposition, usually years and many other falls at the store later, of the person who prepared the report. That person is usually an employee that no longer works for the company and is difficult to locate. Even though many stores have in-store 24 hour surveillance (these cameras often capture the victim falling), that surveillance also doesn’t have to be turned over to you or your attorney in a lawsuit. Often times, the business tries to convince the court to allow it to take your deposition before producing the surveillance, if so order to do so.

(Note: A popular defense tactic that businesses try to use when facing a slip and fall is to try and blame the victim for not seeing what was on the floor, even though it is expected that customers will be looking at merchandise on the shelves or their attention will not be directed in front of them as they are walking.)

Read: Grocery Store Slip and Falls

2. Is the property owner liable for your slip and fall if there were warning signs where you fell?

In some instances, defendants point to the fact that warning signs were being used on the property at the time of the slip and fall accident to avoid having to pay any damages to an injury victim. Warning signs can include things like “wet floor” cones or brightly-colored tape along hazardous pathways (like steep stairs, or pool areas).

It is a good thing that these warning signs exist and hopefully they work to prevent people from being hurt. However, having a warning sign of any sort near the scene of a slip and fall accident doesn’t necessarily, by itself, prevent the defendant (premises owner or operator) from being found at-fault or legally liable under Florida’s premises liability law.

If a plaintiff can prove three elements in a Florida slip and fall case, then he/she has shown that the defendant is negligent and the defendant will have to pay for the injured parties damages. These three elements are [3]:

1. the existence of a duty recognized by law requiring the defendant to conform to a certain standard of conduct for the protection of others including the plaintiff;
2. a failure on the part of the defendant to perform that duty; and
3. an injury or damage to the plaintiff proximately caused by such failure.

So, even if a warning sign is located at the scene of the slip and fall, the injured party can prevail if he/she can meet these requirements and provide evidence that the owner had “actual” knowledge or “constructive” knowledge of the real and present danger at the time that the plaintiff was hurt.

For example, if the grocery store had a warning sign that cautioned customers against the possibility of slippery floors in the produce department, and the victim can show they slipped and fell on water that had been puddled in the aisle for over an hour, then the warning sign will not be sufficient to bar the store from legal liability. As the Florida Supreme Court has explained, “… it must be shown that the owner negligently failed where the law, custom, or innate danger requires diligence.” [4] However, it is up to a jury to decide whether an injured victim should have seen a warning sign. A jury could conclude that the victim was totally at fault, partly at fault, or not at fault at all. If there was a clearly posted sign right where the potential danger existed, then this would make the case more difficult to win or settle.

3. What can a slip and fall injury victim receive as compensation?

Once the accident victim can show the premises’ owner is liable under Florida law, the next issue to be addressed is the type and amount of damages the defendant may be responsible for the harm they have caused.

In settlement negotiations, (most personal injury cases don’t go to trial) the defendant usually agrees to pay the plaintiff in settlement rather than face a jury in a courtroom. However, with cases being harder to prove, more business owners are insisting that their cases go to trial or they offer a smaller settlement amount than they did before the change in the law addressed in the preceding paragraphs. The types of damages that can be covered are the same as those that are covered in other injury cases.

Florida slip and fall victims may recover damages (compensation) in two broad categories: economic and non-economic (general or intangible) damages. One way of looking at these two categories is how they are proven. Economic damages usually have paperwork to support them, with evidence such as medical bills, invoices, receipts, paychecks, and documentation. Non-economic damages include bodily injury and resulting pain and suffering, disability, mental anguish, and inability to enjoy life as one had enjoyed life in the past. A jury is instructed that there is not exact standard for determining a value for these injuries, just that the amount awarded needs to be fair and just in light of the evidence. It is important to bring into court credible individuals, including the victim, to testify about the physical and mental pain involved from the injuries and how the injuries from the slip or fall has affected a person’s activities whether it is one’s hobbies ( i.e., sports, gardening, playing an instrument) or occupation.

Economic Damages in Florida include:

  • EMS or ambulance charges
  • Hospital bills
  • Anesthesiologist bills
  • Surgeon’s bill
  • Home nursing care bills
  • Physical therapist bills
  • Medical Equipment rental (wheelchair, etc.)
  • Lost earnings (wages) and loss of ability to earn wages in the future

Non-economic Damages in Florida include:

 
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4. In Florida, what elements should be evaluated in most every type of slip and fall claim?

The victim in a slip and fall claim has the burden of proving the extent of his or her harm as well as who is responsible or at fault for that harm. In other words, the injured person has the burden of proving both (1) liability (usually negligence) and (2) damages in his or her slip and fall case.

Every slip and fall in Florida must be evaluated on its own circumstances, determining the strengths and weaknesses of the claim, not only from a trial perspective (i.e. what can be proven, what evidence will be admissible or excluded, etc.) but from a pre-lawsuit settlement perspective as well (how will an experienced adjuster approach the claim).  Part of that evaluation must include the following:

1. Basic Questions For Evaluating a Florida Slip, Trip and Fall

Who are the Parties?
Can the victim sue or does someone need to file suit on their behalf (e.g., a parent for a child)?
Are there other defendants? Who else is at fault? (maintenance company, mat manufacturer, etc.)
Who owns the premises? Who operates it?  Who else is in control of the premises?
Is there a duty imposed upon the defendant under Florida law? (e.g., the restaurant owner may be liable but not the cook who handles the grease)
Is there a breach of that duty?
How did they breach that duty?
Did the owner know of the dangerous condition or should it have known of the condition?
What steps did the property owner take to protect its invitees?
What are the circumstances surrounding the accident? (was the area well lit, was there a warning sign, were there hand rails, was the pavement uneven or cracked, was there anti-slip flood mats?)

Read: What Are The Duties That a Florida Landlord Has To Its Residential Tenants and Their Guests?

2. Evidence

What documentation is there to prove the accident occurred (video surveillance, police reports, accident reports, medical reports, etc.)?
What witnesses are available to testify about the accident? (victim, third party witnesses, employees, paramedics, etc.)

Related: Florida Hotel Slip and Falls: What is the Victim’s Evidence Burden When Trying to Recover Compensation?

3. Damages

What type of injuries did the victim suffer? (hand and wrist, ankle, herniated disk, broken hip, head injury, torn rotator cuff or labrums, etc.)
How was the victim hurt? (doctor’s opinion, medical files, etc.)
What are the victim’s recovery needs? (doctor’s opinion, etc.)
Is the victim permanently damaged?
What activities is the victim no longer able to perform? How much will the victim have to pay someone else to perform those tasks? (economist’s opinion)
How much time from work did the victim miss?
Will the victim be able to go back to the same job? How much income will the victim lose out in the future? (economist’s opinion)
Did someone die from the fall?
Who else was hurt by the accident? (child’s loss of parent; spouse’s lifestyle injuries)

4. Defense

What challenges are there to be made against the claim? (e.g., statute of limitations, comparative negligence, fraud, etc.)
What challenges might be made against the evidence? (challenging expert testimony, hearsay, etc.)

Similar to other accident claims (car accidents), slip and fall cases have an additional burden when evaluating the value of a claim: assigning the victims level of fault in causing the fall and the resulting injuries. Even when a slip and fall case is won at trial, the jury usually ascribes some degree of fault to the injured person which results in the damage award being reduced by the percentage of negligence attributed to the injured person. For example, if a jury finds a victim 40% at fault and the defendant business 60% at fault in causing a fall, and the jury awards $100,000 in total damages, the judge then reduces the $100,000 compensation award by 40% to $60,000.[5]

5. Sample Slip and Fall Settlements

Depending on where a victim slipped and fell, certain aspects can vary when it comes to settlement negotiations. For example, some businesses may take longer than others to reach a settlement, if one is reached at all. Publix and Walmart are well known for being difficult to negotiate a settlement. However, it is not impossible to reason with their claim adjusters. Below are a few examples of settlements Alan has achieved for his clients:

  • Settlement: $28,500.00 – vs. Publix Super Markets, Inc. – Where the victim slipped and fell in the produce department. Victim did not suffer any bone fractures or other major injuries.
  • Case won: $59,999.00 – vs. Walmart Stores, Inc. – Victim slipped and fell and was injured by a garbage can that she was purchasing.

See more of Alan’s slip and fall settlements:

Making a Slip and Fall Victim Whole Again

In Florida, victims that are hurt as the result of a slip/trip and fall injury have rights under Florida state law even though the 2010 Florida statute has made it more difficult to prove liability for certain types of claims (i.e. substances on the floor of a business establishment). In order for a slip and fall victim to receive compensation, they must show the existence of a duty, a failure on the part of the defendant to perform that duty and an injury or damage to the plaintiff that was proximately caused by such failure. Furthermore, slip and fall damages can include medical expenses, lost wages and other economic damages, as well as non-economic, general damages like such as bodily injury and resulting pain and suffering, loss of capacity for the enjoyment of life, scarring or disfigurement and mental anguish.

Slip and fall injuries can result in serious bodily harm to accident victims which can impact their lives for weeks, months, even years. When falling injuries happen because someone else failed to protect against dangerous conditions, Florida law helps the victim to get the compensation he or she is due to make them whole again.

What Should You Do?

If you have been harmed by a slip and fall, a good piece of advice is to speak with an experienced personal injury lawyer before you file a claim to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person) to answer your questions.

Related:

See – 5 Things You Get From Alan Sackrin and How They Can Help You!

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Endnotes

[1] Florida Statute 768.0755

[2] Publix Supermarkets, Inc. v. Santos

[3] Kenz v. Miami-Dade County

[4] Heps v. Burdine’s, Inc. 69 So.2d 340, 341-42 (Fla.1954)

[5] Algie v. Lennar Corporation, 969 So.2d 1135 (Fla. 4th DCA 2007)

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Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.
 
 
 
 
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Comments

2 Responses to “Slip and Fall Claims in Florida”

  1. Honey Daniels says:

    I have a trolley case from 2015 in court and 12/25/16 had a bus accident open treating with Ortho for neck n back I just fell 8/4/2017 getting on the bct bus because they didn’t put the bus down as I climbed to get up on the bus I tripped on the ledge as it got in between my handicap shoes..my feet were wrapped due to lymphadema n one and planter facis in the other however I went to emergency I was in pain and they said I had a hand contusion n foot they gave me flexiral n Tylenol can or should I advise with legal aid?

  2. Schiffrin says:

    Very helpful post!!!Thank you for sharing the above idea about slip and fall claim. Every personal injury lawyer should have knowledge and experience in handling all types cases like personal injuries, automobile accidents, slip and fall, wrongful death etc. Lawyer will discuss all the facts regarding the claim and suggest you some idea about filing a claim.