Is A Florida Restaurant Owner Negligent For Failure To Make Reasonable Efforts To Keep Napkins Off The Floor?

Posted By on December 3, 2015

Last Update: 11/11/17

According to the National Restaurant Association, there are 39,325 restaurants operating in Florida today, forecast to generate $36.4 Billion in 2015. The restaurant industry is a huge business here.

For those of us who live and work in South Florida, this should come as no surprise. We have everything from food trucks to fast food restaurants to fancy five-star bistros.

However, not every visit to a South Florida restaurant turns out to be a pleasant experience — sometimes people get sick or injured. The most common restaurant issue results from food poisoning, according the Centers for Disease Control.

Another common cause of injury at Florida restaurants are slip and fall accidents caused by items on the floor like napkins and other debris.

Slip and Fall Accident at Restaurants: Duty of Care for Customers

We have put together a Checklist for Slip and Fall Accidents to help people who have been hurt in a fall, no matter the location. However, when someone suffers an injury in a Florida restaurant, it is important to remember that these are business owners who know their risks and usually have liability insurance policies in place to cover accident claims. These can be tougher cases. Why?

When a restaurant has insurance coverage that means insurance adjusters and insurance defense lawyers are already in place, ready to help the restaurant defend itself from this type of premises liability claim.

Historically, restaurants have been relatively successful at avoiding or minimizing responsibility for accidents and resulting injuries. They have done this by arguing that the facts to not support a finding that the restaurant acted negligently or that the customer was largely responsible for not paying attention.

Under Florida premises liability law, a restaurant owner or operator has a duty to exercise reasonable care to protect its customers from harm. The key word is reasonable. Reasonable does not mean perfect. If it’s foreseeable that a condition could harm a person in its restaurant and the operator knows or should reasonably know of the condition, then it needs to be corrected or patrons must be warned of its existence. If a restaurant, through its employees, does not exercise reasonable care in maintaining the restaurant in a reasonably safe condition, then the restaurant owner may be held liable for the damages to a customer resulting from its negligence.
 
Napkin holder
 

What Will An Insurance Adjuster Say About A Napkin On A Restaurant Floor?

In order to collect compensation for injuries caused by a napkin left on a restaurant floor, the victim must prove that the restaurant either knew of the napkin on the floor, or that it had been there for such a length of time that a restaurant employee should have known of its existence or that it was an employee that caused the napkin to be on the floor.

As with most personal injury claims, it is likely that the restaurant’s insurance adjuster will defend the claim by saying the restaurant was not negligent because there is no proof that the restaurant’s employees caused the napkin to be on the floor or that the napkin was only on the floor for a short period of time. The adjuster (or lawyer) may also point the finger at the victim and argue that the victim should have seen the napkin and avoided the condition altogether.

Under Florida law, that napkin on the floor may well be considered a loose object that is a “dangerous condition” which the restaurant had a duty to correct. Under Florida Statute 768.0755, a restaurant operator can be held liable for injuries to a customer if the “transitory foreign substances” such as napkins and liquids on the floor if:

(a) The substance (or item) were there on the floor 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 of the floor occurred with regularity and was therefore foreseeable.

[For more on this premises liability statute, read some of our earlier premises liability posts like this one.]

A victim can prove that a napkin is a “dangerous condition” through witness statements, prior accident reports from the restaurant, photos and videos of the accident scene as well as the condition of the napkin at the time of the slip and fall (was it wet, dirty, torn, etc).

The Case of The Thrown Napkin

In the case of Izquierdo v. Gyroscope, Inc., 946 So. 2d 115 (Fla. Dist. Ct. App. 2007), Jane Izquierdo went with her fiance to meet a friend at Giorgio’s Grill, a restaurant that turned into a nightclub later in the evenings. Miss Izquierdo and her fiance liked Giorgio’s – they had gone there a half a dozen times before; this particular evening, they had arranged to meet a friend there around midnight.

Giorgio’s Grill was a fun place. One of its traditions was to have customers and waiters throw paper napkins up into the air as the music played. This was done during the restaurant hours and during the nightclub hours, too. Fun!

So many napkins would get thrown and end up on the floor that people would have to push them aside to walk through them. Sometimes, the napkins got wet as drinks were spilled on them.

Jane and her fiance knew about the napkin throwing at Giorgio’s Grill. They didn’t give it a thought that this was dangerous and could hurt someone. That was, until Jane got up from their table at the back of the restaurant/night club to go to the restroom. As she was returning to her table, she slipped and fell on the wet napkins, severely breaking her leg.

Wet napkins were stuck to the soles of her shoes. She was wet from all the liquid on the floor. All Jane knew was that she felt herself slipping and then she was hurt; however, she believed it was all the wet napkins on the floor that caused her to slip and fall down.

Her leg injury was a serious break, and Jane spent three months in a wheelchair after that accident. When she filed her accident claim against the restaurant, it didn’t want to cover her injuries. The manager testified that while he knew about the napkin throwing tradition, no one had ever been hurt before from the napkins on the floor. They all were cleaned up after closing, without there ever being a complaint.

The restaurant refused to pay her claim. She had to file a lawsuit and then take her case to the appeals court for justice. The trial judge dismissed her case based upon the fact that the condition and existence of the napkins on the floor was known to Jane and was open and obvious. However, the appellate court ruled that there was a duty to keep the restaurant premises in a “reasonably safe condition” and whether the danger of slipping on that napkin was open and obvious was an issue of comparative negligence for a jury to decide.

Here’s Some Advice If You Had A Slip And Fall Accident Because Of A Loose Object On A Restaurant Floor

A good piece of advice if you have been harmed by a slip and fall at a restaurant, 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.

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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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