Posted By Alan Sackrin on February 4, 2016
Our economy depends upon thriving industries which produce tax revenues for the government coffers as well as creating jobs for Floridians throughout the State. In order to protect these businesses, our legislature has passed laws which allow them to growth as well as encourage businesses from other parts of the country (and the world) to come to the Sunshine State.
These incentives have helped boost the South Florida area, particularly the Broward County and Miami areas, into a global arena where we enjoy a favorable international reputation. Did you know that if Florida were a separate country, its economy would rank 18th largest in the world? The continuing growth and success of businesses here in Florida is important to all of us.
However, that does not mean that Florida business can act unfettered. Florida businesses are regulated for the public interest. And one of the big areas of regulation involves safety issues, and keeping customers and clientele of the profit-making enterprises safe while they are on commercial property.
Accidents will happen, and when they do Florida law will look to that business to take responsibility for any lapses in safety on their premises. This is the basis of our premises liability law.
For more on Florida premises liability law, check out our earlier posts which include:
- What Type Of Legal Duty Does A Florida Property Owner Have For Injuries To Visitors?: Florida Premises Liability’s Invitee, Licensee, Trespasser Distinctions
- Duty to Warn of a Dangerous Condition in Florida
- Is A Loose Object on the Floor A “Dangerous Condition?
Homeowners vs. Business Owners in Premises Liability
Home owners, however, are not in business. They don’t invite guests onto their property for the purpose of making a profit. Under Florida law, this distinction — the intent for having someone on your property — is an important factor in determining what duty is owed to keep that person safe.
If you’re motivated by money, then you will be expected to take extra safety precautions. If you’re not motivated by money, then the law that applies may be different. Which means that when someone is hurt in a slip and fall accident, the location of their accident can make a big difference in how a personal injury lawyer will approach a claim, and how the lawyer will build a case in the event that claim is denied by the business owner’s insurance carrier.
Business Slip and Fall Claims Have Special Law to Follow: Florida Statute 768.0755
In Florida, a business must be careful to keep its visitors safe from things like floor mats, wet floors, or electric cords that might cause someone to trip and fall and suffer injuries as a result. These are considered “dangerous conditions” where it’s reasonable to expect that someone might be hurt in a fall. The business is legally required to warn customers of any dangerous condition on their premises, and to take steps to fix the problem in a reasonable amount of time.
Slip and fall accidents on business property happen almost every day here in Florida. They have earned special treatment up in Tallahassee. How? Florida has its own special “slip and fall law” just for businesses.
Several years ago, a special statute was passed by the Florida Legislature specifically on this issue. Florida Statute 768.0755 deals with slip and fall accidents at a “business establishment” here in Florida.
This slip and fall law delineates exactly what an accident victim must provide as evidence in their slip and fall claim against that business. This includes the “actual or constructive knowledge” of the “dangerous condition.”
There’s even more to do under this Florida law for a business slip and fall case. Accident victims must prove “constructive knowledge” of the business in one of two ways, for instance. Some argue that the Florida slip and fall law works to help businesses by placing this increased burden of proof on accident victims. That may be true – but it is a controversy that may not matter when the slip and fall accident happens at someone’s home.
Are Home Slip and Fall Accidents Covered by Florida Statute 768.0755?
The law is specific: it applies only to slip and fall accidents that happen on business or commercial property. It does not apply to home owners. Homeowners in Florida may not be required to put up red flags to warn someone who is visiting their house that there is a loose floor mat next to the garage door, or that there are lots of obvious electric cords tangled on the floor near the TV.
In your own home, after you mop, you do not have to put up those yellow “wet floor” signs that you may see any day of the week down at the Publix grocery store.
Duty of Home Owners To Their Guests
Home owners have responsibility to keep visitors safe, of course. In Florida, if you invite someone over to watch the Super Bowl, for instance, you must use reasonable care to keep and maintain your property so that it’s in reasonable safe condition. You also have a duty to warn your guests of hidden dangers that might hurt them: if there’s a loose step on the back deck, then you need to let them know about it.
In other words, if you as a home owner know about a danger, then let your guest know about it and fix it. Keep up your property so there aren’t known hazards.
However, your duty as a home owner to your guest does not extend as far as a business owner to its customer. If you actually know about a problem, then you have a legal duty to take care of it. However, the law may not impose “constructive knowledge” upon the private home owner like it does on commercial enterprises. See, Florida Statute 768.0755.
The Case of the Florida Mother-in-Law Who Slipped and Fell on the Kitchen Rug
In the case of McFadden v. Fiori, 488 So. 2d 92 (Fla. Dist. Ct. App. 1986), the trouble all started at the McFaddens’ home when David McFadden’s mother in law, Mrs. Renata Fiori, came to visit. David and Penny McFadden were responsible home owners, and they kept their home owners’ insurance policy with State Farm current and paid up. They also kept their home reasonably maintained and in good repair.
Mrs. Fiori was aware that Penny had a throw rug on the kitchen floor that might “crumple up” sometimes. She didn’t move the rug — she was a considerate mother and that wasn’t her place: it wasn’t her house, it was Penny’s home.
However, Mrs. Fiori did talk about the rug with Penny, telling her that it was a danger and that she was afraid she might slip on it and fall. Penny explained that she had put a rug down in front of the sink to keep water off the terrazzo floor.
Penny didn’t move the rug. Penny never warned her mom about the rug. Neither did David.
Then one day during her visit, Mrs. Fiori was helping her daughter Penny in the kitchen. As she was putting away the dishes, she turned from the kitchen sink to put away a knife and as she turned, sure enough, she slipped on that rug and fell. She was seriously hurt — so much so that she required surgery for a fractured right hip.
Mrs. Fiori filed a claim with the McFaddens’ insurance carrier. They refused to pay. So, Mrs. Fiori was left with no choice but to sue her own daughter and son-in-law as well as their carrier for damages in a Florida personal injury lawsuit.
The case went before both the trial and reviewing court before it was decided. And, the McFaddens and their insurance carrier won. Why? They were home owners. If this had been a slip and fall in a restaurant or hotel, for example, things might have been very different for Renata Fiori.
Since Mrs. Fiori testified that she was wary of the kitchen rug “crumpling up,” she had equal knowledge with her children that the rug might not stay put, and flat on the floor. All that she had to do, the appellate court explained, was move the rug.
The courts wouldn’t find a legal duty on the home owners in this situation. If this had been a kitchen in an executive suite down by the beach, run by a business, then different duties would apply.
A similar slip and fall accident happened in the case of Harvey v. Bryant, 238 So.2d 462 (Fla. 1st DCA 1970).
The Case of the Tidy Aunt and the Kitchen Rug
In Harvey v. Bryant, Aunt Mary was sick and needed help around the house, so she asked her niece by marriage, Vivian, to come over and help her. One day, as Vivian was walking into the kitchen to get some ammonia for Aunt Mary, she slipped and fell. Vivian testified that she wasn’t sure what happened to her – just that she had fallen and was hurt.
Sure enough, the insurance carrier wouldn’t settle and a lawsuit was filed. Evidence was provided to the court that the reason Vivian slipped and fell was because there was a throw rug on the kitchen floor that caused her to lose her footing.
Seems that the kitchen floor had a good polish on it, and the rug wasn’t in it usual place. This rug wasn’t new: it was two years old. And Aunt Mary kept a clean house: that kitchen throw rug had been washed every week since she got it.
No one — neither Aunt Mary or Vivian or anyone else for that matter — considered the trusty old kitchen throw rug to be a big danger. So, Florida law would not hold the home owner, Aunt Mary, responsible for being negligent and causing the accident that her guest suffered.
Why? As the reviewing court in that case explained, when a home owner invites someone into their home, they are not taking on the job of being an insurer of that guest’s safety while the guest is there. Doesn’t matter how long their visit is — they could be staying for a couple of hours, or much longer, like Vivian who was helping her aunt.
Florida law will allow a home owner, like Aunt Mary (or Penny in the earlier case) to polish their kitchen floors until they shine and scatter throw rugs around those kitchens without having to take on special legal duties because they have done so.
If Vivian (or Renata Fiori in the above case) were to win damages from these home owners for negligence, then they have to show the home owner acted in an “affirmative act of negligence” in how they kept their kitchen.
If Aunt Mary had polished her kitchen floor in an unusual way, or with a strange product, that made the floor particularly dangerous, then Vivian might have been covered. But there were not any facts submitted that Aunt Mary’s “… floors were in a different condition than would have resulted from proper waxing and placing a throw rug thereon.”
Florida Injury Lawyer and the Home Slip and Fall Claim
If you have been injured on someone else’s private property – their home or condo – then your situation is different under Florida law than if you had the exact same kind of accident, and the exact same kind of injury, at a business or commercial enterprise.
This is because businesses and home owners are treated differently under Florida premises liability law.
Having an experienced Florida personal injury lawyer to help you sort through the facts and proceed with your claim against the home owners’ insurance coverage can be extremely beneficial in these situations. Home owners insurance adjusters are ready to deny these slip and fall claims, that’s standard operating procedure for them most of the time.
A higher legal burden does not mean that your slip and fall accident at someone’s home will not be covered by their insurance. You just need to know how Florida law applies in your situation.
A good piece of advice if you have been harmed by a slip and fall, is to at least 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, whichever you prefer) to answer your questions.
Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.