Slip and Falls in Florida – Ask An Attorney

What does an injured person have to prove in order to receive compensation under Florida’s slip and fall law? Will video surveillance help a slip and fall claim? Does Florida law impose a duty on land owners to provide a safe environment? Below, Alan Sackrin does his best based upon his 30+ years of experience to answer these questions and many other frequently asked slip and fall questions with links to relevant articles about these questions.

Is it hard to recover compensation if I slip and fall on water or some other substance in a business?

Florida’s slip and fall law relating to business establishments has evolved tremendously over the last fifteen years. In 2010, the Florida legislature made it more difficult to sue and recover damages from slip and falls in business establishments such as grocery stores and office buildings that were caused by a transitory foreign substance. One still can recover damages, but it’s harder than it used to be because you have to prove the business owner had knowledge of the dangerous condition (actual knowledge or constructive knowledge) and prove the owner should have taken action to remedy it. A “transitory foreign substance” can refer to water, a grape, or some type of liquid on the floor. Something that’s not supposed to be there is transitory and “foreign.”

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What does an injured person have to prove to receive compensation under Florida’s slip and fall law?

In Florida, if a person slips on a transitory foreign substance in a business establishment, the injured person has to prove that the business establishment had actual knowledge of that condition (or constructive knowledge) and prove the business should have taken action to remedy it. Actual knowledge is difficult to prove. To prove knowledge in court, a victim must get somebody (the injured person or a witness) to say something like, “Well, the store employee said after the incident, ‘Oh, we knew about it, we were going to clean it up.'” Although this does happen once in a while, it’s not often that an individual could prove that the business establishment, grocery store, office building, race track, etc., actually knew about the item on the floor at the time of the incident.

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What is constructive knowledge?

A victim can prove constructive knowledge of a dangerous condition on a floor through circumstantial evidence. Circumstantial evidence shows that the dangerous condition (the item on the floor) existed for such a length of time that in the exercise of ordinary or reasonable care, the business establishment should have known of the condition. Constructive knowledge can also be proven by whether or not the condition occurred over and over again. If so, the business should know that incidents will happen at times and take some action to prevent them from occurring.

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Is it difficult to prove a slip and fall case?

Slip and fall cases on items on the floor are many times not easy to prove. I often have clients who come in and say, “I slipped on their floor. The business is responsible, because I’m on its property.” Nothing could be further from the truth.

Over the years, there have been various cases in Florida in which victim’s cases have been thrown out of court because they claimed they were in the grocery store and they slipped on a little water, yet were unable to prove where the water came from or how long it was there; without any such evidence, the judge ultimately must throw the case out of court. However, there are cases in which the judge has let the jury determine whether the item has been on the floor long enough that the defendant or business establishment should have known about it. For example, if there’s evidence that someone slipped on water from a melting ice cube, or maybe it was really dirty around the area and there were cart marks through the liquid on the floor, it would show that it was there for ten, fifteen minutes. Again, it’s very, very hard to prove.

However, there are times when it’s not so difficult to prove a case. Let’s say that there’s water that was coming from a leak in the roof. In that case, one can sue for negligent maintenance of the roof or one can prove that this leak could have occurred over and over again, which is constructive knowledge that the business knew they had the leak and knew this was going to happen with a certain amount of frequency.

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Will video surveillance help a slip and fall claim?

What’s becoming more and more interesting is that many business establishments now have in-store or in-establishment surveillance.

Stores like Walmart and Target will try to prevent a victim from seeing the surveillance videos, but the judges routinely allow it to be seen by the victim. A lot of times releasing the video to the victim benefits the business because the surveillance shows some other reason for the fall (when that happens, the lawsuit usually ends pretty quickly).

Notwithstanding this issue, if you are hurt in a slip and fall in Florida, you should ask that the surveillance videos be preserved. And, you should do so as soon as possible because some businesses will tape over their footage every twenty-four or forty-eight hours.

Sometimes a store will tell you in a lawsuit that yes, there was surveillance, but there wasn’t any surveillance at that part of the store, so it wasn’t captured on video. If possible, it is important to get the video not only at the time of the incident, but also for the hour or two before the incident because maybe there was something that was on the floor for a while that a store employee should’ve seen.

A lot of times, a store (especially Target) requests that the judge allow it to take the victim’s deposition to see if the victim will tell the truth before turning over the surveillance. Some judges allow for this, some judges don’t.

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What is the duty of a business establishment to prevent a slip and fall?

A business establishment does not have a duty to exercise perfect care under Florida law, which is why they’re not responsible for every slip and fall that occurs in their store. However, a business owner or operator has a duty to use reasonable care to protect the business establishment’s customers from foreseeable harm.

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Is it easier for a victim to prove a case if he or she trips over a display at a store?

There are slip and falls in Florida where the victim falls over a display that has been placed by the store operator in a dangerous location. In these cases, the victim does not have to show actual knowledge of the dangerous condition as it was the owner or operator that was negligent for placing the display in the first instance.

There are also cases of negligence, especially against Home Depot as well as grocery stores (ex. Publix, Winn-Dixie, Walmart), where serious injuries have been caused by products on high shelves which are only reachable by store employees using ladders or forklifts. When these items are stacked or shelved improperly, resulting in an item falling and injuring a customer, there is also an inference of negligence on the part of the store operator as it could only have been its employees who shelved the product negligently. In these instances, there’s no way a customer is going to be able to reach these products. In other words, some dangerous conditions that exist in stores, such as improperly positioned displays and improperly stacked or shelved products, most likely resulted from some negligent action on the part of the business establishment and its employees.

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What does Res Ipsa Loquitur mean?

There’s something in the law called res ipsa loquitur, a fancy way of saying “the thing speaks for itself,” or some incidents that occur by themselves lead to an inference of negligence. To be clear, however, a little bit of water on a floor does not lead to an inference of negligence. In some instances, when there’s something in the exclusive control of the entity you’re suing and there’s no real way that someone else could have caused the incident, the jury can infer that there was negligence just by the happening of the incident. Negligent security, negligent stacking, negligent placement and negligent maintenance of equipment (for example, water leaking from a freezer) are all other areas of negligence where this inference may be made.

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Can someone sue the city for falling on a sidewalk? 

The most common type of personal injury case against governmental entities, especially cities in Florida, is for not properly maintaining sidewalks. When the slabs of a sidewalk are 3/4 of an inch, even 1/2 an inch or more apart it can create a tremendous tripping hazard, especially with elderly people. These falls can result in very serious injuries. As a result, governmental entities are responsible to maintain their sidewalks, even when the sidewalks are uprooted because of an adjacent property owner’s trees.

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What are the most common conditions why people sue for a staircase slip and fall?

Many lawsuits are filed against business establishments because staircases aren’t well maintained. Stairs get greasy and have debris left on them. In many case there’s also inadequate lighting that may not let you see sufficiently. Additionally, handrails or railings become loose and damaged. There’s also codes pertaining to the landings of stairs, meaning the stair where you put your foot down has to be a sufficient length to hold your foot.

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What are the most common slip and falls that occur at condominiums and apartment complexes?

There are slip and fall claims involving apartment complexes that aren’t being well-maintained including sidewalks that are broken, falls in the pool area or bathrooms, falls in entrance ways because of missing or damaged floor mats, falls in parking garages from a substance on the floor or on well stops or on speed bumps (not painted), lighting that is broken or inadequate, and concrete that’s chipped and not repaired because the property owners don’t want to spend the money to repair these things.

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What are the most common reasons for hotel slip and falls?

Hotels have their own sidewalks, interior walkways and stairs. Guests are frequently walking around barefooted coming from a pool, so the hotel has to make sure that the surface is not super slippery when wet. There are surfaces that are not dangerous to walk on just because they’re wet, but if it’s too smooth of a surface and gets wet, it’s a slip hazard and is considered negligent.

Likewise in hotel bathrooms: there are many slip and fall cases involving bath tubs and showers that do not have slip-resistant strips or mats. For example, when you take a shower and the flooring is super slick or smooth and then you step on the flooring outside of the shower, you just go flying. The hotel has either failed to use nonskid strips or the bathtub is just so worn that it’s just way too slippery.

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What evidence should you gather to prove your slip and fall case?

It’s not that easy to prove these claims, but they are provable. If you’re at the scene and you’re hurt, try and take pictures or have someone else take pictures. These days, most people have cell phones, so taking pictures or videos is easier to do.

Taking immediate pictures or video is one of the first things that could be used in proving your slip and fall case: a picture or a video of the scene as it existed shortly after the incident. If you wait until weeks or months later to take photographs of the scene then it’s really not relevant.

The second thing to do is to report the incident in addition to trying to remember anything the hotel manager, hotel employee, or business establishment employee told you. Sometimes they say things that they really shouldn’t say. They might say, “Yes, we knew about it. We were about to replace this.” Those types of statements can be used against the establishment in a lawsuit because it’s a statement by one of its employees.

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How can experts help your slip and fall claim?

Sometimes you need testimonies from experts on the “coefficient of friction” to determine the slipperiness of a substance or the slipperiness of a surface. There are codes that talk about what the coefficient of friction needs to be in order to be considered a safe walking surface. The problem with coefficient of friction experts is that in some cases by the time the expert goes out and examines the surface it could be weeks or months later, and the establishment will lie and say, “This doesn’t show the conditions,” or, “This isn’t representative of the conditions at the time of the fall, and so it can’t be used in evidence,” especially if what the expert finds is favorable to the plaintiff.

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Do your injuries justify a lawsuit?

Unfortunately, some slip and fall lawsuits involve a cost-benefit analysis. If the injury is minor then no matter how good the case is, from a liability standpoint, the recovery is likely not going to be large enough to warrant filing a lawsuit. However, a lot of times in slip and fall cases the injuries can be quite severe because when you slip, you have no control over how your body falls.

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What are the most common types of injuries that occur from slip and falls?

Common injuries that may require surgery include broken elbows, to damaged shoulders, and injured ankles.

Sometimes when someone slips and falls, they get outstretched, which can result in injuries to their shoulders. They could tear rotator cuffs or labrums, get impingement syndrome, fracture their shoulder, or they can dislocate their shoulders. If they land hard on their shoulders, they can get what’s called an “impact injury,” where their shoulder is jammed into their body.

Ankle injuries are also devastating injuries that can result from a slip and fall. When you’re walking and suddenly feel your foot slipping and it turns to the side, you can have a serious ankle fracture. The fracture can be so severe that it can require orthopedic surgery. That surgery can result in hardware being used to correct the fracture involving months and months of rehabilitation and therapy, tens of thousands of dollars of medical bills, retraining to walk, interfering with your ability to lead your normal life, and causing tremendous economic and emotional strain on you.

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Are slip and falls harder to prove than other negligence cases?

Slip and falls in Florida are generally not as easy to prove as are car accident cases, but many times the injuries are harder for the insurance company to dispute. It’s hard to dispute a very serious fracture that shows up immediately after a fall, when the insurance company is going to say, “Okay, we agree that this happened from the accident.”

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What other types of premises liability injury cases are there?

Most premises liability cases involve slips and falls. We discussed the burden in those cases and what you have to prove, but there are other types of injuries/ cases that involve premises liability and store owner liability. One area that has evolved over the last several decades is negligent security cases. Negligent security cases are, again, very difficult cases to win, but they usually involve very serious injuries in which somebody is badly injured or even killed in a parking lot or in a shopping mall. The claim in such cases is that the owner or operator of the mall, business establishment or hotel did not provide adequate security.

Inadequate security might not just be in the form of security guards, armed or unarmed, but could be in the form of insufficient lighting. Lighting is a tremendous deterrent. In cases where people are attacked in parking lots, one allegation is that there was insufficient lighting. In order to prove these cases, you have to show that either in the immediate vicinity of that business establishment, or even on the business establishment, there’s a history of fairly significant criminal conduct. This should have warranted a reasonably prudent business establishment to put in some precautionary security measures, whether it’s lighting, the existence of cameras, or even armed/unarmed security guards. What makes these cases harder is you have to show, through expert testimonies in the area of security and in the area of crime prevention, that these security measures would have probably prevented the crime from occurring, and therefore the injury from occurring.

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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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