Last Update: 12/15/16
There are certain places, especially in South Florida, where the environment itself makes an area somewhat risky to walk across. For example, steps and stairs near a swimming pool or on a boat dock, are likely to have water splashed upon them periodically – people should be warned to be careful as they walk around and through these locations.
A lot of times, you will find permanent warning signs like yellow warning tape that clearly states something like “caution” or “watch your step” or both. The tape is inexpensive, and it can be purchased at a lot of places.
Does the “Watch Your Step” Tape Mean You Have No Injury Claim Against The Property Owner?
If you slip and fall in an area where there is yellow warning tape, do you assume the risk and bear all of the financial responsibility just because the property owner laid down some tape? Or, do you still have a case and claim against the property owner for your injuries and against their insurance policy?
In Florida, premises liability law controls the answer to these questions.
Florida Slip and Fall Statute 768.0755
In recent years, the Florida Legislature passed a new law that helps defendants (Property Owners) and places a larger burden on injury victims. Florida Statute 768.0755 states as follows:
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.
As explained by the Florida Third Court of Appeals last year in the 2013 case of KENZ v. Miami-Dade County:
We begin our analysis by reviewing the requisite elements necessary to plead and prove a negligence cause of action. The three elements a plaintiff must plead and prove in a cause of action sounding in negligence are: (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. Tieder v. Little, 502 So. 2d 923, 925 (Fla. 3d DCA 1987). Specifically, a business owner owes two duties to a business invitee: (1) to take ordinary and reasonable care to keep its premises reasonably safe for invitees; and (2) to warn of perils that were known or should have been known to the owner and of which the invitee could not discover. Delgado v. Laundromax, Inc., 65 So. 3d 1087, 1089 (Fla. 3d DCA 2011).
By requiring that the plaintiff prove “that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it,” section 768.0755(1) does not create any new element of a cause of action for negligence. Rather, by requiring that the plaintiff prove actual or constructive knowledge, the statute codifies a means and method by which a plaintiff shows that the defendant-business establishment has breached its duty of care. Cf. Delgado, 65 So. 3d at 1089 n.1 (stating in dicta that section 768.0755 defines “how a breach of duty is proven by requiring proof of actual or constructive knowledge”). In other words, the statute simply means that in establishing the element of breach of duty, the plaintiff has the burden of producing evidence of actual or constructive knowledge.
Does An Injury Victim Win Just Because A Dangerous Condition Existed on The Business Premises?
The existence of yellow warning tape provides evidence that 1) the defendant (owner) knew the area was risky and 2) he or she took steps to protect people from harm. However, does the use of warning tape provide a complete defense for an owner? No.
Florida business owners cannot protect themselves from negligence liability by simply using warning tape in certain areas of their business premises. If they did, you’d sure see a lot of yellow caution tape out there!
And, the use of the yellow warning tape does not change the burden placed upon the injury victim to prove the dangerous condition caused their injury. A victim will need to give a plausible explanation as to why he or she didn’t avoid the area. Other questions will be asked, including:
- Did the victim’s own negligence contribute to their injury?
- If so, how does their own carelessness impact the value of any injury claim?
- Is a victim’s negligence a complete bar to an injury claim?
- How does Florida law treat comparative negligence?
What Should You Do?
A good piece of advice if you have been harmed in 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) to answer your questions.
- Slip and Falls in Florida – What is the Law?
- I Slipped and Fell at the Store But There Was a Wet Floor Sign: Do I Have a Case? In Florida, Maybe.
- Stair Fall Injury Claims
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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