Last Update: 5/26/18
Proving the restaurant had actual or constructive knowledge of a dangerous condition.
In South Florida, we enjoy a large number and variety of restaurants where we can eat breakfast, lunch, or dinner 24/7 virtually every day of the year. From fast food franchises like McDonald’s, Burger King, or Subway, to family dining spots like The Cheesecake Factory, Denny’s, Duffy’s or The Ale House, as well as upscale restaurants such as Joe’s or Prime 112, the array of restaurants in Miami, Fort Lauderdale and West Palm Beach is mind-boggling. We all have had times where we have spent an hour or more deciding where to eat.
Although the only problem we usually have at a restaurant is the service or the food, slips and falls, with sometimes devastating injuries, do occur in restaurants with some degree of regularity.
Often water, grease, drinks, food, and napkins find their way on to a floor. An unsuspected patron, leaving his or her table to go to the restroom or to leave the restaurant, may slip and sustain a serious injury with life-long consequences.
However, injured restaurant customers are not automatically entitled to obtain compensation from the operator of the restaurant solely on account of slipping and falling as a result of some substance or item on the restaurant floor.
How Does a Restaurant Have to Act?
An owner and operator of a restaurant has a legal obligation to maintain the restaurant in a reasonably safe condition. The key word is REASONABLY! A restaurant operator does not have to be perfect in the care of the restaurant. Usually what constitutes reasonable care is a decision for a jury to make.
For example, if a customer at the table next to someone unknowingly spills some water on the floor and no restaurant employee is there to notice it, and 5 seconds later you get up and slip on that water injuring yourself, the restaurant is probably not going to be liable for the victim’s injuries as it can’t be said to have been negligent. Negligence is the failure to use reasonable care.
However, if it is a waitress, busboy or some other employee of the restaurant that inadvertently spilled water on the floor resulting in a slip and fall injury, then there is a much greater likelihood that a jury will conclude that the restaurant employee did not act with reasonable care.
A restaurant owner is responsible for the negligent acts of its employees while working, so long as what the employee was doing was within the scope of his employment.
What is Constructive Knowledge or Constructive Notice?
Unfortunately, many times when a customer slips and falls on a substance on the floor, it is virtually impossible to determine whether a customer or an employee substance. In these cases, the customer must somehow prove that an employee of the restaurant knew there was something on the floor and did not have it remedied or warn people of its existence, or that the substance or item on the floor was there for a sufficient length of time so that at least one employee should have known about the condition.
Proving that the substance was on the floor for a sufficient length of time so that it should have been noticed by the restaurant is called “constructive knowledge or constructive notice” of the substance, in contrast to actual knowledge or notice.
What Steps Can a Victim Take to Prove The Restaurant is Liable For His/Her Slip and Fall?
In order to prove that a restaurant employee either created the dangerous condition, knew, or should have known of the condition, a restaurant customer/victim should try to remain calm despite any serious pain and despite the initial embarrassment that may occur. If possible, the victim should take note of what caused them to slip and fall.
The victim should see if there are any stains on their clothes, see if anything is on the bottom of their footwear and make note of the physical characteristics of the item or substance.
The customer should also try to determine from where the substance came. If the victim sees a long streak of grease it might be reasonable for a jury to conclude that it had to have been a waitress or busboy that caused the substance to be on the floor. If possible, the victim or a witness should take photographs with a cell phone and perhaps take video as well.
The victim should absolutely REPORT the fall as quickly as possible if nobody saw the fall. An accident report will probably be prepared and the victim will be asked what caused the fall and what part(s) of the body did the victim hurt.
Most importantly, the victim needs to be truthful. If they are asked to sign an accident report, the victim should make sure it is accurate or not sign it and insist that it be changed.
More and more, slip and falls are captured on restaurant or store surveillance systems.
The victim should ask if the incident was captured on surveillance and insist that the restaurant preserve it as well as the period one or two hours before the incident. With this evidence, it may be possible to prove how long the substance was on the floor and how it came to be on the floor.
Surveillance systems are on a continuous loop and the incident may be erased within 24-48 hours. The lawyer the victim hires will ask the restaurant or its insurance company for the surveillance but many times that request is not made for days or weeks after the incident as most people do not hire lawyers until the nature and extent of the injuries are known.
Proving an Unsafe Condition
At restaurants like The Cheesecake Factory, the floor always seems to be slippery. Sometimes there are claims based on the type of flooring used or the type of waxing or floor polishing that is used created an unsafe condition.
Again, a victim should try to take note of the surface of the floor, even if he/she is in pain. The restaurant owner knows that from time to time there will be liquid substances on the floor and may have a duty to install flooring that is non-slip.
We all have been on surfaces that seem like ice when they are wet and others that seem safe even if wet. Even though one may not be able to prove for how long a liquid was on the floor or how it came to be on the floor, the restaurant may have a history of slip and falls that can be attributable partly due to the slipperiness of the floor itself.
A measurement called the coefficient of friction reveals just how slippery a floor is, although unless the coefficient of friction test is performed shortly after an incident, it may not be admissible in court.
Florida Law and Foreign Substances on The Floor of a Business Establishment
For slip and fall accidents occurring after July 1, 2010, Florida Statute 768.0755 (2010) governs slip and fall cases involving transitory substances on a floor of a business establishment such as a restaurant or a supermarket. That statute reads:
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.
What Kind of Compensation Can A Victim Recover If a Restaurant Breached Its Duty of Care?
Victims of restaurant slip and falls who sustain injuries are able to recover compensation for their medical bills, lost wages and pain and suffering if they can prove that the restaurant operator, or its employees was negligent. Again, negligence is defined by Florida law as “the failure to exercise reasonable care.”
What Should You Do Now?
A good piece of advice if you have been injured in a restaurant slip and fall is to speak with an experienced 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 evaluate your claim and 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.