What happens when there is no evidence that the property owner had actual knowledge of a hazardous condition on their property?

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Last Update: 6/12/18

According to Florida case law as of the date of this article, where there is no evidence of the property owner’s actual knowledge of the hazardous condition on their premises, the injury victim must proceed on the theory that the property owner had constructive notice.

See: Colon v. Outback Steakhouse of Florida, Inc., 721 So. 2d 769 (Fla. Dist. Ct. App. 3d Dist. 1998)

The Case Of The “Offending Tuber”

In Colon, Georgina Colon’s evening at her local Outback Steakhouse was ruined when she slipped and fell on a mashed potato lying on the floor.  Mrs. Colon had gone with her husband and a friend to Outback to have dinner.

When their name was called, and as the hostess was showing them to their table, Ms. Colon slipped on a “mushy” potato near another table.  Testimonial evidence confirmed that no one saw the potato on the floor before she fell: not the patrons at that table; not the Outback employees; and not Mr. and Mrs. Colon and their friend.

Mrs. Colon testified that after she fell, she noticed that the potato had a dirty appearance.

Georgina Colon sued the Outback Steakhouse of Florida, Inc. for the accident damages she sustained when she slipped and fell (including her pain and suffering).  On appeal, Outback was held to have a duty of care.

Related: Duty to Warn of Dangerous Conditions in Florida

For a Florida plaintiff to succeed in a slip-and-fall accident claim, she must prove that the premises owner (Outback) either had (1) actual knowledge of the dangerous condition or (2) that the owner had constructive notice of the condition in that the condition existed for such a length of time that in the exercise of ordinary care, the premises owner should have known of it and taken action to remedy it. See Winn-Dixie Stores, Inc. v. Mazzie, 707 So.2d 927, 928 (Fla. 5th DCA 1998)Pearce v. Publix Supermarkets,675 So.2d 710, 710 (Fla. 3d DCA 1996)Brooks v. Phillip Watts Enters., Inc., 560 So.2d 339, 341 (Fla. 1st DCA 1990)Gaidymowicz v. Winn-Dixie Stores, Inc., 371 So.2d 212, 213-14 (Fla. 3d DCA 1979).

Mrs. Colon did not have any evidence that Outback had actual notice of the hazardous condition of its property. No one saw the potato before Mrs. Colon fell on the floor.

Therefore, Mrs. Colon’s claim had to be based upon the theory that Outback had constructive notice.

In order to purse that theory, she would need to provide evidence that leads to an inference that the substance had been on the floor for a sufficient length of time that Outback, in the exercise of reasonable care, should have known about it.  See, Gonzalez v. B & B Cash Grocery Stores, Inc., 692 So.2d 297, 298 (Fla. 4th DCA 1997) (citing Thoma v. Cracker Barrel Old Country Store, Inc., 649 So.2d 277, 278 (Fla. 1st DCA 1995)).

The key here is Mrs. Colon’s description of the potato being “dirty” — Outback argued that this must be because Ms. Colon herself mashed and dirtied it when she stepped on it.

The court agreed with Mrs. Colon:  it is also entirely possible to infer from the dirty appearance of the potato that it had gone undetected on the floor for a sufficient period of time to place Outback on constructive notice.

Additionally, the location of the “offending tuber” at the time of Mrs. Colon’s fall, where it was  some distance from any dining table, gives a strong indication the potato could only have been dropped by a server or other employee.  If so, then this is arguably actual knowledge on the part of Outback of its existence. See Donoho v. O’Connell’s, Inc., 13 Ill.2d 113, 148 N.E.2d 434 (1958), and cases cited; Keene v. Cracker Barrel Old Country Store, Inc., 853 S.W.2d 501 (Tenn.App.1992).

QUICK FACT: A victim of a property or business owner’s negligence has 4 years from the date of the incident, such as a slip and fall, to file a lawsuit based on premises liability. However, if a death resulted from the incident, the deadline to file a lawsuit is 2 years.

Read: Restaurant Slip and Falls – How to Prove a Claim in Florida

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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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