Understanding what those courts have said tells you exactly what you need to prove, what Publix will argue, and why the specific facts of your fall matter more than almost anything else.
The Core Legal Problem in Produce Section Cases
Under Florida Statute 768.0755, an injured person who slips on a transitory foreign substance, a grape, a banana peel, a puddle from the misting system, must prove that Publix had actual or constructive knowledge of that condition and should have taken action to remedy it. Constructive knowledge means the condition existed long enough that Publix should have found it through reasonable inspection.
The produce section creates a particularly difficult version of this problem. Produce falls off displays constantly. Misting systems create recurring wet conditions by design. A grape that has been on the floor for 30 seconds looks almost identical to one that has been there for 20 minutes. Unlike a spill of a colored liquid where cart marks and dirty edges suggest age, a fresh grape looks like a grape.
This is why produce section cases live or die on the specific evidence of how long the hazard was on the floor, and why getting that evidence quickly, before Publix cleans the area, is critical.
What Florida Courts Have Said About Produce Section Falls
The most significant Florida case on this issue is Owens v. Publix Supermarkets, Inc., a case that is part of our own appellate case law library at hallandalelaw.com/publix-cases. In Owens, a woman slipped and fell on a discolored piece of banana on the Publix floor. The trial court entered judgment in favor of Publix because the plaintiff failed to present evidence that Publix had constructive knowledge of the banana being on the floor. The appellate court affirmed that result.
But the case is more nuanced than a simple defense win. The Florida Supreme Court addressed Owens and held that the condition of the banana, specifically that it was discolored, raised a basis for establishing the store’s constructive knowledge. The reasoning was that a banana becomes discolored over time. Whether the discoloration occurred before the banana fell or while it was on the floor is a question for the jury. And the failure of the store to sweep floors regularly is a factor the jury can consider in determining whether Publix should have known the banana was there. See Owens v. Publix Supermarkets, Inc. – 802 So. 2d 315.
This holding is directly useful to plaintiffs in produce section cases. The condition of the produce that caused the fall is evidence of how long it had been on the floor. A flattened grape, a dried or dirty banana peel, a piece of fruit with cart marks through it, all of these are circumstances a jury can use to infer the hazard existed long enough for Publix to have found it.
A more recent case makes a different point. In Dominguez v. Publix Super Markets, Inc., 187 So. 3d 892, also in our case law library, Caridad Dominguez slipped and fell on laundry detergent that had spilled when a bottle fell from a Publix shelf. A Publix assistant grocery manager was examining shelves at the opposite end of the aisle when the bottle fell. The video showed the manager straddling the spill and bending over to right the bottle nine seconds after it fell. Four seconds later, Dominguez rounded into the aisle and slipped.
The Dominguez case illustrates the other side of the constructive knowledge issue. When the hazard was created only seconds before the fall and no reasonable inspection could have discovered it in that time, the case is extremely difficult. The manager was right there and still could not have prevented it. Thirteen seconds from spill to fall is not constructive knowledge.
What both cases together tell you: the time between when the hazard appeared and when you fell is the central question in every produce section case. The evidence that answers that question, photographs, surveillance footage, the condition of the produce itself, maintenance logs, inspection schedules, determines the outcome.
What Evidence Wins Produce Section Cases
The evidence that most consistently allows a produce section case to survive summary judgment and get to a jury involves one or more of the following.
The condition of the produce itself. A discolored, flattened, partially dried, or dirty piece of produce suggests it had been on the floor for some time. Photograph it immediately and from close range before anyone cleans it up. Once it is gone, this evidence is gone.
Cart marks or foot marks through the substance. If other shoppers or employees walked through or rolled a cart through the liquid or produce before you fell, those marks are visible and photographable evidence that the condition existed long enough for others to pass through it without it being cleaned.
Surveillance footage of the period before the fall. The most powerful evidence in a produce section case is footage showing the hazard sitting on the floor while employees moved through the area without addressing it. This requires a preservation letter to be sent quickly, Publix’s footage is overwritten on a loop and may be gone within 24 to 72 hours. Read: What if the store says there is no video of my fall?
Maintenance and inspection logs. Publix maintains logs of when employees inspect and clean each section of the store. If the produce section had not been inspected for an extended period before your fall, that gap is evidence that Publix did not exercise the reasonable care required under Florida Statute 768.0755. Obtaining these logs requires filing a lawsuit and going through the discovery process. Publix does not produce them voluntarily.
Prior incident reports from the same location. If other customers have slipped in the same area of the same Publix store, that history supports the argument that the condition occurred with regularity and was foreseeable. Florida Statute 768.0755 specifically recognizes that constructive knowledge can be proven by showing a condition occurred on a regular basis. Note: Florida courts have limited discovery on prior incidents to the specific store location, not the Publix chain as a whole. See: Publix Super Markets, Inc. v. Roth 355 So. 3d 1056.
The Misting System Issue
Many Publix produce sections use overhead misting systems to keep produce fresh. These systems are a recurring source of litigation because the water they spray creates wet floor conditions by design, not by accident. When a customer slips on water that originated from the misting system, the constructive knowledge argument is different from a random spill. Publix created the condition. They know it produces water on the floor. The question becomes whether they took adequate steps, floor drainage, non-slip matting, wet floor signs, appropriate inspection frequency, to manage a hazard they created intentionally.
This shifts the legal analysis in a way that is more favorable to the plaintiff. You do not need to prove how long the water had been on the floor. You need to prove that Publix created a recurring wet condition and failed to adequately manage it. That is a different and often stronger argument.
One of Alan’s Publix Produce Section Cases
Among the sample of Publix cases Alan Sackrin has settled over the past two decades, the settlement of I.J. v. Publix Super Markets, Inc. for $28,500 arose from a slip and fall in the produce department with minor injuries and no fractures. That result in a case without surgical injuries demonstrates that produce section cases with solid liability evidence have real settlement value even when the damages are not catastrophic. See the full sample of Alan’s Publix cases. Many additional settlements are subject to confidentiality agreements that prevent disclosure. These figures represent a sample from the last two decades only, Alan’s practice against Publix spans 40 years.
What Should You Do Now?
If you fell in the Publix produce section, the most time-sensitive actions are photographing the produce that caused your fall before it is cleaned up, and getting a lawyer involved quickly enough to send a preservation demand for surveillance footage before the loop overwrites it. Both of those windows close within hours.
Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation, over the phone or in person, to evaluate the specific facts of your produce section fall and tell you honestly whether the evidence supports a claim worth pursuing.
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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Related:
- Hurt at Publix? What to Do in the First 24 Hours
- Publix Slip and Fall Cases Alan Sackrin Has Settled and Won
- How Publix Defends Slip and Fall Cases in Florida
- The Store Says There Is No Video of My Fall, Do I Still Have a Case?
- Grocery Store Slip and Fall, How to Prove Your Claim
- Florida Slip and Fall FAQs
- See all Florida Slip and Fall Resources
