CopyCited 45 times | Published | Florida 4th District Court of Appeal | 2014 WL 714706, 2014 Fla. App. LEXIS 2578
...(“Pembroke Lakes”), and Millard Mall Services, LLC (“Millard”), appeal the final judgment awarding June McGruder $269,049.50 following a slip and fall accident. Pembroke Lakes and Millard raise four issues: (1) the trial court erred by denying a motion for directed verdict, (2) the trial court erred by determining section 768.0755, Florida Statutes (2010) did not apply retroactively, (3) the trial court abused its discretion by denying a motion for mistrial, and (4) the trial court abused its discretion by denying a post-verdict motion to conduct juror interviews....
...We conclude the trial court properly denied the Mall’s motion for directed verdict and the court did not abuse its discretion by denying the motion for mistrial following McGruder’s improper arguments. We also affirm the trial court’s decision to not apply section 768.0755 retroactively, and we certify conflict with the Third District on that issue....
...ruder of the spill, allowing the spill to remain on the floor, and failing to have a proper maintenance and clean-up plan in place to prevent spills from remaining on the floor. Before trial, Pembroke Lakes and Millard moved for a determination that section 768.0755, Florida Statutes (2010), applied retroactively and would be the operative statute for the trial....
...Pembroke Lakes and Millard argued their motion for directed verdict should have been granted because McGru-der failed to show that Pembroke Lakes and Millard had actual or constructive knowledge of the spill or that Pembroke Lakes and Millard breached their duties of care under either sections 768.0710 or 768.0755. Pembroke Lakes and Millard also argued their motion to have section 768.0755 apply retroactively and their motion for mistrial should have been granted....
...Lakes and Millard to pay McGruder $134,524.75 each. Pembroke Lakes appeals the denial of its post-verdict motion. We affirm the trial court’s decisions regarding the directed verdict and the mistrial without discussion. Retroactive Application of Section 768.0755 We first address the issue of whether section 768.0755, Florida Statutes (2010), applies retroactively....
...r’s actual or constructive knowledge as “a required element of proof to this claim.” See § 768.0710(2)(b), Fla. Stat. (2008). Another and substantial revision was enacted in 2010. The legislature repealed section 768.0710 and replaced it with section 768.0755, Florida Statutes (2010) and therein provided an effective date of July 1, 2010. In revising the law and repealing section 768.0710, the legislature did not state the new statute should apply retroactively. Section 768.0755 is entitled “Premises liability for transitory foreign substances in a business establishment” and provides: (1)If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must pr...
...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. § 768.0755, Fla. Stat. (2010). The most significant change between sections 768.0710 and 768.0755 concerned prior notice of a dangerous condition....
...ructive knowledge of the dangerous condition.” Additionally, the new statute does not contain any language regarding the owner’s negligent maintenance, inspection, repair, warning, or mode of operation. With that overview, we turn now to whether section 768.0755 applies retroactively....
...Ins. Guar. Ass’n v. Devon Neighbor *425 hood Ass’n,
67 So.3d 187, 195 (Fla.2011) (quoting Menendez v. Progressive Express Ins. Co.,
35 So.3d 873, 877 (Fla.2010)). As to the first prong, legislative intent, the legislature gave no indication in section
768.0755 that the statute was to be applied retroactively....
...Laforet,
658 So.2d 55, 61 (Fla.1995) (“The general rule is that a substantive statute will not operate retrospectively absent clear legislative intent to the contrary, but that a procedural or remedial statute is to operate retrospectively.” (citations omitted)). Thus, the issue is whether section
768.0755 is procedural or substantive....
...The Court decided that application of the asbestos law to plaintiffs who had an already accrued cause of action was “impermissible because it violates the due process clause of the Florida Constitution.” Id. In Kenz , the Third District thoroughly analyzed these principles and concluded: [S]ection 768.0755 [the new 2010 statute] does not operate to alter a prima facie case for a negligence claim....
...Here, a plaintiff who has an accrued cause of action under section 768.0710 [the older *426 2002 statute] because of an injury due to a transitory foreign substance or object in a business establishment, continues to have the same cause of action under
768.0755 — unlike the claims discussed in American Optical, the cause of action continues to exist. Actual or constructive knowledge is not a “new” required element of a prima facie case under section
768.0755; rather, it concerns evidence, the burden of producing which is upon the plaintiff, that the jury must consider in determining whether there has been a breach of duty. Kenz,
116 So.3d at 466 . Respectfully, we disagree with the Kenz court’s conclusion because the 2010 statute, section
768.0755, reinserts the pre- Owens knowledge element into slip and fall claims. See Kelso v. Big Lots Stores, Inc., No. 8:09-cv-01286-T-EAK-TGW,
2010 WL 2889882 , at *2 (M.D.Fla. July 21, 2010) (“[Section
768.0755] adds a new element to the claim, creating a new legal obligation and attaching new legal consequences to events that took place before the statute’s enactment; therefore, the plaintiffs substantive rights are affected.”)....
...A comparison of the language used in revising the statutes compels this result. Section 768.0710(2)(b), the 2002 statute, states “[a]ctual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim,” while section 768.0755(1), the newer statute, states “the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition.” The shift from 768.0710 to 768.0755 was far more than a simple procedural change to the burden of proof....
...Under the 2010 statute, however, the same plaintiff would be unable to successfully assert such a cause of action, no matter how persuasive or compelling the evidence the plaintiff had in support of the claim. We also respectfully disagree with the Kenz court’s conclusion that applying section 768.0755 retroactively would not abolish a plaintiffs cause of action....
...n without the owner having knowledge of the spill would be completely unable to pursue their causes of action if the 2010 statute was applied retroactively. If these plaintiffs were injured before the effective date of the statute, the imposition of section 768.0755 would result in a wholesale abolition of their accrued causes of action....
...That type of impediment to a preexisting cause of action is constitutionally impermissible. See Am. Optical,
73 So.3d at 133 . For these reasons, we affirm the trial court’s decision to apply the 2002 statute (section 768.0710) rather than the 2010 law (section
768.0755), and certify conflict with the Third District’s Kenz decision....
...essarily liable to McGruder for the negligence attributed to Pembroke Lakes. Thus, it was proper to have the jury assign neghgence to Pembroke Lakes and Millard. Conclusion We affirm the trial court’s decision to apply section 768.0710 rather than section 768.0755, and we certify conflict with the Third District’s decision in Kenz ....
...oke Lakes for the negligence attributed to Millard. We affirm the other issues raised by Pembroke Lakes without comment. Affirmed in part, reversed in part, and remanded; conflict certified. STEVENSON and LEVINE, JJ., concur. . Sections 768.0710 and 768.0755 relate to premises liability tort actions arising from slip and falls due to foreign transitory substances in business establishments. Section 768.0710(2)(b), Florida Statutes (2008), states ‘‘[ajctual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim.” Section 768.0755(1), Florida Statutes (2010), added a requirement that 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.” ....
CopyCited 36 times | Published | Florida 3rd District Court of Appeal | 2011 Fla. App. LEXIS 8958, 2011 WL 2496658
...e maintenance, inspection, or repair of its business premises. Accordingly, we conclude that the trial court correctly found that Laundromax was entitled to judgment as a matter of law. Affirmed. . The statute has since been repealed and replaced by section 768.0755 (2010), which defines how a breach of duty is proven by requiring proof of actual or constructive knowledge by providing that: (1) If a person slips and falls on a transitory foreign substance in a business establishment, the injured...
CopyCited 26 times | Published | Florida 3rd District Court of Appeal | 2017 Fla. App. LEXIS 1109
...4th DCA 2014). However,
where a business invitee slips and falls on a “transitory substance” in a business
establishment as occurred here, proof of the breach element of the claim against an
owner of the establishment is statutorily constrained by section 768.0755 of the
Florida Statutes (2013). The statute reads as follows:
768.0755....
CopyCited 15 times | Published | Florida 1st District Court of Appeal | 2014 Fla. App. LEXIS 12736, 2014 WL 4086798
...He could not recall if any previous falls had occurred in the area Appellant fell, and he did not know what caused Appellant to fall. *911 Based on this evidence, Winn-Dixie filed a motion for final summary judgment, arguing that the recently-enacted section 768.0755, Florida Statutes, requires “proof of actual or constructive knowledge of the presence of a transitory foreign substance,” which can be proven by “showing that the dangerous condition existed for such a length of time that in t...
...Appellant argued that Winn-Dixie should have either installed the warning cones or rainy-weather mats in the affected area. In granting Winn-Dixie’s motion and entering final summary judgment, the court found: In 2010, the Florida legislature enacted Section 768.0755, Florida Statutes, the clear intent of which is to re-position the burden of proof in constructive knowledge negligence actions fully onto a plaintiff. Although this action arose before the enactment of Section 768.0755, it has now been held that the statute has retroactive application....
...There is no other evidence in the record to support a contention that WD had constructive knowledge of the “un-noticeable” drops of water on the floor. The court found that the store manager’s testimony was insufficient to meet Appellant’s burden under section 768.0755, and that it “believe[d] that if that statute is to have any meaning, and if the clear legislative intent is to be given any effect, the record facts in this case must defeat the plaintiffs claim.” The court denied Appellant’s motion for rehearing, and this appeal followed....
...1.510(c). On reviewing a summary judgment order, an appellate court must “view the facts in a light most favorable to the nonmoving party .... ” Maronda Homes, Inc. of Fla. v. Lakeview Reserve Homeowners Ass’n, Inc.,
127 So.3d 1258, 1268 (Fla.2013). Section
768.0755, Florida Statutes (2010), provides: (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....
...ory foreign substance” requiring remedial action, and affirm the trial court’s entry of final summary judgment. AFFIRMED. RAY and OSTERHAUS, JJ., concur. . This court, in dicta, reached a different conclusion concerning the retroactive effect of section 768.0755 in Feris v....
CopyCited 9 times | Published | Florida 3rd District Court of Appeal | 2013 WL 1748954, 2013 Fla. App. LEXIS 6592
LAGOA, J. Carrie Kenz (“Kenz”) appeals from a final summary judgment entered in favor of Miami-Dade County and Unicco Service Company (collectively “Appellees”). She alleges that the trial court erred in applying section 768.0755, Florida Statutes (2010), rather than section 768.0710, Florida Statutes (2002), to her slip-and-fall action....
...blishment, “[a]ctual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim.” § 768.0710(2)(b), Fla. Stat. (2002). On July 1, 2010, after Kenz filed suit but before trial commenced, section 768.0755, Florida Statutes (2010), 2 took effect and superseded section 768.0710. 3 For the purposes of this discussion, section 768.0755 effectively returned Florida law to its pre-Owens status, and provides that a person who slips and falls on a transitory foreign substance in a business establishment “must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.” § 768.0755(1), Fla. Stat. (2010). On June 7, 2011, Appellees filed a motion seeking a determination that section 768.0755 was applicable to Kenz’s case, arguing that the statute should apply retroactively because it is procedural in nature, rather than substantive. On October 28, 2011, the trial court granted the motion and ruled that section 768.0755 was to be given retroactive effect. On December 22, 2011, Appellees filed a motion for final summary judgment, which asserted that Kenz failed to prove Appellees had actual or constructive knowledge of the dangerous condition, as required by section 768.0755....
...t “[substantive law prescribes duties and rights, whereas procedural law concerns the means and methods to enforce those duties and rights.” Weingrad, 29 So.3d at 409 (citing Alamo Rent-A-Car, Inc. v. Mancusi,
632 So.2d 1352 (Fla.1994)). Whether section
768.0755 applies to Kenz’s case, therefore, turns on whether the statute is substantive or procedural in nature. Appellees argue that section
768.0755 is procedural in nature because it merely codifies a change to the plaintiffs burden of proof in a slip-and-fall case....
...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”)....
...Because “[rjetroactive application of the Act here would operate to completely abolish the [ajppellees’ vested rights in accrued causes of action for asbestos-related injury,” the Act could not be constitutionally applied retroactively to the appellees. Id. at 133 . *466 In contrast, section 768.0755 does not operate to alter a prima facie case for a negligence claim. Here, a plaintiff who has an accrued cause of action under section 768.0710 because of an injury due to a transitory foreign substance or object in a business establishment, continues to have the same cause of action under 768.0755— unlike the claims discussed in American Optical, the cause of action continues to exist. Actual or constructive knowledge is not a “new” required element of a prima facie case under section 768.0755; rather, it concerns evidence, the burden of producing which is upon the plaintiff, that the jury must consider in determining whether there has been a breach of duty. Accordingly, because we conclude that section 768.0755 is procedural in nature, and applies retroactively to Kenz’s claim, we affirm the entry of summary judgment in favor of Appellees....
...of proof to *463 this claim. However, evidence of notice or lack of notice offered by any party may be considered together with all of the evidence; and (c) The failure to exercise reasonable care was a legal cause of the loss, injury, or damage. . Section 768.0755 reads as follows: 768.0755....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal
...2d DCA 1993) (whether a
department store created a dangerous condition by the manner in which
it mounted a display rack is a jury question).
Markowitz,
826 So. 2d at 259-60.
2 We recognize that this no longer holds true in premises liability cases involving a
slip and fall on a transitory foreign substance. See §
768.0755, Fla....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2013 WL 3968197, 2013 Fla. App. LEXIS 12070, 38 Fla. L. Weekly Fed. D 1657
...Santos thereafter sought to depose Pub-lix and requested that Publix produce all incident reports relative to any occurrence at kiosks located in Publix stores within the State of Florida. Publix objected and moved for a protective order, contending that the burden of proof standard set forth in section 768.0755, Florida Statutes (2011), did not require it to produce the information Santos sought....
...irrelevant discovery. See Board of Trs. of Internal Improvement Trust Fund v. American Educ. Enters., LLC,
99 So.3d 450, 457 (Fla.2012) (citation omitted). In addition, because the trial court’s discovery order is limited to its interpretation of section
768.0755, we review the interpretation of the statute de novo....
...We agree with Publix that the trial court departed from the essential requirements of law and misconstrued section 786.0755 when it required Publix to provide incident information relating to all Publix stores located in Florida. We conclude that the trial court misinterpreted section 768.0755 because it allowed Santos to procure information that is irrelevant with respect to her burden of proof under the applicable statute. In effect, the order grants Santos “carte blanche” discovery to this irrelevant information. Section 768.0755(1) states, “[i]f a person slips and falls on a transitory 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.” § 768.0755(1), Fla. Stat. (2010). Further, the statute states, “[t]his section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.” § 768.0755(2), Fla. Stat. (2011). When the legislature repealed section 768.0710, Florida Statutes (2009), and enacted section 768.0755, the “business establishment” language of subsection one replaced the “person or entity” language, which is still found in subsection two. Compare § 768.0710, Fla. Stat. (2009), with § 768.0755, Fla. Stat. (2010). Section 768.0710 focused primarily on the actual or constructive knowledge of the “person or entity in control of the business premises.” See § 768.0710 (2009), Fla. Stat. The legislature’s enactment of section 768.0755 instead focuses on the particular “business establishment” where the slip and fall occurred....
...An injured person must now prove that the particular “business establishment” where the injury occurred had actual or constructive knowledge of the dangerous condition and discovery should be restricted to information on the particular establishment. See § 768.0755(1), Fla....
...ss where the slip and fall occurred, not the total network of stores which the “person or entity [Publix] in possession or control of the business premises” owns and operates. The use of the term “business establishment” found in the current section 768.0755, instead of the use of the term “person or entity” found in the repealed section 768.0710, evidences the legislature’s intent to reject the previous language in the repealed section and construe premises liability based on the actual or constructive knowledge of the particular place or business establishment where the accident occurred. Section 768.0755(1) also employs the definite article “the” to modify “business establishment,” further evidencing the legislature’s intent to limit the statute’s scope to a specific and identifiable location....
...order for Publix to produce incident reports that dealt with slips and falls at kiosks located at all Publix stores in the State of Florida. To hold otherwise grants Santos “carte blanche” irrelevant discovery, which falls outside the context of section 768.0755....
CopyCited 5 times | Published | District Court, M.D. Florida | 2015 U.S. Dist. LEXIS 172973, 2015 WL 9488953
...y of the evidence matters. The jury’s findings are irrelevant.” Connelly v. Metropolitan Atlanta Rapid Transit Authority,
764 F.3d 1358, 1363 (11th Cir.2014) (quoting Hubbard,
688 F.3d at 716 ). II. Steak N’ Shake’s Knowledge Florida Statute
768.0755 provides, in relevant part, that: (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 danger...
...he transitory substance was not a required element of proof); and (c) the failure to exercise reasonable care was the legal cause of the injury. On July 1, 2010, the Florida Legislature repealed Fla. Stat. § 768.0710 and replaced it with Fla. Stat. § 768.0755 , entitled “Premises liability for transitory foreign substances in a business establishment.” This new statute is no longer limited to business invitees, but rather applies to “a person” who slips and falls on a transitory foreign substance in a business establishment and suffers injury....
...The statute added a new element to the injured person’s burden of proof — the injured person must now also prove that the business establishment “had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.” Fla. Stat. § 768.0755 (1)....
...Worley,
157 So.3d 552 (Fla 1st DCA 2015); Pembroke Lakes Mall Ltd. v. McGruder,
137 So.3d 418, 424 (Fla. 4th DCA 2014); Kelso v. Big Lots Stores, Inc.,
2010 WL 2889882 (M.D.Fla. July 21, 2010), Mills v. Target Corp.,
2010 WL 4646701 (M.D.Fla. Nov. 9, 2010) (all holding that Fla. Stat. §
768.0755 is a substantive rule of law which creates a new element of proof in a premises liability negligence action). 4 However, the stat *1301 ute “does not affect any common-law duty of care owed by a person or entity in possession or control of a business.premises.” §
768.0755(2). At trial, the Court held that the law of Florida1 with respect to determining a claimant’s legal status in premises liability cases is now governed exclusively by Fla. Stat. §
768.075 (the trespasser statute) and Fla. Stat.- §
768.0755 (the premises liability statute)....
...That is to say, it does not seem to me that .there’s anyplace in the law of Florida anymore for the concept or the term.of a licensee. You’re either — if you’re not the owner, you’re either a trespasser or an invitee, the latter being governed with respect to business establishments by 768.0755. And one of the things that impels me ' to that result is the fact that 768.0755 is a statute, as I’ve already mentioned, passed as recently as 2010, which seems to me would trump any prior decisional law that would in any way be inconsistent with the provisions of that statute. (Doc. 54, pp. 124-25). The Court further held that the provision in Fla. Stat. § 768.0755 (2) that the statute “does not affect any common-law duty of care owed by a person or entity in possession or control of....
...129, 134). In other words, the Court concluded that the “uninvited licensee” category had been subsumed by these two statutes and no longer existed. , Steak N’'Shake disagrees, arguing that two federal district court decisions interpreting Fla. Stat. § 768.0755 establish that the uninvited licensee legal status continues to exist....
...Big Lots Stores, Inc.,
2010 WL 2889882 (M.D.Fla. July 21, 2010)), and Mills v. Target Corp.,
2010 WL 4646701 (M.D.Fla. Nov. 9, 2010). Neither of these unpublished decisions even mention the.term uninvited licensee, and do not discuss in any way how Fla. Stat. §
768.0755 impacts this,common law legal status. Rather, both of these cases simply hold that Fla. .Stat, §
768.0755 creates a new element of proof, and therefore is a substantive rule of law that cannot apply retroactively. Moreover, the Court has been unable to locate any decisions from any state or federal' court holding under Florida law, after the enactment of Fla. Stat. §
768.0755 , that the “uninvited licensee” legal status remains viable. Rather, the one decision that mentions “uninvited licensees” — Denniser v. Columbia Hospital Corp of South Broward,
162 So. 3d 26 (Fla. 4th DCA 2014) — does not discuss Fla. Stat. §
768.0755 , and uses the terms “uninvited licensee”- and “trespasser” interchangeably....
...Seaberg’s fall, and two witnesses (Deborah Cole and Heather Seaberg) testified that a substance was on the floor immediately before and after Ms. Seaberg’s fall. . , . . But see Kenz v. Miami-Dade County,
116 So.3d 461 (Fla. 3d DCA 2013) (holding that Fla. Stat. §
768.0755 is a procedural statute that does not create a new element of proof in a premises liability cause of action, but merely codifies a means and method by which a plaintiff shows that the defendant-business establishment has breached its duly of care) and Vallot v. Logan's Roadhouse, Inc., 567 Fed.Appx. 723 (11th Cir.2014) (noting that the Florida Supreme Court has not yet decided whether Fla. Stat. §
768.0755 is a substantive or procedural rule of law). . Fla. Stat. §
768.0755 refers to "a person” who is injured....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2014 WL 1696898, 2014 Fla. App. LEXIS 6292
...overed it; and that he suffered bodily and other injury as a direct and proximate result of Club Country’s negligence. 1 Club Country responded with an answer and affirmative defenses. Club Country filed a motion for summary judgment, arguing that section 768.0755, Florida Statutes (2010), requires a plaintiff to establish the defendant’s knowledge of the dangerous condition....
...element of proof to this claim. However, evidence of notice or lack of notice offered by any party may be considered together with all of the evidence; and (c) The failure to exercise reasonable care was a legal cause of the loss, injury, or damage. Section 768.0755, Florida Statutes (2010), which became effective July 1, 2010, approximately a month before Feris filed his complaint, provides that: (1) If a person slips and falls on a transitory foreign substance in a business establishment, the...
...that the party in control of the premises owed a duty of reasonable care to the plaintiff; that the defendant breached the duty of care (and had actual or constructive knowledge of the existence of the breach or dangerous condition when moving under section 768.0755); and that the defendant’s breach was the legal cause of the plaintiffs injuries or damages....
...the dangerous condition’s existence “for a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or [that] [t]he condition occurred with regularity and was therefore foreseeable.” § 768.0755....
...Accordingly, under either statute, Feris has met his burden of pleading and offering sufficient evidence as to the breach of duty element of a Florida transitory substance/premises liability claim in order to survive a motion for summary judgment. Retroactive Application Because of our holding, whether section 768.0755 applies retroactively is not dispositive of the issue at bar....
...Finally, the Court observed that courts may apply statutory construction of the “language, structure, purpose, and legislative history of the enactment” to determine if a statute is intended to be retroactive. Id. at 196-97 (citations omitted). We note that the law enacting section 768.0755 contains no express statement as to the Legislature’s intent on retroactive application....
...re us on this appeal. . In Kenz v. Miami-Dade County,
116 So.3d 461 (Fla. 3d DCA 2013), the Third District reviewed whether the trial court erred by granting summary judgment for the defendant county based on the court’s retroactive application of section
768.0755, instead of the older section 768.0710....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2015 WL 2078744
...dentified
liquid in an elevator on the College’s Coconut Creek campus on August
25, 2011. Broward College moved for summary judgment, arguing the
Plaintiff could not prove actual or constructive knowledge of the dangerous
condition, as required by section 768.0755, Florida Statutes (2011)....
...issues of material fact remain, and that Broward College violated its
common law duty of care. Because we disagree with Appellant’s
contentions, we affirm the entry of summary judgment and write for the
limited purposes of 1) establishing that section 768.0755, Florida Statutes
(2011), does apply to public institutions of higher learning, like Broward
College, and 2) reaffirming that there are situations when it is appropriate
to grant summary judgment in favor of a defendant in a slip and fall suit
brought under section 768.0755, Florida Statutes (2011).
I. Broward College is a “Business Establishment”
Section 768.0755, Florida Statutes (2011), states:
(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...
...owned entities, such as Miami International Airport (Kenz v. Miami-Dade
Cnty.,
116 So. 3d 461 (Fla. 3d DCA 2013)) and a U.S. Postal Service facility
(Kertz v. U.S.,
2013 WL 1464180 (M.D. Fla. Apr. 10, 2013)). Therefore, we
affirm the trial court’s application of section
768.0755, Florida Statutes
(2011), in this case.1
II....
...Broward College’s facilities manager, wherein she stated that her employer was
not a business establishment. This testimony is due no weight regarding a
question of law, i.e. the interpretation of statutory language such as the meaning
of “business establishment” under section 768.0755(1), Florida Statutes (2011).
3
In Delgado, the plaintiff slipped and fell in a laundry facility, claiming
that she slipped on water on the floor....
...or establish if anyone at Broward College had actual or constructive notice
of its presence. Moreover, no evidence was presented or argument made
that “[t]he condition [(an allegedly wet elevator floor)] occurred with
regularity and was therefore foreseeable.” § 768.0755(1)(b), Fla....
...or regular negligence on the part of employees of the College, this time
period does not warrant an inference of negligence.
Conclusion
5
The trial court correctly found that section 768.0755, Florida Statutes
(2011), applies to Broward College....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...In deciding
how to rule on a motion for directed verdict, the court must determine if any
reasonable evidence exists to support a jury verdict in favor of the non-movant.
Tylinski v. Klein Auto. Inc.,
90 So. 3d 870, 873 (Fla. 3d DCA 2012).
Pursuant to section
768.0755, Florida Statutes, Bellaiche was required to
prove that Publix had actual or constructive knowledge of a dangerous condition
created by a transient foreign substance that caused Bellaiche to slip and fall.
Encarnacion v. Lifemark Hosps. of Fla.,
211 So. 3d 275 (Fla. 3d DCA 2017); §
768.0755, Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2012 WL 2401790, 2012 Fla. App. LEXIS 10466
...Section 768.0710 became effective May 30, 2002. Ch. 2002-285, §§ 1-2, at 2125-26, Laws of Fla. Section 768.0710 was repealed effective July 1, 2010. Ch. 2010-8, §§ 2-3, at 182-83, Laws of Fla. The legislature replaced section 768.0710 with a new section 768.0755....
CopyPublished | Florida 3rd District Court of Appeal
...We affirm, as there were no genuine issues of material fact and
the undisputed material facts, viewed in a light most favorable to plaintiff,
failed to establish Winn-Dixie had actual or constructive notice of the
2
condition. See § 768.0755(1)(a)-(b), Fla....
...3d DCA 2020) (affirming summary
judgment where the record was “devoid of facts evidencing the length of time
the [substance] was on the floor, ‘the condition occurred with regularity and
was therefore foreseeable, or any other salient factor that would serve to
lawfully impute constructive notice to Ross”) (quoting § 768.0755(1)(b), Fla.
Stat....
...3d 275, 277-
78 (Fla. 3d DCA 2017) (holding “where a business invitee slips and falls on
a ‘transitory substance’ in a business establishment . . . proof of the breach
element of the claim against an owner of the establishment is statutorily
constrained by § 768.0755, Fla....
CopyPublished | Florida 5th District Court of Appeal
....” Williams v.
Weaver,
381 So. 3d 1260, 1264 (Fla. 5th DCA 2024).
“In actions arising from a plaintiff’s slip and fall on a
transitory substance in a business establishment, proof of the
breach element is ‘statutorily constrained’ by section
768.0755,
Florida Statutes.” Welch, 357 So....
...3d DCA 2017)).
That statute requires the plaintiff to “prove that the business
establishment had actual or constructive knowledge of the
dangerous condition and should have taken action to remedy it.”
Dolgen Corp., LLC v. Doty,
383 So. 3d 864, 867 (Fla. 5th DCA 2024)
(citing §
768.0755(1), Fla....
CopyPublished | Florida 4th District Court of Appeal
...hearsay “will not be available in admissible form at trial.” McMillian v.
Johnson,
88 F. 3d 1573, 1584 (11th Cir. 1996), aff’d sub nom McMillian v.
Monroe Cnty., Ala.,
520 U.S. 781 (1997).
Slip and fall in business premises cases are governed by section
768.0755, Florida Statutes (2020)....
...That statute provides, in
pertinent part:
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.
§ 768.0755(1), Fla....
CopyPublished | Florida 5th District Court of Appeal
...No. 5D2022-2821
LT. Case No. 2020-CA-0370
MAKAR, J., dissenting from denial of rehearing en banc.
En banc review in this personal injury case, which involves
the transitory foreign substance statute, section 768.0755(1),
Florida Statutes, is appropriate to ensure decisional uniformity1
in this class of summary judgment cases applying the statute.
Such cases are reviewed under a deferential standard of
appellate review that requires courts to view...
...decisions.”); 5th DCA IOP 6.4.
3
circumstantial evidence showing that [t]he 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[.]” § 768.0755(1)(a), Fla....
CopyPublished | Florida 3rd District Court of Appeal
PER CURIAM. Affirmed. Encarnacion v. Lifemark Hosps. of Fla. ,
211 So.3d 275 (Fla. 3d DCA 2017) ; Wilson-Greene v. City of Miami ,
208 So.3d 1271 (Fla. 3d DCA 2017) ; §
768.0755, Fla....
CopyPublished | Florida 3rd District Court of Appeal
...Eaton & Wolk, PL, and Douglas F. Eaton, for appellant.
Law Offices of Charles M-P George, and Charles M-P George;
Chartwell Law, and Derek H. Lloyd (Deerfield Beach), for appellee.
Before LOGUE, LINDSEY, and LOBREE, JJ.
PER CURIAM.
Affirmed. § 768.0755, Fla....
...3d DCA 2017) (“[W]here a business
invitee slips and falls on a ‘transitory substance’ in a business establishment
as occurred here, proof of the breach element of the claim against an owner
of the establishment is statutorily constrained by section 768.0755 of the
Florida Statutes (2013).”); Pembroke Lakes Mall Ltd....
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Mar 1, 2023
...was therefore foreseeable.
USCA11 Case: 22-10162 Document: 32-1 Date Filed: 03/31/2023 Page: 6 of 14
6 Opinion of the Court 22-10162
Fla. Stat. §
768.0755(1); see also Lago v. Costco Wholesale Corp.,
233 So. 3d 1248, 1250 (Fla. 3d DCA 2017) (“[I]n Florida Statutes sec-
tion
768.0755 the legislature modified a business’s duties when its
invitees are injured by ‘transitory foreign substances.’”)....
...See Owens v. Publix Supermarkets, Inc.,
802 So. 2d
315, 320 (Fla. 2001). In 2002, the Florida legislature revoked that knowledge
requirement in Florida Statute § 768.0710, but in 2010 it reinstated the require-
ment in Florida Statute §
768.0755. See Pembroke Lakes Mall Ltd. v.
McGruder,
137 So. 3d 418, 423–26 (Fla. 4th DCA 2014). Florida case law drawn
from before § 768.0710’s effective date and after §
768.0755’s codification
guides our analysis.
USCA11 Case: 22-10162 Document: 32-1 Date Filed: 03/31/2023 Page: 7 of 14
22-10162 Opinion of the Court 7
minutes or less is not enough time....
...But Florida law
does not demand direct evidence about who or what caused the
dangerous substance and when exactly it happened. Instead, cir-
cumstantial evidence that sufficiently establishes the dangerous
condition was present for a long enough period of time is enough.
See Fla. Stat. § 768.0755(1)(a)....
CopyPublished | Florida 5th District Court of Appeal
...matter of law.” Etheredge v. Walt Disney World Co.,
999 So. 2d 669,
671 (Fla. 5th DCA 2008).
In a slip and fall case involving a transitory substance in a
business, the breach element of the plaintiff’s claim “is ‘statutorily
constrained’ by section
768.0755, Florida Statutes.” Welch v.
CHLN, Inc., 357 So....
...Lifemark Hosps. of Fla.,
211 So. 3d 275, 278 (Fla.
3d DCA 2017)). That statute requires the plaintiff to “prove that
the business establishment had actual or constructive knowledge
of the dangerous condition and should have taken action to remedy
it.” §
768.0755(1), Fla....
CopyPublished | Florida 1st District Court of Appeal
...g Chick-fil-A’s having
actual or constructive knowledge of the presence of a foreign transitory substance
adjacent to its establishment. We determine that (1) section 768.0710, Florida
Statutes (2004), is the applicable law in this case because section 768.0755, Florida
Statutes (2010), cannot be applied retroactively to accidents occurring prior to July
1, 2010; and (2) the trial court erred in granting summary judgment because the
affidavit filed in opposition to the motion for summary...
... overcome all reasonable inferences which may be drawn in favor of the opposing
party.” Holl v. Talcott,
191 So. 2d 40, 43 (Fla. 1966).
Applicable Law Concerning Slip and Fall
There is a great deal of confusion surrounding the retroactive application of
section
768.0755, Florida Statutes, which became effective on July 1, 2010, and its
effect on how to review slip and fall cases that occurred prior to its effective date. 2
2
We specifically decline to address whether the granting of summary
judgment would have been appropriate under the new statutory section, section
768.0755, Florida Statutes (2010)....
...3d 531 (Fla.
1st DCA 2014), this court held the denial of summary judgment was in error even
(c) The failure to exercise reasonable care was a legal cause of the
loss, injury, or damage.
§ 768.0710, Fla. Stat. (2002).
In 2010, section 768.0710 was repealed and replaced with section 768.0755,
Florida Statutes, which states:
768.0755 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...
...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.
§ 768.0755, Fla....
...The Walker panel
distinguished Feris because in Feris, there was “‘active’ negligence by the
employees of the premises,” but in Walker, there was no “evidence of active
negligence by Winn-Dixie employees.” Walker, 39 Fla. L. Weekly at D1751.
Both cases discussed the retroactivity of section 768.0755, Florida Statutes.
The Walker panel never ruled specifically on the retroactivity issue because no one
challenged the applicability of the statute....
...Weekly at
D1751 n.1. The court, however, did recognize that there was a split of authority
concerning the applicability of that statute to accidents that occurred before its
effective date. See Kenz v. Miami-Dade County,
116 So. 3d 461 (Fla. 3d DCA
2013) (holding section
768.0755 could be applied retroactively); Pembroke Lakes
Mall Ltd. v. McGruder,
137 So. 3d 418 (Fla. 4th DCA 2014) (holding section
768.0755 did not have retroactive application); Feris,
138 So. 3d at 535-36
(indicating in dicta that section
768.0755 should not be applied retroactively).
7
The Feris court stated that because of the alleged active negligence “in
failing to exercise reasonable care in the maintenance, inspection...
...ute because it merely
changed the burden of proof for proving a slip and fall case. Kenz,
116 So. 3d at
464. The Kenz court found that requiring “[a]ctual or constructive knowledge is
not a ‘new’ required element of a prima facie case under section
768.0755, Florida
Statutes.” Kenz,
116 So. 3d at 466.
In Pembroke Lakes, the Fourth District disagreed with Kenz and stated in its
analysis:
Respectfully, we disagree with the Kenz court’s conclusion because
the 2010 statute, section
768.0755, reinserts the pre-Owens
knowledge element into slip and fall claims. See Kelso v. Big Lots
Stores, Inc., No 8:09-cv-01286-T-EAK-TGW,
2010 WL 2889882, at
*2 (M.D. Fla. July 21, 2010) (“[Section
768.0755] adds a new element
to the claim, creating a new legal obligation and attaching new legal
8
consequences to events that took place before the statute’s enactment;
therefore, the plaintiff’s substantive rights are affected.”)....
...A
comparison of the language used in revising the statutes compels this
result. Section 768.0710(2)(b), the 2002 statute, states “[a]ctual or
constructive notice of the transitory foreign object or substance is not
a required element of proof to this claim,” while section 768.0755(1),
the newer statute, states “the injured person must prove that the
business establishment had actual or constructive knowledge of the
dangerous condition.”
The shift from 768.0710 to 768.0755 was far more than a simple
procedural change to the burden of proof....
...Under the 2010 statute, however, the
same plaintiff would be unable to successfully assert such a cause of
action, no matter how persuasive or compelling the evidence the
plaintiff had in support of the claim.
We also respectfully disagree with the Kenz court’s conclusion that
applying section 768.0755 retroactively would not abolish a plaintiff’s
cause of action....
...having knowledge of the spill would be completely unable to pursue
their causes of action if the 2010 statute was applied retroactively. If
these plaintiffs were injured before the effective date of the statute, the
imposition of section 768.0755 would result in a wholesale abolition
of their accrued causes of action....
...But Glaze did not raise this issue below or on appeal in his initial brief. In
its answer brief, Chick-fil-A acknowledged that dicta in Feris v. Club Country of
Fort Walton Beach, Inc.,
138 So. 3d 531, 535 (Fla. 1st DCA 2014), which had
been recently decided, stated that section
768.0755’s displacement of section
768.0710 in 2010 was not meant to be retroactive; still, Chick-fil-A asserted,
summary judgment was appropriate under either statute....
...ion omitted). But we have chosen
to address the matter to eliminate confusion and provide clear guidance on a
district-wide basis. Thus, I have no disagreement with the conclusion, consistent
with the dicta in Feris, that the stricter standard of section 768.0755 that now
applies in these “transitory foreign substance” cases is not retroactive, a holding in
which I concur.
Beyond that, two concerns exist that prevent me from joining the remainder
of the panel’s opinion....
...It was not error at the time for her to do so; after
12
all, she was required to follow the Third District’s then-binding decision in Kenz v.
Miami-Dade County,
116 So. 3d 461 (Fla. 3d DCA), which ruled that section
768.0755 applied retroactively....
...the record is virtually silent as to the mall’s employees and its operations. The
apparent lack of evidence that Chick-fil-A was aware (or should have been aware)
of the puddle on the mall’s walkway—which would otherwise be the death knell of
a claim under section 768.0755 4—nonetheless is potentially probative under
section 768.0710, which states that “evidence of notice or lack of notice offered by
any party may be considered together with all of the evidence” in deciding the
negligence question....
CopyPublished | District Court of Appeal of Florida
breach element is “statutorily constrained” by section
768.0755, Florida Statutes. Encarnacion v. Lifemark
CopyPublished | Florida 4th District Court of Appeal
...5th DCA 2008)).
“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.” § 768.0755(1), Fla.
Stat. (2018).
Because no evidence indicated Publix had actual knowledge of the spill,
our analysis focuses solely on why the evidence is insufficient to prove that
Publix had constructive knowledge of the spill.
Section 768.0755(1) provides two ways in which a plaintiff can prove
constructive knowledge. A plaintiff can prove “[t]he 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[.]”
§ 768.0755(1)(a), Fla. Stat. (2018). Alternatively, a plaintiff can prove “[t]he
condition occurred with regularity and was therefore foreseeable.”
§ 768.0755(1)(b), Fla. Stat. (2018).
Here, the evidence is insufficient to prove, under either section
768.0755(1)(a) or (b), that Publix had constructive knowledge of the spill.
3
A....
...no responsibility to maintain Publix’s premises at the time of the spill.
Therefore, the non-delegable duty doctrine does not apply. Accordingly,
Publix cannot be held liable for the invitee’s negligence.
Conclusion
Section 768.0755 does not permit us to conclude that a business
establishment is liable for the negligent acts of a customer or invitee in the
absence of actual or constructive knowledge of a dangerous condition on
its premises created by the customer or invitee. Dangerous conditions are
often caused by such negligence. However, the Legislature made it
abundantly clear in section 768.0755 that for a business establishment to
be held liable, it must have actual or constructive knowledge of the
dangerous condition.
Because the evidence is insufficient for a reasonable jury to conclude
that Publix had actual or const...
CopyPublished | Florida 3rd District Court of Appeal
CopyPublished | Florida 3rd District Court of Appeal
...The transitory foreign substance statute provides that “[i]f 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.” § 768.0755(1), Fla....
...But we have more than just a puddle in the storage room.
Rather, Valdes testified as to the existence of footprints and smudge marks
1
The initial brief refers to Sutton as “the only published – and therefore
binding – Eleventh Circuit decision addressing Florida Statute §768.0755.”
But federal decisions don’t bind state courts on matters of state law and are
only as persuasive as their reasoning merits....
CopyPublished | Florida 3rd District Court of Appeal
...his
decision fails to satisfy [the] test of reasonableness.”); White v. Discovery
Commc’ns, LLC,
365 So. 3d 379, 385-86 (Fla. 1st DCA 2023) (holding that
the trial court did not abuse its discretion by declining to postpone a summary
1
Section
768.0755(1)(a) of the Florida Statutes provides as follows:
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...
...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[.]
§ 768.0755(1)(a), Fla....
CopyPublished | Florida 4th District Court of Appeal
...Centennial Ins. Co. v. Thynge,
234 So. 3d 824, 826 (Fla. 5th DCA 2017)
(internal quotation marks omitted).
In a slip-and-fall case involving a transitory substance in a business,
“the breach element of the plaintiff’s claim is statutorily constrained by
section
768.0755, Florida Statutes.” Dolgen Corp, LLC v. Doty,
383 So. 3d
864, 866–67 (Fla. 5th DCA 2024) (internal quotation marks omitted).
Section
768.0755, Florida Statutes (2018), governs liability for slip-
and-falls caused by transitory foreign substances in a business
establishment, and requires proof of actual or constructive knowledge of
the dangerous condition:
(1) If a p...
...e
that, in the exercise of ordinary care, the business
establishment should have known of the condition; or
2
(b) The condition occurred with regularity and was therefore
foreseeable.
§
768.0755(1)(a)–(b), Fla. Stat. (2018).
Enacted in 2010 to replace section 768.0710, section
768.0755 differs
from its predecessor in two ways: (1) by requiring proof of actual or
constructive knowledge of the dangerous condition as an element of the
claim; and (2) by removing language regarding the owner’s negligent
maintenance, inspection, repair, warning, or mode of operation. Pembroke
Lakes Mall Ltd. v. McGruder,
137 So. 3d 418, 424–26 (Fla. 4th DCA 2014).
In short, absent actual or constructive knowledge of the dangerous
condition, section
768.0755 does not allow for liability “based solely on the
business establishment’s general failure to maintain the premises.” N.
Lauderdale Supermarket, Inc....
CopyPublished | District Court of Appeal of Florida
CopyPublished | Florida 1st District Court of Appeal | 2015 Fla. App. LEXIS 10952, 2015 WL 4429170
...The Legislature has a history of classifying torts and applying specific laws only to certain tort classes. Examples of this abound in chapter 768, Florida Statutes, which covers torts that arise from negligence and shows how torts are categorized under the law. Such distinctions include section
768.0755, Florida Statutes, which governs "Premises liability for transitory foreign substances in a business establishment;” section
768.13, Florida Statutes, governing the Good Samaritan Act; and section
768.136, Florida Statutes, "Liability for canned or perishable food distributed free of charge.” ....
CopyPublished | Florida 4th District Court of Appeal
...The trial court orally granted summary
judgment, which was later memorialized in a written order, ruling that
appellant could not meet her burden regarding how long the water was on
the floor and thus could not establish appellees’ knowledge of the water
under section 768.0755, Florida Statutes (2018)....
...“A genuine dispute of material
fact exists if ‘the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.’” Perez v. Citizens Prop. Ins. Corp.,
345
So. 3d 893, 895 (Fla. 4th DCA 2022) (quoting In re Amends. to Fla. R. Civ.
P. 1.510,
317 So. 3d 72, 75 (Fla. 2021)).
Section
768.0755(1) provides that a person injured in a slip and fall at
a business “must prove that the business establishment had actual or
constructive knowledge of the dangerous condition and should have taken
action to remedy it.” The statut...
...established by showing: “(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.” § 768.0755(1)(a)-
(b), Fla....
CopyPublished | District Court of Appeal of Florida
because section
768.0755, Florida Statutes, 2 requires a plaintiff to 2 Section
768.0755, Florida
CopyPublished | Florida 1st District Court of Appeal
...Morris then sued in
premises liability, contending that the bank breached its duty to
maintain its grounds in a reasonably safe condition.
The trial court granted summary judgment in favor of the
bank. Both parties had focused on the operation of section
768.0755(1), Florida Statutes....
...(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.
§ 768.0755(1), Fla....
...used proper reasoning, or laid his conclusion on proper grounds,”
the question for the appellate court is “whether [the trial court’s]
conclusion is correct or incorrect”). That is what we do here.
While the parties focused on subsection one of section
768.0755, the operative provision is in subsection two, which
makes clear the statute “does not affect any common-law duty of
care owed by a person or entity in possession or control of a
business premises.” § 768.0755(2), Fla....
...Any person going upon such property,
under the undisputed facts and circumstances disclosed
by this record, was obligated to exercise a reasonable
degree of care for his own safety.
Night Racing Ass’n v. Green,
71 So. 2d 500, 503 (Fla. 1954).
Section
768.0755, by its own terms, does not create any duty
of care....
CopyPublished | Florida 3rd District Court of Appeal | 2016 Fla. App. LEXIS 1416, 2016 WL 403212
...obtain work product upon a showing of (1) relevance and particularized need and
(2) the inability to obtain the substantial equivalent without undue hardship. See
generally S. Bell Tel. & Tel. Co. v. Deason,
632 So. 2d 1377, 1384 (Fla. 1994).
We recognize that section
768.0755(1) provides that “[i]f a person slips and
falls on a transitory 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.” §
768.0755(1),
Fla....
CopyPublished | District Court of Appeal of Florida
breach element is ‘statutorily constrained’ by section
768.0755, Florida Statutes.” Welch, 357 So. 3d at 1278
CopyPublished | Florida 4th District Court of Appeal
...foreign object or substance
is not a required element of proof to this claim.” Ch. 2002-285, § 1, Laws
of Fla. (enacting § 768.0710, Fla. Stat. (2002)); see ch. 2010-8, § 2, Laws
of Fla. (repealing § 768.0710, Fla. Stat.). But when it enacted section
768.0755, Florida Statutes (2010)—the current premises liability statute
that governs this case—the legislature modified the duty owed by a
business to an invitee injured by a transitory substance. Lago,
233 So. 3d
at 1250. Section
768.0755 specifically places the burden on the plaintiff
to prove that the business establishment had constructive knowledge of
the hazard. Pembroke Lakes Mall Ltd. v. McGruder,
137 So. 3d 418, 424
(Fla. 4th DCA 2014); §
768.0755(1), Fla....
...(2) the fact that the condition occurred with such frequency that the owner
should have known of its existence.” Delgado v. Laundromax, Inc.,
65 So.
3d 1087, 1090 (Fla. 3d DCA 2011) (citing Schaap v. Publix Supermarkets,
Inc.,
579 So. 2d 831, 834 (Fla. 1st DCA 1991)); see also §
768.0755(1)(a)–
(b), Fla....
CopyPublished | Florida 4th District Court of Appeal
...4th DCA 2012), quoted in the majority, were incident reports
about the particular slip and fall in litigation in that case. Here, there is
no evidence that the quarterly reports meet this test.
Moreover, even if the quarterly reports could be considered work
product, the enactment of section 768.0755, Florida Statutes, concerning
premises liability for transitory foreign substances in a business
establishment, should make them discoverable. Enacted at the behest of
commercial interests, that statute requires an injured person to prove
“that the business establishment had actual or constructive knowledge of
the dangerous condition and should have taken action to remedy it.”
§ 768.0755(1), Fla....
CopyPublished | Supreme Court of Florida
...See art.
V, § 2(a), Fla. Const.
The Committee proposes deleting existing Note on Use 2 for instruction
401.20a in its entirety, and replacing it with the following: “For transitory foreign
substances in a business establishment, see F.S. 768.0755 and cases interpreting
it.” No amendments were proposed by the Committee to instruction 401.20a itself.
The Committee explains that its proposal stems from the repeal of section
768.0710, Florida Statutes, which previously governed claims for premises liability
for transitory substances in business establishments, and the 2010 enactment of
section 768.0755, Florida Statutes, which now governs such claims.
Prior to filing its report with the Court, the Committee published its proposal
for comment....
...Helen Homes of Kendall
Corp.,
826 So. 2d 256 (Fla. 2002); Owens v. Publix Supermarkets, Inc.,
802 So. 2d
315 (Fla. 2001); Melkonian v. Broward County Board of County Commissioners,
844 So. 2d 785 (Fla. 4th DCA 2003).For transitory foreign substances in a business
establishment, see F.S.
768.0755 and cases interpreting it.
b....
CopyPublished | Florida 4th District Court of Appeal
...was written in the disjunctive, the jury would be able to find Defendant
liable on the theory of negligent maintenance without being required to
make a finding Defendant had actual or constructive notice of the oily
substance on the floor. Defendant contended that, to be consistent with
section 768.0755, Florida Statutes (2014) (discussed below), the negligent
maintenance language needed to be removed or revised before the
instruction could be given to the jury....
...Plaintiff’s Claim — Premises Liability, on March 4, 2010. In re Standard Jury
Instructions In Civil Cases-Report No. 09-01 (Reorganization of the Civil Jury
Instructions),
35 So. 3d 666, 697 (Fla. 2010). Almost immediately thereafter, the
Legislature enacted section
768.0755, Florida Statutes, with an effective date of
July 1, 2010, the same effective date of the repeal of section 768.0710, Florida
Statutes....
...he evidence;
and
(c) The failure to exercise reasonable care was a legal
cause of the loss, injury, or damage.
§ 769.0710, Fla. Stat. (2009) (emphasis added).
However, in 2010, section 769.0710 was repealed and replaced with
section 768.0755, Florida Statutes, which now provides as follows:
(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 act...
...(b) The condition occurred with regularity and was
therefore foreseeable.
5
(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.
§
768.0755, Fla. Stat. (2010) (emphasis added).
Notably, section
768.0755 differs from its predecessor, section
768.0710, by not allowing for liability based solely on the business
establishment’s general failure to maintain the premises. Instead, section
768.0755 requires the plaintiff prove that the business establishment had
actual or constructive notice of the dangerous condition before liability
may be found. See Pembroke Lakes Mall Ltd. v. McGruder,
137 So. 3d 418,
424–26 (Fla. 4th DCA 2014) (discussing the differences between sections
768.0755 and 768.0710).
After section 768.0710 was repealed and replaced with section
768.0755, the Supreme Court Committee on Standard Jury Instructions
in Civil Cases (“Committee”) submitted a written report proposing an
amendment to instruction 401.20(a)....
...2019) (“The Committee
explains that its proposal stems from the repeal of section 768.0710,
Florida Statutes, which previously governed claims for premises liability
for transitory substances in business establishments, and the 2010
enactment of section 768.0755, Florida Statutes, which now governs such
claims.”).
However, the only amendment which the Committee recommended to
instruction 401.20(a) was replacing a note directing the parties to refer to
section 768.0710 and related case law with a note stating, “For transitory
foreign substances in a business establishment, see F.S. 768.0755 and
cases interpreting it.” Report No....
...possessor’s negligence toward invitees and invited licensees that do not
involve transitory foreign substances.” Id. (emphasis added). The
Committee further stated that instruction 401.20(a) should not be
redrafted until there is sufficient case law interpreting section 768.0755.
Id.
While Defendant’s motion for a new trial was pending before the trial
court, the Florida Supreme Court approved the Committee’s recommended
amendment to instruction 401.20(a)’s note....
...interested parties that this authorization forecloses neither requesting
additional or alternative instructions nor contesting the legal correctness
of [instruction 401.20(a)].” Id.
As the instant case involves “transitory foreign substances in a
business establishment,” section 768.0755 reasonably should be
referenced in framing jury instructions....
...That statute provides, in pertinent
part: “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.” § 768.0755(1), Fla.
Stat. (2014) (emphasis added).
Instruction 401.20(a) predates 768.0755’s enactment and does not
account for the statute’s requirement that an injured party in a slip and
fall case “must prove that the business establishment had actual or
constructive knowledge of the dangerous condition.” As noted earli...
...making
a finding as to actual or constructive notice. See § 768.0710(2)(b), Fla.
Stat. (2009) (“Actual or constructive notice of the transitory foreign object
or substance is not a required element of proof to this claim.”).
However, under section 768.0755, the new governing statute, a jury
cannot find liability in a case involving “transitory foreign substances in a
business establishment” unless it finds that the business establishment
7
had actual or constructive notice. See § 768.0755(1), Fla....
CopyPublished | Florida 3rd District Court of Appeal
...4th DCA 2015), we discern no error in the conclusion by
the lower tribunal that the evidence of record was insufficient to establish
appellees had sufficient “actual or constructive knowledge of [a] dangerous
condition” to take remedial action. § 768.0755(1), Fla....
CopyPublished | Florida 4th District Court of Appeal
...nmoving party, and
can affirm a directed verdict only where no proper view of the evidence
could sustain a verdict in favor of the nonmoving party.” Id. (quoting Frenz
Enters., Inc. v. Port Everglades,
746 So. 2d 498, 502 (Fla. 4th DCA 1999)).
Section
768.0755, Florida Statutes (2016), governs liability in premises
cases involving transitory foreign substances in a business establishment,
and provides:
4
(1) If a person slips and falls on a tran...
...(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.
§ 768.0755, Fla. Stat. (2016). The statute places the burden on the
plaintiff to prove actual or constructive knowledge by the premises owner
of the dangerous condition.
As indicated in section 768.0755, constructive notice may be inferred
from either: (1) the amount of time a substance has been on the floor; or
(2) the fact that the condition occurred with such frequency that the owner
should have known of its existence....
...reasonable inferences. The jury was left to speculate as to the existence
of the condition and Speedway’s constructive knowledge. Because of this,
the court erred in denying the motion for directed verdict.
8
Section 768.0755 requires the plaintiff to prove the premises owner’s
constructive knowledge of a dangerous condition which causes a slip and
fall on a transitory substance....
CopyPublished | Florida 3rd District Court of Appeal
...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 of which the
invitee could not discover.” Delgado,
65 So. 3d at 1089.
But in Florida Statutes section
768.0755 the legislature modified a
business’s duties when its invitees are injured by “transitory foreign substances.”2
See Walker v. Winn-Dixie Stores, Inc.,
160 So. 3d 909, 911 (Fla. 1st DCA 2014)
(“In 2010 the Florida legislature enacted Section
768.0755, Florida Statutes, the
clear intent of which is to re-position the burden of proof in constructive
knowledge negligence actions fully onto a plaintiff.” (quotation omitted)); see also
Encarnacion v....
...3d DCA 2017)
(“[W]here a business invitee slips and falls on a ‘transitory substance’ in a business
establishment . . . proof of the breach element of the claim against an owner of the
establishment is statutorily constrained . . . .”). Section 768.0755 provides:
(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...
...2001).
5
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.
§ 768.0755(1), Fla....
...constructive knowledge of
the slippery liquid substance on the entranceway floor.
Under similar facts, we have affirmed summary judgment for business
establishments in slip-and-fall cases. In Delgado, decided before the effective date
of section 768.0755, the plaintiff testified
she did not: (1) know where the water came from; (2) see water
anywhere else other than where she slipped; (3) know how long the
water was on the floor before she slipped; or (4) know of...
CopyPublished | Florida 5th District Court of Appeal
...2d 440, 442 (Fla. 1st DCA 1985) (“[I]t is
fundamental that the mere occurrence of an accident does not give
rise to an inference of negligence and that the plaintiff must show
that the condition complained of was an unreasonable hazard.”).
Section
768.0755(1), Florida Statutes (2017)—consistent with
the duty of care owed at Florida common law 1—“statutorily
constrain[s]” what a plaintiff must prove to establish a business’s
breach of that duty in a negligence action arising from a slip and
fall on a transitory foreign substance. See Welch,
357 So. 3d at 1278
(quoting Encarnacion v. Lifemark Hosps. of Fla.,
211 So. 3d 275,
278 (Fla. 3d DCA 2017)). Section
768.0755 states:
1 Section
768.0755(2) provides, “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.”
4
(1) If a person slips and falls on...
...(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.
§ 768.0755(1), Fla....
...e that:
“(a) [t]he dangerous condition existed for such a length of time
that, in the exercise of ordinary care, the [restaurant] should have
known of the condition; or (b) [t]he condition occurred with
regularity and was therefore foreseeable.” § 768.0755(1), Fla....
...ual knowledge of the substance
on the floor that he contends caused his fall.
5
knowledge of the existence of the dangerous condition. Sutton v.
Wal-Mart Stores E., LP, 64 F.4th 1166, 1172 (11th Cir. 2023)
(citing section 768.0755(1)(a) in rejecting Wal-Mart’s claim that
the plaintiff there failed to present evidence as to where the
substance came from and how and when it got on the floor); see
also Welch, 357 So....
CopyPublished | Florida 4th District Court of Appeal
...reasonable care was a legal
cause of the loss, injury, or damage. 1
1 Section 768.0710, Florida Statutes, was repealed by the Florida Legislature,
effective July 1, 2010. See Ch. 2010-8, Laws of Fla. At the same time, the
Legislature enacted section 768.0755, Florida Statutes. Id. Some courts have
concluded that section 768.0755 eliminated the statutory mode of operation
claim....
...and whether the accident that occurred was as a result of that negligence.”
Id. (citing Owens v. Publix Supermarkets, Inc.,
802 So. 2d 315 (Fla. 2001)).
2017 WL 417129, at *4 (M.D. Fla. Jan. 31, 2017). But, we need not address that
issue as this Court has previously held that section
768.0755 is only applicable
to claims arising on or after July 1, 2010....
