Before 2001, Florida courts required that plaintiffs in slip and fall cases involving transitory objects or substances prove that the business owner had actual or constructive knowledge of the "dangerous condition." However, the Florida Supreme Court, in the case of Owens v. Publix Supermarkets (2001), altered the burden of proof, reasoning that once the Plaintiff establishes that he or she fell as a result of transitory foreign substance, the burden shifts to the business owner to show that it exercised reasonable care. However, the Legislature in 2002, enacted Fla. Stat. §768.0710, which shifted the burden back to the plaintiff to prove that the business owner "acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises." Although the enactment of this statute was a victory for business owners, this statute was faced with criticism for being shrouded in ambiguity since it did not expressly require plaintiffs to prove that the business owner had actual or constructive notice of the "dangerous condition." The Florida legislature responded by repealing Fla. Stat. §768.0710 and replacing it with Fla. Stat. §768.0755 (2010), which expressly requires slip and fall plaintiffs to prove, among other things, that the business owner had actual or constructive knowledge of the "dangerous condition."
There has been much debate over whether the provisions of Fla. Stat. §768.0755 (2010) would apply retroactively to accidents occurring prior to the enactment of Fla. Stat. §768.0755 (2010) and what impact, if any, this statute would have on the plaintiffs' burden of proof. Until last month, no appellate court has discussed Fla. Stat. §768.0755 (2010). Finally, in Delgado v. Laundromax, Inc., the Third District Court of Appeals, without explanation, held that Fla. Stat. §768.0710 – and not Fla. Stat. §768.0755 (2010) – was the substantive law governing the Plaintiff's August 21, 2003 slip and fall accident. However, the Court held that while §768.0755 (2010) now defines how a breach of duty is proven by requiring actual or constructive notice, the Court (applying Fla. Stat. §768.0710) held that the Plaintiff was still nevertheless required to affirmatively present evidence that the Business Owner had actual and constructive notice of the dangerous substance, in this case – water, to survive summary judgment, which the Plaintiff failed to do.
Thus, based on the Third District Court's recent ruling, regardless of whether the slip and fall accident occurred prior to enactment the Fla. Stat. §768.0755 (2010), plaintiffs must still present evidence that the business owner had actual or constructive notice of the "dangerous condition" to survive summary judgment. This is a major victory for business owners since, similar to the Plaintiff in the Delgado case, many slip and fall plaintiffs are unable to present evident as to the amount of time a transitory object or substance has been on the floor or that fact that the condition occurred with such frequency that the owner should have known of its existence. As to the future of slip and fall plaintiffs' burden of proof against business owners, it will be interesting to see the effect, if any, that Fla. Stat. §768.0755 (2010) has on post 2010 slip and fall accidents.