Well, the business-friendly legislature in Tallahassee has struck again. First, they imposed restrictions on Worker's Compensation claimants which basically drove claimants' attorneys out of business and now they have enacted legislation which makes slip and fall injury cases nearly impossible to prove – as if Publix and other merchants needed any more advantages in defending cases where their negligence has caused injury to their patrons !!
Currently, as a result of the 2001 Florida Supreme Court case Owens v. Publix Supermarkets, Inc., the burden is placed on the defendant store to establish that “reasonable care” was exercised in keeping the premises ( including floor surfaces) safe for customers. The Plaintiff is not required to prove that the store had actual or constructive knowledge of the dangerous condition that caused the fall. While this “shifting” of the burden was a change from previously existing law, it created a much more level playing field for Plaintiffs to prove damages and provided ample motivation for merchants to make sure they monitored the condition of their floors to avoid causing falls.
Well, not to be outdone by the Courts, the Legislature ( after much lobbying by business interests, no doubt), decided to roll back the clock and once again place the burden on the Plaintiff to prove that ” the business had actual or constructive knowledge of the transitory foreign substance” located on the floor which caused the injury to the Plaintiff.
Now how does the Plaintiff prove this ??? While many stores routinely have maintained “sweep logs” to document when floors were inspected in order to exercise “reasonable care” as required under the old law, I expect those records to be widely discontinued. And, from the Defendant's perspective, Why Not??
If someone falls in a store setting, they'll be no evidence of inspections, but also no potential evidence that there was too long a gap between inspections. Juries will just have to take the store manager's word that no foreign substance was seen on the floor prior to the fall. Good luck proving negligence now….in response, however, you'd better believe that a store's failure to document or discontinue the practice will prove to be persuasive fodder in arguing that the store was negligent. Since the new statute goes into effect on July 1, 2010, stay tuned as to the effects of the Legislature's latest attempt to impose indirect tort reform at the expense of the injured.