Picture this: you are a small business owner. You take pride in maintaining a clean and professional workplace that is inviting to those in your community. One day, an employee places a classic yellow wet floor sign down and begins mopping up the tile floor near the sign. A few minutes later, a patron falls in the same area your employee was cleaning moments ago. Unfortunately, your small business is on the receiving end of a lawsuit alleging your business failed to maintain your premises in a reasonably safe condition or, in the alternative, your business had a duty to warn of a dangerous condition. Now what?
Well, lucky for you, in 2010, the Florida Legislature enacted Florida Statute §768.0755, which spells out what a Plaintiff has to prove in a slip and fall case involving a foreign transitory substance.
Specifically, §768.0755 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 actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. 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; 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.
Fla. Stat. § 768.0755
After the enactment of §768.0755, a slip-and-fall plaintiff should no longer be able to meet his or her burden of proof by evidence of negligent maintenance, lack of warning, or through some claim of negligent operation. See Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 424 (Fla. 4th DCA 2014), reh’g denied (Apr. 11, 2014); see also, Jose Duran, Appellant, v. Crab Shack Acquisition, FL, LLC, d/b/a Joe’s Crab Shack, Appellee., No. 5D2022-2823, 2024 WL 1812534, at *1 (Fla. 5th DCA Apr. 25, 2024). However, in practice, that is often what we are still dealing with more than 15 years after the passage of this statute.
What does this statute really mean? First, let’s start with what a “foreign transitory substance” is. A foreign transitory substance refers to a substance, object, or item that is out of place and not meant to be where it is found. Some examples of a foreign transitory substance are a puddle of water, oil, clothing, produce, or any number of liquids or objects inadvertently left on a floor.
So, how is Florida Statute §768.0755 applied to cases involving a foreign transitory object? Step one is to establish that the defendant is the property owner or in lawful possession of the property. The first of §768.0755 states that the injured person must prove that the business establishment had actual or constructive knowledge and should have taken action to remedy it. Unfortunately, even from this outset, what constitutes a ‘business establishment’ still produces disputes in litigation. Florida courts have established that a party is a “business establishment” if the party has “actual possession or control of the premises rather than ownership.” Martin v. City of Tampa, 351 So. 3d 75, 78 (Fla. 2d DCA 2022); see also, e.g., Trainor v. PNC Bank, National Association, 211 So.3d 366 (2017); Thompson v. Gallo, 680 So. 2d 441, 443 (Fla. 1st DCA 1996); Regency Lake Apartments Assocs., Ltd. v. French, 590 So. 2d 970, 974 (Fla. 1st DCA 1991); City of Pensacola v. Stamm, 448 So. 2d 39, 42 (Fla. 1st DCA 1984); Arias v. State Farm Fire & Cas. Co., 426 So. 2d 1136, 1138 (Fla. 1st DCA 1983). However, applying the statute outside of those confines becomes more difficult, such as to address the standard of care applied where the defendant may be an independent contractor performing temporary work at a property.
Step two is to determine if the business establishment has (1) actual or (2) constructive knowledge of the dangerous condition. Actual knowledge is the actual knowledge of the fact in question, meaning that the condition was specifically known to the business or one of its employees before the incident occurred. See Regions Bank v. Deluca, 97 So. 3d 879, 884 (Fla. 2d DCA 2012); Sackheim v. Marine Bank & Tr. Co., 341 So. 2d 247, 248 (Fla. 2d DCA 1976); First Fed. Sav. & Loan Ass’n of Miami v. Fisher, 60 So. 2d 496, 499 (Fla. 1952). This often arises where an employee is present when the condition is created, actually creates the condition, or was told about it before the incident occurred. Even with actual knowledge of a condition, the business may still have defenses depending on the facts.
According to the slip and fall statutes, constructive knowledge can be proven if:
(a) If 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.
Courts have said there are different individual facts to consider when determining if a dangerous condition existed for a sufficient length of time that the business establishment should have known about it. For example in De Los Angeles v. Winn-Dixie Stores, Inc., 326 So. 3d 811, 812 (Fla. 3d DCA 2021) the court found that plaintiff’s testimony that the detergent she slipped on was “clear,” “slippery,” “light blue,” and “not dirty,” and that there were no footprints but that it had been present for three to five minutes was not enough to create an issue of knowledge. In Publix Super Markets, Inc. v. Heiser, 156 So. 2d 540, 542 (Fla. 2d DCA 1963), that court found that 90 seconds was not long enough for an owner to learn of a dangerous condition. Lastly, in Walker v. Winn-Dixie Stores, Inc., 160 So. 3d 909, 913 (Fla. 1st DCA 2014), the court found in favor of a defendant where a fall occurred on a wet condition and the last inspection was no more than four minutes before the patron’s fall. Clearly, Florida courts consider how long a substance was on a floor in addition to other facts to determine if the dangerous condition existed long enough that the business should have known about it.
Step three is to determine if the business establishment had sufficient time to remedy the dangerous condition. This is a part of the statute often overlooked. However, as clearly expressed by the Legislature, the plaintiff must provide knowledge that the business establishment “should have taken action to remedy it.” This factor is tied to whether the business had actual or constructive knowledge, and for how long. Florida Courts have interpreted this clause to require a “reasonableness standard” to determine whether the dangerous condition existed long enough to be discovered and remedied in the exercise of reasonable care. See Publix Super Markets, Inc. v. Safonte, 388 So.3d 32 (2024). Historically, Florida courts have addressed this issue in a number of ways, and while the analysis is fact-dependent, business establishments may have viable liability defenses where the evidence demonstrates that the condition came into existence only moments or minutes before the fall occurred. While this body of law was not expressly addressed by the statute’s expressed language, it has become one of the issues still litigated in slip and fall cases.
So you have performed the analysis of Florida Statute § 768.0755, but how does this affect your issue with the wet floor sign? Well, § 768.0755(2) says “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.” Fla. Stat. § 768.0755. This language alone has caused more confusion and litigation than any other portion of the statute, often times adversely affecting the defense of these claims still. Florida courts have conclusively established that when an owner/occupant of premises has actual or constructive knowledge of a dangerous condition of the premises, they are liable for injuries to an invitee if the owner or occupant fails to give timely notice and warning of the danger to an invitee who does not know of the danger. Hamilton v. Armstrong Cork Co., 371 F.2d 139 (5th Cir. 1967); Worth v. Eugene Gentile Builders, 697 So. 2d 945 (Fla. 4th DCA 1997); Washington Ave. Food Center, Inc. v. Modlin, 205 So. 2d 295 (Fla. 1967); Mai Kai, Inc. v. Colucci, 205 So. 2d 291 (Fla. 1967). Florida courts have also said that a property owner or occupant will not be subject to premises liability where it gives an adequate warning Mozee v. Champion Intern. Corp., 554 So. 2d 596 (Fla. 1st DCA 1989); Crawford v. Miller, 542 So. 2d 1050 (Fla. 3d DCA 1989). Unfortunately, neither the slip and fall statute nor the subsequent case law that has arisen since has clearly created protections from claims where a wet flood sign was indisputably placed, contrary to the widely accepted beliefs of our clients. Bottom line, placement of a wet floor sign alone does not provide a dispositive defense to this type of claim. It might even be said that the existence of a wet floor sign helps establish the business’s prior knowledge of a condition, which can itself be problematic.
It is important to know all of the factors involved in a slip and fall case when you or your business is involved in one. Taylor Day has a team of experienced and well-trained attorneys who can assist you in navigating the web of statutes and case law.