Florida Representative Dave Murzin (R) of Pensacola recently introduced House Bill 495 which would change how slip and fall cases are tried in Florida. The bill which could use some editing by a lawyer would repeal Florida Statute 768.0710 (Burden of proof in claims of negligence involving transitory foreign substances) and replace it with Florida Statute 768.0755.
So what’s the difference? The current standard calls for the owner of a “business premises” to provide reasonable care of the premises, including reasonable care to ensure it is free from those ghastly transitory foreign substances which could give rise to loss, injury or damage. The claimant must prove the defendant had ownership/control of the premises and their was negligence in the control, maintenance or operation of the premises. To this end, actual or constructive notice (i.e., “you knew or should have known it was there”) is not a “required element” but can be considered.
For what it is worth, the battle over the significance of actual or constructive notice has been won and lost more than once in the past decade. See Owens v. Publix.
Rep. Murzin proposes that the person who “slips and falls” on a substance at a “business establishment” (note that s. 768.0710 talks about “business premises”) must prove actual or constructive notice AND that the business “should have taken action to remedy it.” A claimant could prove constructive notice (should have known it was there) by proving the length of time the substance was there or that it was regularly present and therefore foreseeable.
Of note, if the Bill becomes law as is, it is unclear if it applies to someone who trips and falls, since it says slips and falls. Critics will likely claim that this shifts the burden to the plaintiff to (1) know or find out what the business owner did not know and (2) prove what they fell on and how long it was there which, if they had known those two pieces of information at the time, there would not be an injury.
We’ll see. We note that Rep. Murzin also introduced a pro-nursing home, anti-long term care litigation bill as well: HB 493. We will watch both…
Special thanks to MillerLaw on Twitter for the interesting catch.