* The current law, F.S. 768.0710, sets out the “reasonable care” standard and the claimant has the burden to show a duty and breach thereof.  Proof of actual or constructive notice of a transitory object is not required.

* The new law, effective July 1, 2010, repeals section 768.0710 and creates a brand new Florida Statute 768.0755, which includes a pro-business addition to the statute requiring a plaintiff to prove actual or constructive notice of a transitory substance which would then establish a breach of duty.

* My read, and I stand to be corrected, is that the new law applies only to actions which accrue (occur) on or after July 1.

* For those interested in the history of the bill and its twin, CS / SB 1224, see here.

* The twists and turns of the slip-and-fall battle date back to the 2001 Florida Supreme Court case of Owens v. Publix, which lead to the Legislature turnaround in 2002.  A solid recount of the flip-flopping is here.

I recall that there are alternate tort claims for slip and falls relating to warning and maintaining — any guesses as to whether this will apply to both methods of suing for a slip and fall?

We’re open for comments below.

In Karen, Roger and Nicolas Fina and Nationwide Insurance Co. v. Est. of Sara Rose Hennarichs (Gerber, Damoorgian and Levine), Mr. and Mrs. Fina allowed their teenage son to ride an ATV despite the warnings on the machine and manual which said that minors under 16 should “NEVER” drive the ATV.  The son allowed a 13-year old friend to drive the ATV (contrary to parental instructions) and the friend had an accident and died.

The parents/owners were sued for negligently entrusting the ATV to their minor child as well as negligently training/supervising him.  A jury found the parents 70% liable, the son 10%, the friend/driver 5% and another parent 15% responsible.

A 1955 case holds that  a parent may incur liability where the parent entrusts the child with an instrumentality which, because of the lack of age, judgment or experience of the child, may become a source of danger to others.

The parents tried to claim that the “lack of age” did not apply because it was not unlawful for a minor under 16 years to drive an ATV.  The court disagreed, holding that it need not be illegal to be an act creating civil liability.

The parents likewise argued that they had no reason to believe their son would violate the family rule that no other children could ride the ATV.  The court denounced that claim, finding that the parents had “set an example of disregard” when they ignored or overlooked the manufacturer’s warnings and “it should have come to no surprise that [the son] would have disregarded their rules too.”  Indeed, the court even held the jury might rely on common sense to find the parents liable.

Note: this case does not appear to be limited to ATVs.  Heavy tools, BB guns, knives, and other equipment or toys could easily fall into this category.

It appears not, according to T & S Enterprises Handicap Accessibility, Inc. v. Wink Industrial Maintenance & Repair Inc. et al.

In this case, an employee of Wink was injured when he was working for Wink at T & S’ property.  The employee sued T & S, which promptly third party’ed in Wink claiming contribution.

Since 2006, however, Florida Statute 768.81 abolished joint and several liability.  Under the current law, the trial court can only enter judgment on the basis of a party’s percentage of fault.  Contribution can only be claimed by a party who has been made to pay more than its fair share.  So what happens with a contribution claim post-2006?

According to the Second DCA (Dakan, Altenbernd, and Fulmer), contribution claims were only allowed before because Rule 1.180 allowed third party actions against anyone who “is or may be liable.”  Courts were allowing contribution to be plead in the “main” tort case under this concept.

Not so now.  ”It is unlikely that T & S will be required to pay more than its pro  rata share” since F.S. 768.81(3) limits the trial court to judgment based upon a party’s fair share.  Thus, there’s no contribution claim — all pre-2006 cases are “not… overruled” but “they appear to have been rendered obsolete.”

The Orlando Sentinel broke the story of Sanjay and Marisela Prakash, the parents of a 4-year old who was injured when his Croc shoe was caught in the Miami International Airport escalator.  Hello… Miami Herald? That probably should have been YOUR scoop. A Colorado website indicates the suit alleges punitive damages and seeks $3-6 million dollars.

Apparently the soft shoe can get smooshed into the sides of the escalator and, because Crocs are so soft, the whole shoe can get tugged into the mechanism.  Our friends at The Consumerist pulled out a nice illustration of the type damage for us here.

A quick Google search suggests Croc-sportin’-children have been besieged in airports from Denver to New York to Miami.  According to this CBS report, the Croc company had sent a 16-page report to the U.S. Consumer Product Safety Commission (CPSC) .  The Commission had already known of 77 Croc incidents — to everyone’s surprise, the company admitted to another 109 more incidents.

Meanwhile, the CPSC estimated that there were 90 billion escalator riders in 2007, resulting in 11,000 injuries.  Most of those injuries are falls while 10% involve SOMETHING getting stuck in the machine.  See May 18, 2008 press release, Know the Steps to Safety When Using Escalators, Some shoes more likely than others to pose risk.

The Orlando Sentinel article mentioned that Crocs had issued a news release that it would put warnings on the shoes as of Spring 2009; our informal peek at Crocs.com didn’t reveal that announcement.  Hmm.

Step lightly.

Disney and Universal could not have paid for better advertising: the article threatens that theme park suits are lengthy (“rarely back down”) and give the example of one losing plaintiff who ended up owing fees to Disney totaling over $125,000.

Check out Trips, Slips Dominate Theme Park Lawsuits.

Ironically, we just covered an opposite story where a Disney visitor claimed that the rides helped her medical condition, here.

Quick hits:

1.  477 personal injury lawsuits filed against the parks since 2004;

2.  101 of the 477 involved claims of ride injuries;

3. Not a single ride-injury case has gone to trial;

4. 23 of the 101 cases are still pending;

5.  Theme parks are exempt from state inspections/reporting required for carnivals;

6.  9 of the 101 ride-injury cases were reported to the state;

7.  24 of the 101 ride-injury cases involve claims that the attractions were inherently dangerous (i.e., not that there was a failure or negligence).

The Complaint alleges that the Plaintiff had been a WDW annual passholder for nearly four years with routine access to a special unload access area (for quick re-entry) until she was barred in late 2008. 

The Osceola clerk of the court website indicates the Mouse has yet to file an Answer.  But that’s never quite the news buzz like filing a lawsuit…

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.