Legally, a duty is a legal relationship arising from a standard of care, the violation of which subjects the actor to liability. In the case of a store or business establishment, the standard of care in Florida is to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee. This duty includes: (1) to warn of non-obvious, dangerous conditions known to the owner; (2) to use ordinary care in active operations on the property; and (3) a duty to make reasonable inspections to discover dangerous conditions and, thereafter, make them safe. Florida also places an even bigger hurdle when it comes to proving a premises owner breached their duty. F.S. 768.0755 (the slip and fall statute) states that the business owner must also have actual or constructive knowledge of a dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven circumstantially by showing: (1) 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 (2) the condition occurred with regularity and was therefore foreseeable.
Under Florida law, a premises owner has a non-delegable duty to maintain it’s premises in a reasonably safe condition for its invitees. See Goldin v. Lipkind, 49 So.2d 539 (Fla. 1950); Garcia v. State Department of National Resources, 707 So.2d 1158 (Fla. 3d DCA 1998); Armiger v. Associated Outdoor Clubs Inc., 48 So.3d 864 (Fla. 2d DCA 2010). Additionally, this non-delegable duty exists even if the defective condition may have been caused by a third-party. Acosta v. City of Hialeah, 780 So.2d 300 (Fla. 3d DCA 2001). A non-delegable duty is one that may be delegated to an independent contractor by a principal (such as an owner hiring a cleaning service), who retains primary (as opposed to vicarious) responsibility if the duty is not properly performed.
This comes into play in slip and/or trip and fall cases in the verdict forms at the end of trials. In Florida, when a defendant is derivatively liable for the actions of a third-party (such as a cleaning service), that defendant cannot escape liability by placing that third-party on the verdict form in order to reduce their liability. See Continental Florida Materials v. Kusherman, 91 So.3d 159 (Fla. 4th DCA 2012); Suarez v. Gonzalez, 820 So.2d 342 (Fla. 4th DCA 2002); Nash v. Wells Fargo Guard Services, Inc., 678 So.2d 1262 (Fla. 1996). However, the defendant is still able to place the plaintiff themselves on the verdict form in Florida. This is due to what is called comparative fault. This legal principal reduces a plaintiff’s recovery proportionately to the plaintiff’s degree of fault in causing the damage, rather than barring recovery completely. For example, a plaintiff is found to be 25% at fault while the defendant is found to be 75% at fault. If the verdict is for $100,000, then the plaintiff would receive $75,000.
A typical slip and/or trip and fall lawsuit happens like this: Plaintiff is in a store shopping for something. While walking by a freezer, the plaintiff falls on a clear liquid that they did not see because they were looking at the shelves. The fall causes the plaintiff to experience severe back pain and they go to the emergency room. After treating medically for a couple of months and not seeing any relief, the plaintiff is recommended for surgery. The plaintiff either has the surgery or does not.
In the meantime, the plaintiff has filed a lawsuit against the defendant store owner for negligently maintaining their store. The store owners’ insurance company denies that their insured did anything wrong and that both (1) the plaintiff should have seen the liquid on the floor and (2) the company they hire to maintain the freezer did something wrong. After months of taking depositions of store employees and watching store surveillance video, the plaintiff’s attorney discovers that the store employees knew that this freezer leaked quite often and consistently. The plaintiff’s attorney also finds out that the place where the leak occurred was not inspected for a couple of hours before the fall. Even after all this proof that the store negligently maintained its premises, the store’s insurance carrier still denies any responsibility for the injuries the plaintiff sustained. Plaintiff notices the case for trial.
At trial, the plaintiff’s attorney shows (1) the liquid on the floor was a known and foreseeable hazard to the store; (2) the store did not properly maintain a known danger; and (3) the plaintiff’s damages are attributable to this incident. When the defendant store tries its case in chief, they try to blame the plaintiff for not looking where they were going and tries to blame the freezer maintenance company for not fixing the freezer. They also say that all the plaintiff’s injuries were pre-existing in nature and that they would have needed surgery anyways. The case is now in the hands of 6 jurors to decide.
Slip and/or trip and fall cases are notoriously hard cases to try in Florida. Not only does the plaintiff have to get over the slip and fall statute and prove that the defendant knew or should have known about the transitory substance, but they must also overcome the juror presumption of comparative negligence in all of these types of cases. And that’s not all. The plaintiff still has to prove that the incident caused the injuries they claim to have received from the fall.
The LaBovick Law Group has a passionate team of attorneys well versed in slip and/or trip and fall cases. If you have been injured due to the negligence of another, call today for a free consultation.
