The Florida Bar

Florida Bar News

Senate takes up slip-and-fall cases

Regular News

Senate takes up slip-and-fall cases

Saying a recent Supreme Court decision shifted too much of the burden of proof to defendants in “slip-and-fall” cases, a Senate committee has approved a bill setting a new standard.

The Banking and Insurance Committee approved SB 2256 March 12 by a 12-0 vote, after hearing it was supported by most business lobbies and the Academy of Florida Trial Lawyers.

Sen. Ginny Brown-Waite, R-Brooksville, sponsor of the bill, said it was intended to change the burden of proof in premises liability cases set by a Supreme Court majority in Owens v. Publix Supermarkets, Inc., 802 So. 2d 315 (Fla. 2001).

Before Owens, the plaintiff had the burden of showing that the defendant either knew a hazard existed or should have known that it existed, Brown-Waite said, while the decision required the defendant to show reasonable care was exercised to prevent dangerous conditions.

The minority in the 4-3 decision criticized it as going too far, including saying it “rewrote the law in slip-and-fall,” Brown-Waite said. “It’s the prerogative of this legislature to examine court decisions and make changes.”

“What the Owens case did was virtually shift all of the elements on burden of proof over to the defendant,” said Bill Hurley, representing the Florida Retail Federation. “All the plaintiff has to show is duty [to provide a safe premises] and injury.

“What we have done with the compromise is shifted the burden back to the plaintiff,” he added, noting the plaintiff, however, can show a negligent mode of operation by a preponderance of the evidence.

Paul Jess, of the academy, said while his organization preferred the standards set out in the Owens decision, “We do not object to the bill in its present form.”

Mike Huey, representing the Petroleum Marketers and Convenience Store Association, opposed the bill, saying it didn’t go far enough in protecting business owners.

“The old duty was the premises owner had to exercise reasonable care in maintaining the premises in a safe condition,” he said. “The new duty will be that the business premises owner owes a duty of reasonable care. . . including reasonable efforts to keep the premises free of transitory foreign objects or substances that might foreseeably give rise to injuries, loss or damage. What is a transitory foreign object? There is no such thing as a transitory foreign object that might not give rise to injury, loss, or damage.”

But Brown-Waite called the bill fair.

“The business community considers it a win, and the trial lawyers consider it less of a loss than the original bill,” she said.

The Senate bill has been sent to its calendar for floor action while an identical House measure, HB 1545, is already pending action before the full House.

News in Photos

Columns

Balancing on the Breath

Columns | Sep 20, 2021

The Mindful Lawyer

Mindfulness | Aug 23, 2021

The Mindful Lawyer: Resistance is Fertile

Mindfulness | Jul 21, 2021

How to deal with third-party lienholders in property damage cases

Columns | Jul 15, 2021