Slipping and Tripping Liability

It seems like the older we get the harder it is to simply walk. Our feet do not move as high or as fast as they used to. Bodies are more brittle. The result can be serious injury when someone trips, slips or falls. So, who is liable?

Florida courts used to require a business owner have actual or constructive knowledge that something slippery was on a floor causing a slip and fall. In 2001, the Florida Supreme Court changed the rule by deciding a case. The court explained that when someone slips on a “transitory foreign substance” that should not be on the floor, it would be presumed the company owner knew about it and therefore had liability. The business owner would have to disprove that presumption.

That did not make the business community happy so it lobbied. The legislature adopted laws more protective of businesses.

Section 768.0755, Florida Statutes, is the latest statute on this issue. Instead of presuming a business knows about a dangerous substance on a floor, a plaintiff must now prove the business had actual or constructive knowledge of the dangerous condition and should have taken action to correct it. The statute says constructive knowledge can be proven by circumstantial evidence that the dangerous condition existed along with that the business should have known of it or that the dangerous condition occurred regularly and was therefore foreseeable. 

How does the statute work in the real world? Actual knowledge by the business is usually easy to prove. Many times, the slippery stuff is on the floor because of action by an employee. The more difficult cases require proof of constructive knowledge. Constructive knowledge means the substance was on the floor long enough that the business knew or should have known of it or occurred so frequently that the owner was on notice.

Grocery stores provide many cases proving constructive knowledge. The clearest is numerous shopping cart tracks through a spilled liquid. Courts have used other factors to determine if the substance has been on a floor long enough to charge the business entity with knowledge. For a water leak, amount of water may be considered. For a banana, how much oxidation would be a factor.

A court will consider evidence of frequency and extent for recurring slippery conditions. In one case, the court found that the business owner knew of the dangerous condition because water always puddled in a certain area when it rained. In another, the court decided that proof of puddling outside a bingo hall did not equate to constructive knowledge that there would be water on the interior floor.

The nature of a business can also affect constructive knowledge. A grocery store operator should be aware that there are numerous opportunities for slippery substances to wind up on its floor. Grocery operators must take steps to minimize accidental spills or to quickly find and remove them. Other businesses may not be charged with the same degree of vigilance.

Tripping presents similar issues but does not have a statute. There are interesting fact situations that set some trip cases apart from a slip and fall.

Parking lot cases are a good example. People trip in parking lots. There are potholes and people step in them. Courts most often rule that a pothole is a naturally occurring condition, open and obvious and does not create liability for the property or business owner. But not all pothole cases are losers for the plaintiff. The facts of each case are reviewed to determine if the pothole creates an unreasonable risk. Factors to be considered by the court can include light and surface conditions that might disguise the hole.

People step in holes, trip over speed bumps and trip on car stops. In most of those cases, the court finds that the property or business owner is not liable because the danger is open and obvious. But, in one case where rebar extended, the court asked for more evidence to determine if the plaintiff should have seen the rebar. In another case, the court required evidence of whether dark and rainy conditions and bad lighting concealed a car stop.

If the court agrees the business or property owner has created an unreasonable risk for slip, trip and fall, the plaintiff is not automatically handed a big victory. The court also will listen to arguments about comparative negligence. The court must determine what percentage of injury was caused by the negligence of each party. The business or property owner will argue that the injured person should have seen the dangerous condition and avoided it. That gets rid of a lot of liability in cases where someone trips over a speed bump or car stop. In slippery floor cases, it can also be a factor if the plaintiff should have paid closer attention to where the plaintiff was walking.

There is not an absolute rule for liability in these cases and the argument about responsibility and negligence often continues on appeal. The bottom line is merely because someone falls down in a business does not equate to success in court.