2010 Florida Legistative Updates
Heather L. Komarnisky, Esquire, Ocala office

The Florida Legislature passed the following bills in the 2010 session that are of particular importance to the insurance industry:

This bill creates Florida Statute 768.0755, Premises Liability for Transitory Foreign Substances in a Business Establishment, effective July 1, 2010, which provides as follows: (1) If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.
 
Constructive knowledge may be proven by circumstantial evidence showing that: (a) 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 (b) The condition occurred with regularity and was therefore foreseeable. (2) This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.  
  
Section 2 of this Statute repeals F.S. 768.0710 (2002), the former statute addressing the burden of proof in claims of negligence involving transitory foreign objects or substances against persons in possession or control of business premises.  The important difference between F.S. 768.0710 and 768.0755 is that the claimant alleging injury must now prove that the business had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.  F.S. 768.0710 specifically provided that the claimant did not have to prove actual or constructive notice of the dangerous condition.  F.S. 768.0755 now makes actual or constructive notice an element of proof. 

In enacting F.S. 768.0710 (2002), the legislature relied upon a Florida Supreme Court decision from the previous year. In 2001, the Florida Supreme Court issued an opinion deciding the cases of Owens v. Publix Supermarkets, Inc. and Soriano v. B&B Cash Grocery Stores, Inc., 802 So. 2d 315 (Fla. 2001). In Owens, a Publix employee was shopping after work when she slipped and fell on a discolored piece of banana. At trial, Publix moved for a directed verdict on liability, arguing that the plaintiff failed to present evidence that Publix had actual or constructive knowledge that the banana was on the floor. The trial court granted Publix’s motion. Owens appealed and the 5th DCA ultimately affirmed the trial court’s directed verdict. The court concluded that because there was more than one theory of how the banana could have gotten on the floor, it was the plaintiff’s duty to prove that the aging of the banana occurred on the floor, in order to give rise to an inference that the banana had been there a sufficient time to provide Publix with constructive knowledge. 

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