Who has to prove knowledge of the slip & fall incident?
I frequently receive inquiries from potential clients and referring attorneys concerning slip and fall accidents. Many of the potential clients (and a surprisingly large number of the referring attorneys), have a misunderstanding concerning the difficulty for a Plaintiff to prevail in a slip and fall case as a result to the change in the premises liability statute in 2010.
As a result, I created this brief cheat sheet including (1) what constitutes a slip and fall accident; (2) who now has to prove knowledge of the dangerous condition (which caused the slip and fall accident); and (3) how an experienced personal injury attorney can prove knowledge on behalf of the Plaintiff in slip and fall accident.
What constitutes a slip and fall accident?
A slip and fall accident is the generic term constituting any fall (including slip, trip, fall-down, or misstep) that occurs on someone else’s premise or business.
A common example of a slip and fall is when someone slips on water or an unknown substance at a business such as Publix, steps into a hole in a parking lot such as Home Depot, or trips due to a change in surface elevation such as a nail protruding out of ground at an office building.
Common injuries occurring from slip and falls include a torn knee, broken ankle and/or a broken wrist, hand, and finger(s).
Old burden on slip and fall accidents (pre 2010)
The burden was on the owner of the premise.
The unsafe condition (i.e. puddle of water) itself created the presumption that the business establishment did not maintain the premise in a reasonably safe condition.
Moreover, the actual or constructive notice of the object or substance (i.e. puddle of water) was not a required element of proof to this claim.
New burden on slip and fall accidents (present)
The burden is now on the victim who slipped and fell.
Relevant statute: Florida Statute 768.0755
(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.
How an experienced personal injury attorney can prove knowledge on behalf of the Plaintiff in slip and fall accident
It is unlikely for a business owner to admit that they had actual knowledge of a dangerous condition and/or should have taken action to remedy the dangerous condition. Stated another way, in all likelihood the business owner will deny knowledge of the existence of a dangerous condition and shift the blame onto the victim. This is not a death knell for a victim seeking compensation, however.
The law allows a Plaintiff to prove that the business or property owner had knowledge of the dangerous condition constructively by circumstantial evidence.
Circumstantial evidence includes: (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 (i.e. a hole in their parking lot that fills up with water in the rain each Summer thus camouflaging its depth); or (2) The condition occurred with regularity and was therefore foreseeable (i.e. numerous individuals have complained that a stairwell was improperly lit making the last step difficult to see at night).
If the business owner could (or should) have taken steps to remedy a foreseeable dangerous condition, the Plaintiff could still prevail and collect damages.
In addition, an experienced personal injury lawyer will be aware of common defenses to a claim based on a slip and fall such as: (1) the victim was careless or negligent in failing to observe the alleged dangerous condition; (2) the dangerous condition was open and obvious; and/or (3) the victim’s actions make him/her comparatively negligent (denying or reducing any compensation), and advise the victim accordingly.
As a result of the new law, it is important to retain an experienced personal injury attorney intimately familiar with slip and fall cases to prove you case through circumstantial evidence if direct evidence is unavailable. As always, do not speak with the business owner’s insurance company before speaking to experienced accident and injury attorney.