People can be seriously injured in Florida slip and falls. In the last few years, these claims have become much more difficult for injury victims to receive compensation because the Florida legislature has made it much more difficult for injured people to receive compensation after one of these falls.
The most common scenario in a slip and fall claim is that the injured person slipped because of a foreign substance on the floor of a restaurant, supermarket or big box store. The problem with these substances is that they are easily cleaned up. A simple paper towel or mop, and the evidence is gone.
The Burden of Proof
In recent years Florida lawmakers have put the responsibility on the injured person to show that the business, restaurant, the owner of the property had notice that the substance was on the floor. Notice comes in two flavors: (1) Actual Notice; and (2) Constructive Notice.
Here is a typical scenario in an Actual Notice slip and fall claim. I’m sure you have been in Publix or Winn Dixie or WalMart or K-Mart and you hear an employee over the PA saying “clean up in aisle 1.” An employee goes and cleans up the spill, but doesn’t do a good job and leaves a residue on the floor. Another customer walks by a ½ hour later, and slips and falls where the area was supposedly cleaned up. In these types of cases, the Business, through its employee, had actual notice of the dangerous condition. Notice in this type of case can be shown by evidence that the area had been cleaned up a short time before the injury.
As opposed to actual notice, constructive notice requires circumstantial evidence. As a refresher, circumstantial evidence is indirect evidence. In these cases, the injured person would have to show the substance was on the floor for a long enough period of time that the store employees, if they were doing their job and looking around, would have discovered the problem.
In order to show circumstantially that the owner knew or should have known of the problem, it is important to document the accident scene. For instance, if there are track marks through the substance or if the substance is partially dried, arguably it was there for a longer period of time. If you are able to have the business preserve video surveillance, you may be able to track down when the substance fell on the floor. The problem is who thinks about all this stuff at the time of the fall? Most folks are embarrassed and try to jump up soon as possible. Others are injured and taken away by ambulance. The key to proving these types of cases is preserving evidence.
Preserving Evidence in a Florida Slip and Fall
The first thing you must do after a slip and fall is report the incident, and make sure the store employee(s) document what happened. I was recently involved in a claim, where the store had no documentation that the incident happened. This makes it much more difficult to prove your case. Another benefit of reporting the incident is that some stores have written protocols that they must follow after someone complains of a fall. These protocols can include: (1) capturing any video of the incident; (2) taking photographs of the accident area; and (3) identifying any witnesses.
Second, hopefully you can identify what caused you to fall and where the substance originated. See if you able to identify any odors, viscosity or texture of the substance. This information may help us identify the source of the substance at a later date.
Third, if you are able, you should document the scene. Take photos of the substance on the floor, photos of the store employee(s), and more importantly photos of substance on your clothes. I can’t tell you how many times I’ve heard a client say that their pants were soaked. If this was documented in a photo, we could certainly argue that the slip was large enough for someone at the business to readily identify. You see, it is much easier to identify a puddle versus a spill the size of a dime.
Fourth, if there were any witnesses to the fall, be sure to get their names and contact information. Independent witnesses will make it easier to prove your claim. These folks may have information about the substance that you just don’t have. For instance, they may have heard one employee say to another employee “this is the second time this week that someone fell here” or “I thought you cleaned up the spill”.
Common Defenses in Florida Slip and Fall Claims
Because the injured person has to prove that the business had notice of the substance, by far the most common defense is that the business didn’t have notice. In the past, the business would have the burden of showing that it didn’t have notice, nowadays, showing that the business had notice of the dangerous condition is an initial element of proof that the injured person must show.
The second most common defense, is that the substance on the floor was open and obvious. The gist of this defense is that the person who was injured should have realized there was a problem and acted on their own behalf. For instance, if you are walking down a block and you see a large pothole or someone is working on a roof of a building, you should either walk on the other side of the road or take a different path to avoid the danger.
Legally speaking, the open and obvious doctrine provides that a property owner is not responsible for injuries caused by a dangerous condition on the property when the danger is known or obvious to the injured person. This legal doctrine is based on the fact that all people should use ordinary care to protect themselves and that if the danger is clear that person should have avoided the dangerous condition. The courts are all over the place when it comes to the open and obvious doctrine. Some courts have said that the danger being open and obvious only discharges the property owner’s duty to warn the invitee of the danger. Other courts have said that the condition was SO open and obvious that it discharges the landowner’s duty to warn and to keep that area of the premises safe.
If the person injured in a Florida slip and fall understands the most common defenses, they will understand the information that is needed to overcome these defenses. Each one of these cases turn on the individual facts and circumstances of the case.
Common Injuries After a Florida Slip and Fall Claim
Some of the most common injuries in slip and fall claims are broken bones.
Compensation Available After a Florida Slip and Fall
If you are able to prove that the property owner was negligent and the negligence caused your injuries, you will be entitled to receive compensation for your injuries, which include:
- Past hospital and medical expenses;
- Future hospital and medical expenses;
- Lost wages;
- Decreased ability to earn money in the future;
- Pain and suffering.
Because of the nature of slip and fall claims, the injured person is usually determined to be somewhat at fault for the injury. This concept is called comparative fault or comparative negligence. Any compensation award will be decreased by the percentage of fault. For instance, if the claim is worth $100,000 and it is determined that the injured person is 10% at fault, $90,000 will be paid for the claim.
If you have any questions about a Florida slip and fall claim, call Guy S. DiMartino.