ShareThisNAPLES, Fla. - Ever since Florida's Supreme Court set a precedent in cases involving shoppers slipping on bananas, the state gained a reputation for easy slip-and-fall wins in court.
In December, South Florida inched up on the American Tort Reform Foundation's "Judicial Hellholes" list, moving to No. 1 as the easiest state to file slip-and-fall lawsuits. It had been No. 2.
"Florida is ... developing a reputation as the place to bring slip-and-fall lawsuits due to its lower burden of proof compared to other states, making the state ripe for fraudulent claims," the report said. "Supermarkets, corner stores and restaurants have no choice but to settle, regardless of whether they could have prevented accidents."
But that may end this summer.
In April, Gov. Charlie Crist signed House Bill 689, which requires that an injured person must prove a business, municipality or other defendant actually knew about a dangerous condition and should have done something to fix it -- or that the condition occurred often enough that the business should have expected it. These are legal standards known as actual notice, or constructive notice.
"This represents a significant shift and a major victory for business owners and their insurers in slip-and-fall cases," said Kirkland Miller, an Ave Maria School of Law professor who specializes in premises liability. "More importantly, it could mean a reduction in the number of slip-and-fall cases being filed in Florida ..."
Retailers and businesses, which pushed for change, say it will make legal battles more balanced.
"In Florida, all you had to prove was you slipped, you fell and you were injured," said Samantha Hunter Padgett, general counsel for the Florida Retail Association. "The burden was on the defendant to prove they had maintained the premises in a safe condition."
The law goes into effect July 1, replacing laws in place before Nov. 15, 2001. That's when the Florida Supreme Court, in cases known as Owens v. Publix and Soriano v. B&B Cash Grocery Stores, considered two customers and two brown bananas in a ruling that prompted the Florida legislature months later to change the law involving "transitory foreign substances" that cause slips and falls.
The state's highest court ruled the presence of a liquid or dangerous substance on a floor was sufficient to show a business didn't keep its premises in a safe condition for customers. As a result, an injured person only had to prove the substance existed, caused an unsafe condition and an injury.
The court said at the time that this would give businesses an incentive to maintain safe premises.
"This shift away from the artificial requirement that the injured person establish how long a transitory foreign substance was on the floor of the defendant's premises makes sense from a policy viewpoint because it will prevent premises owners or operators from benefitting from their absence of record-keeping and will increase the incentive for them to take protective measures to prevent foreseeable risks," the court ruled.
Retailers contended that decision made it difficult to fight lawsuits, causing Florida's litigation costs to far exceed those in other states that used the constructive-notice legal standard.
Before that ruling, it had been 30 years since Florida's Supreme Court had considered constructive notice -- that a defendant would have been aware of a condition by being reasonably attentive. That 1973 slip-and-fall case involved a wet collard green leaf -- "old, wilted and dirty looking."
Ever since that ruling, the Supreme Court noted, Florida's appeal courts had struggled to determine if sufficient evidence existed for a jury to decide constructive notice. Courts had looked at cases involving supermarkets, groceries, a bowling alley -- and every substance imaginable.
There was partially melted "lumpy" butter, "thawed, dirty, splattered ice cream," and a "very dirty," "trampled," "chewed up" unidentified substance with "skid marks and scuff marks" -- indicating it had sat there a while.
And for nearly a decade, Florida's defendants, mostly retailers, paid more to settle claims and higher insurance rates.
It was Rep. Gary Aubuchon, R-Cape Coral, who pushed the bill to change the law this year, telling lawmakers that retailers' slip-and-fall cases here cost double the national average, and Florida needed to mirror laws in 35 states.
"The cost of defending slip-and-fall lawsuits and claims is more than double in Florida compared with its costs in Southeastern states," Aubuchon said. "When costs are increasing due to the defense of frivolous slip-and-fall litigation, it takes revenue away from other sources. It hurt both job creation and business expansion in Florida."
Aubuchon considered the state's legal standard unfair.
"Clearly they can't be literally behind every shopping cart to make sure they don't drop anything," he said.
Florida trial lawyers made opposition to Aubuchon's measure one of their top two legislative concerns.
"The store is in a much better position to know how long the substance has been on the floor," said Paul D. Jess, general counsel for the trial lawyers' group, Florida Justice Association. "It's unreasonable to have them clean up every grape or banana lying on the floor within five minutes, but if it's been on the floor all day, that's negligence."
Jess doubted the new law would lead to dwindling claims, noting, "I think it will simply make it more difficult for an injured person to prove the problem was due to the fault of the store owner."
(Aisling Swift is a reporter for the Naples Daily News in Florida.)
