Florida Court Rules Slip and Fall Statute Cannot be Applied Retroactively
Since 2002, Florida has had a slip and fall statute dealing with foreign transitory substances. Over time, the interpretation of this statute was not to the business community’s liking. In 2010, the Florida legislature, in response to heavy lobbying from business owners, significantly revised the slip and fall statute to make it much more difficult for injured persons to successfully sue them when they fall as a result of a foreign transitory substance. What is a foreign transitory substance? A foreign transitory substance is anything that can be easily cleaned up off the floor. Some common examples include drippings from packages, banana peels, melting ice, dripping cups and detergent leakage from a bottle.
Ever since the 2010 revision was enacted, defense attorneys have been trying to get it applied to current or pending claims. Surprisingly, judges have found it hard to figure out whether the statute applies to cases/claims pending as of the effective date of this statute or is it to be applied prospectively. Until recently, the Florida 3rd District Court of Appeal was the only Florida appellate court to have addressed the issue, and they held that the statute applied retroactively. The Kenz v. Miami-Dade County opinion was released in 2013 and was subsequently used by every defense attorney in town to argue the retroactive application of this statute. However, this opinion completely ignores the constitutional arguments against ex post facto laws and how a law passed today can affect the rights of a person that existed yesterday. Eventually someone was going to straighten out this problem. That eventuality is now.
The Florida 4th District Court of Appeal has recently ruled contrary to Kenz and has indicated that this statute is to be applied prospectively only. The appellate court decision of Pembroke Lakes Mall LTD v. McGruder is now the effective law of at least the 4th District Court of Appeal jurisdiction. Conflict with the Kenz opinion has been certified. Only time will tell if the Florida Supreme Court accepts conflict certification and resolves the law on this topic. My bet is Pembroke Lakes Mall will become the law of the state in due course.