Grocery Stores Avoid Liability for Slip and Fall Accidents

 In Personal Injury

wet floorMost slip and falls at businesses involve what is known as a transitory foreign substance. A transitory foreign substance is something or some condition that was there only for a short period of time before the fall occurred. The Florida legislature has been very responsive to lobbying efforts of business owners seeking to make it harder for innocent victims to recoup their damages when a business owner fails to clean up or correct the condition that caused the fall. Florida statute 768.0755 imposes a burden on the injured person to provide proof of actual or constructive knowledge of the transitory foreign substance. This burden can be proven by showing that the dangerous condition existed for a length of time that in the exercise of ordinary care, the business establishment could have known of the condition.  

Since the legislature made it more difficult for injured persons to recoup their damages, most businesses have created inspection protocols that require staff or management to walk the property or aisles on a routine basis to make sure that nothing dangerous has been left behind by another customer. When a person is caused to fall by this condition, the store owner and/or insurance company almost always wants to know how long this dangerous condition existed. Unfortunately, as a result of Florida statute 768.0755, many legitimate claims are rejected because the injured party cannot establish how long the condition existed. For that reason, experienced lawyers try to get around the statute by establishing negligent inspection protocols, especially when the business should be on notice that the dangerous condition occurs frequently. For example, think of rain slick entrances or the area around soda fountains that frequently has dropped ice or other substances that make the walkway surface slippery.

Negligent Inspection Protocols

A recent case out of the Florida 1st District Court of Appeal in Jacksonville, Fla. illustrates this problem. Teresa Walker was a customer of Winn-Dixie and fell at the store entrance shortly after it started raining. Winn-Dixie has protocols in place that require mats, warning cones/signs and a wet umbrella bag rack to be put into place any time it is raining or expected to rain within the next 30 minutes or so. Most of these were in place at the time Walker fell on wet tile. Shortly after realizing Walker had fallen, the store manager reviewed the store surveillance video showing the fall. It demonstrated that two assistants had been inspecting the area where she fell two or three minutes before the fall. It also demonstrated that the mats had not yet been put into place. This led the store manager to speculate that it might have just started raining.

Winn-Dixie moved for summary judgment claiming the plaintiff, Walker, could not prove her case sufficiently such that it was responsible for her fall. Her lawyers conceded that she was proceeding under a constructive knowledge and not actual knowledge theory of negligence and tried to keep her case alive based on the manager’s testimony that Winn-Dixie had initiated but not finished its “rainy day procedure.” In essence, the lawyer tried arguing that the rainy day procedure should have been in place sooner so that everything was in place at the time that the plaintiff fell. However, based upon the testimony of the plaintiff and store manager, the condition that she fell on only existed between one and four minutes.

Unfortunately, the plaintiff’s legal team’s strategy did not work. The brief period of time between the rain starting and the time the plaintiff fell was insufficient to hold Winn-Dixie responsible. Even though there’s no doubt that it rains a lot in Jacksonville, this short amount of time was insufficient to establish liability on the part of Winn-Dixie.

Active Negligence by Employees

This decision distinguishes the facts in this case with those of the recent Feris v. Country Club of Fort Walton Beach opinion in which circumstantial evidence of “active” negligence by employees of the country club in not enforcing a club rule against drinks on a dance floor was used to defeat summary judgment. Because there was no evidence of recurring water in the area in question or of prior incidences in the entrance, Winn-Dixie was able to successfully defeat the claims of an injured person.

How could that be you ask? Apparently the lawyer didn’t dig deep enough or didn’t establish sufficient facts in depositions to be able to illustrate what we all know is true, it rains a lot in Florida. The Walker opinion illustrates the importance of having experienced and competent attorneys when dealing with slip and falls. The Florida legislature has made these types of cases very difficult to prevail on. Having savvy lawyers who can develop alternative theories of liability is very important when dealing with these types of cases. Otherwise, clients will be faced with similar results when they pursue their claims.

LaBovick Law Group’s Experience with Slip and Fall Cases and other Personal Injury Cases

LaBovick Law Group has been representing the injured for more 20 years. Our staff of experienced litigators has more than 100 years of collective experience fighting for the injured and getting them justice. You will never be a number at our firm, and we have state-of-the-art technology to help win your case! 

Images courtesy of by Stuart Miles

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