In Kenz v. Miami-Dade County and Unicco Service Co., 2013 (Fla. 3d DCA April 24, 2013), Florida’s Third DCA ruled that § 768.0755, Fla. Stat. (2010) must be applied retroactively to incidents that occurred before the statute became effective. The statute requires plaintiffs in slip-and-fall claims to prove that a business establishment had actual or constructive knowledge of a transitory substance and should have taken action to remedy it. In reaching its decision, the Third DCA held that the statute was not a substantive change in the law that can apply only to incidents that occur after the statute became effective. Rather, the change was determined to be procedural in nature and, thus, it must be applied retroactively.
Kenz v. Miami-Dade County and Unicco Service Co.
Kenz arose from a slip-and-fall incident on May 13, 2008. Kenz argued that the standard of proof required in the lawsuit was established by § 768.0170, Fla. Stat. (2002). After Kenz filed suit, but before trial commenced, § 768.0755, Fla. Stat. (2010) took effect and superseded § 768.0710. The new statute created a higher standard for plaintiffs by requiring that they prove a business establishment had actual or constructive knowledge of a transitory substance and should have taken action to remedy it. The Third DCA affirmed the trial court’s summary judgment ruling that § 768.0755 applied retroactively to the 2008 accident. In its ruling, the Third DCA determined that the statutory change did not create a new element of a cause of action for negligence. Rather, it merely codifies the “means and method” by which a plaintiff shows a breach of duty of care. Therefore, the Third DCA held that because proof requirements are procedural in nature, § 768.0755 applies retroactively.
Florida business owners have always owed a duty to maintain their premises in a reasonably safe condition. Prior to 2001, Florida also recognized that an injured person had to prove that the business owner had actual or constructive knowledge of a dangerous condition whenever the injury was due to a foreign transitory substance. However, in 2001 the Florida Supreme Court lowered the plaintiff’s standard of proof in slip-and-fall cases by shifting the burden to the premises owner to establish that it exercised reasonable care in the maintenance of the premises. Owens v. Publix Supermarkets, Inc., 802 So.2d 315 (Fla. 2001). The Florida Legislature’s subsequent attempt to erode the effects of the Owens decision returned to the plaintiff the requirement of proving that the premises owner negligently failed to exercise reasonable care, but codified that a plaintiff in a slip-and-fall lawsuit did not have to prove actual or constructive notice of the transitory foreign substance. Fla. Stat. § 768.0710 (2002). The result was that plaintiffs in Florida had a relatively low standard of proof in slip-and-fall cases, compared with the majority of other states.
To create a more balanced approach to liability, the Florida Legislature enacted Fla. Stat. § 768.0755, effective July 1, 2010, which required that for all personal injury claims resulting from a foreign transitory substance, the injured party would have to prove that the business owner had actual or constructive knowledge of the dangerous condition. However, in establishing the new standard of proof, the Florida Legislature failed to address whether the statute could be applied retroactively.
As the only appellate court opinion on the issue, Kenz sets the precedent to be followed by all Florida trial courts. Regardless of whether a slip-and-fall incident occurred prior to when § 768.0755, Fla. Stat. (2010) became effective, plaintiffs must prove that a business establishment had actual or constructive knowledge of the alleged dangerous condition and should have taken action to remedy it. However, this issue may not have been permanently resolved. Florida’s four other appellate districts may also address this issue in the future, and they could potentially create a conflict by holding differently than Kenz. In addition, the plaintiff in Kenz has until May 24, 2013, to request that the Florida Supreme Court review the decision.