Actual knowledge means the business was aware of that particular hazard in that place and time. Constructive knowledge, per F.S. 768.0755, is proven with circumstantial evidence that shows:
- Dangerous condition existed for a period of time wherein, in the ordinary exercise of care, the business should have known about the condition;
- Condition occurred with regularity and was therefore foreseeable.
The dangerous condition alone or even the fact that plaintiff was hurt – even severely – isn’t enough to prevail. One must show either actual or constructive knowledge. Most slip-and-fall cases are based on constructive knowledge, as actual knowledge can be difficult to prove.
In a recent case before the U.S. Fifth Circuit Court of Appeals, justices ruled in favor of defendant under Louisiana’s merchant liability statute (which is similar to Florida in its requirement to prove actual or constructive knowledge). Court held plaintiff failed to present any positive evidence defendants (the store and ice company) created or had actual or constructive notice of the condition that caused pregnant plaintiff to slip. She suffered a still birth the day after her fall.
According to court records, plaintiff was pregnant and an employee of the store. (We should stop right here and say that typically in Florida, as in most other states, employees cannot sue their employers for injuries sustained in the course and scope of employment, as workers’ compensation is generally deemed the exclusive remedy. It’s not clear from appellate court records whether that challenge was raised or what special circumstances there might have been to overcome this.) In any case, plaintiff arrived to work, where she suffered a slip-and-fall on a mat in front of an ice freezer. She fell forward onto the ground. Her hands were not “that wet” when she got up, but she did notice the mat had shifted and she looked to find water underneath the mat. She had not noticed water outside the rug, only underneath it.
Later in the afternoon, she felt unwell and went to the hospital. There, doctors told her the child had no heartbeat. They induced labor and the child was stillborn the following day.
Plaintiff and the child’s father filed a claim for wrongful death, and both defendants moved for summary judgment. The magistrate judge granted both requests for summary judgment, finding plaintiff did not testify or present any evidence indicating employees of either defendant created the liquid hazard or that either defendant had actual or constructive notice of it. There was no evidence the water was visible from above the mat or that the water had been there for any length of time or any information on how it got there.
However, the 5th Circuit affirmed, noting even the plaintiff conceded there was no evidence to explain how the water got under the mat or how long it had been there prior to the fall.
Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Duncan v. Wal-Mart Louisiana, LLC, July 14, 2017, U.S. Court of Appeals for the Fifth Circuit
More Blog Entries:
Slip-and-Fall Accidents Require Stringent Proof Burden, July 22, 2017, Fort Lauderdale Slip-and-Fall Accident Lawyer Blog