It’s important that you and your attorney consider any pre-trial settlement offers carefully, as declining a defense settlement offer in a case later favorably decided for the defense could result in an order for YOU to pay the defense’s attorney fees. (As injury lawyers, our fees are contingent on winning, meaning we’re only paid if you’re successful with your claim.)

This is not to say Florida slip-and-fall injury claims aren’t worth pursuing, but it is important to be aware of the potential pitfalls in these cases.

Recently in Georgia (which approaches slip-and-fall case from a similar angle as Florida), jurors considered the claim of a woman who fell at a jazz club and injured her back and hip, requiring extensive physical therapy.

According to The Daily Report at Law.com, plaintiff turned down a $100,000 settlement offer from the defense prior to trial. Now, because jurors decided the case in favor of the club, she may be on the hook for defense attorney fees between $75,000 to $100,000. Similarly in Florida, F.S. 768.79 states that if a plaintiff receives and reject a settlement offer and the the courts award a judgment that is 25 percent less than that amount (or the case is decided wholly in favor of the defense), the defense is entitled to collect attorney’s fees. This goes both ways.

This is an important consideration especially in slip-and-fall premises liability claims because they can be tough to prove.

Burden of Proof in Florida Slip-and-Fall Lawsuit

Property owners in Florida who invite the public on site for their own financial benefit owe the highest duty of care to guests. That means maintaining the site in a reasonably safe condition, regularly checking for potential hazards and warning guests when dangers are discovered that can’t be immediately rectified.

This does not, however, absolve guests from the responsibility of watching where they’re walking and essentially using common sense.

F.S. 768.0755 changed the rules when it came to Florida slip-and-fall lawsuits. Specifically where the claim is that there was some transient substance on the floor that caused injury, plaintiffs must show the business establishment knew or should have known about the danger (actual or constructive knowledge) and failed to address it. Constructive knowledge is established by producing evidence that this dangerous condition occurred with regularity or had existed for such a time that it should have been known to property owners.

If the claim does not involve a transient substance (a spilled drink, rainwater, oil, some other slip hazard) it will proceed like any other premises liability claim.

Jurors Find Jazz Club Danger Obvious, Plaintiff Told of It

In the recent jazz club premises liability lawsuit, Law.com reports plaintiff, 54, arrived that evening with a friend. The hostess requested another worker show the pair to their reserved high-top table. The worker pointed it out, but did not walk them there. Plaintiff pulled out a high-top chair and stepped backward as she did so, tripping over a step that was just behind her, suffering hip and knee pain. She later learned suffered a spinal disc bulge in her lower back.

She would later allege the light that was supposed to have illuminated that step for patrons was covered by a poster, and the lit candles on the table were insufficient. Further, she wasn’t the first person to fall down those steps (something that would significantly strengthen her case, as it goes to show constructive knowledge that this was a danger).

Defense attorneys, however, argued that the employee who showed them where the table was had cautioned them to mind the step. Further, evidence was presented that plaintiff had been to other similar night clubs before and was aware that lower lighting was often used. Further, defense testified the steps were open and obvious in a location that was noticeable and readily visible, even in spite of the low light.

Much of the testimony presented at trial came down to, “How dark was it?”

Further, the surgeon who treated plaintiff testified the operation wasn’t related to her fall.

Jurors ultimately decided the case for the defense.

Our Fort Lauderdale slip-and-fall injury lawyers routinely review outcomes like this – even when they aren’t ours – to determine what went wrong and how similar outcomes can be avoided in the future.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Jury Sides With Jazz Club After Patron Rejected $100K Settlement Over Fall, August 19, 2019, Law.com

Each state has its own set of criteria for what must be proven, though it’s often similar. Florida updated its slip-and-fall statute a few years ago. F.S. 768.0755 requires plaintiffs to show that the business created a condition that was dangerous or was directly informed about the condition (this is known as direct knowledge) OR that the hazardous condition existed for so long the business should have discovered it or that it occurred with such a frequency that it was foreseeable to the business. Plaintiff must also prove defendant business was wrong in failing to correct or warn patrons about the danger.

Meeting this proof burden means having a Fort Lauderdale injury attorney who will advise and help you in collecting pertinent evidence and throughout the legal process.

Recently a federal appeals court weighed the outcome of a slip-and-fall case, which was not decided in plaintiff’s favor. We share this not to discourage claimants – it’s always wise to seek input from an attorney who can help you decide whether you have a case worth pursuing – but to underscore how these claims may be scrutinized by the courts.

According to court records from the U.S. Court of Appeals for the Fifth Circuit, plaintiff was out to dinner with her husband and another couple when she fell while walking to the restroom. This restroom was just past the kitchen. At the time of the fall, plaintiff had been using crutches, as she had just had recent surgery on her heel. Plaintiff and her husband alleged there was a substance on the floor just outside the kitchen doorway and restrooms that caused plaintiff’s crutch to catch and slip underneath her, causing her to fall.

The case was deemed to be under federal jurisdiction, as plaintiffs are from Texas, but the restaurant is headquartered in Delaware but principally located in Georgia. Texas law applied as the restaurant was located in Texas. The court noted that in order to prevail on a premises liability claim in Texas (similar to in Florida), plaintiffs have to prove property owner had actual or constructive knowledge of the dangerous condition, that the dangerous condition caused an unreasonable risk of harm, that the property owner failed to use reasonable care in reducing or eliminating the risk and that this failure was the proximate cause of injury to the invitee.

The primary question in this case was whether the property owner had knowledge of the condition. In order to prove knowledge, plaintiff needs to show defendant created the condition, defendant actually knew the substance was there or that the condition more likely than not existed for such a time as to give the property owner sufficient time to discover it. Direct and circumstantial knowledge may be applicable.

The trial court, in a decision later affirmed by the 5th Circuit, found there was not enough evidence to show the restaurant had caused the substance to be on the floor, and any evidence to this was speculative. A manager opined it was possible that employees had tracked water or food from the kitchen to that area, but this suspicion was not sufficient to meet that proof burden. There also was no evidence that the restaurant had been directly informed of the slippery substance on the floor or that they had seen it. Finally, there was no indication of how long the substance had been there, which would be necessary in proving it had existed for such a length of time as for it to be reasonably discovered.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

McCarty v. Hillstone Restaurant Group, July 18, 2017, U.S. Court of Appeals for the Fifth Circuit

More Blog Entries:

Dangerous Property in Florida Garners Lawmaker Attention, July 17, 2017, Fort Lauderdale Personal Injury Lawyer Blog

However, that provision was later repealed in 2010 and replaced with F.S. 768.0755, which omitted the “mode of operation” language completely, which defendants have argued means that state courts don’t recognize it anymore. Specifically, they’ll cite the 2015 ruling in Woodman v. Bravo Brio Restaurant Group, decided by the U.S. District Court of for the Middle District of Florida, which granted a defense motion to strike a claim citing negligent mode of operation on the grounds it could not longer serve as a basis for proving premises liability. Still, the state supreme court hasn’t ruled on it as of yet, and plaintiffs continue to assert it as a cause of action in injury complaints, although there is generally no getting around F.S. 768.0755 and the requirement to prove defendant had actual or constructive knowledge of the alleged dangerous condition.

Other state courts continue to wrestle with this issue too. Recently in Rhode Island, the state high court weighed a case that involved a woman who slipped on oil and cucumber near a self-serve salad bar section in a grocery store, causing her to suffer serious personal injury.

According to court records, plaintiff entered the store around 2 p.m. and upon leaving the meat department, took a few steps and slipped on the debris near the salad bar. She never saw a warning sign and testified there were no employees in the area and no one immediately came to her aid after she fell. The store told her there was no one on staff to help her with an incident report.

She was taken to a nearby hospital, where x-rays revealed no broken bones. There were however soft tissue injuries and numerous tears in her knee and bulging discs. Plaintiff sued for premises liability, seeking compensation for her injuries.

At trial, the manager was asked whether spills occurred often at the salad bar, to which he answered no. He did say however, there were occasional spills, but that no particular employee was assigned to monitor the area. However, deli employees could see the area and whether it needed to be cleaned, and a chef would come around every so often to see if it needed refilled. There were no protective materials or mats to absorb spills and there were no warnings cautioning customers about possible spills.

After all the evidence had been presented, defense moved for summary judgment, arguing that while it wasn’t in dispute that plaintiff fell on oil and cucumber from the salad bar, there was no evidence of actual or constructive notice to the store or anyone employed there, which would have determined whether the store had a reasonable amount of time to clean it up. Plaintiffs moved for judgment as a matter of law, arguing the store lacked safety policies and the mode of operation rendered a constant danger.

Trial judge rejected plaintiff’s motion, but reserved judgment on defense motion and the case went to the jury, which was instructed on the law, including the requirement to keep the area in reasonably safe condition for food and grocery shopping. The court did not advise jurors on the theory of negligent operation – but plaintiff didn’t object to that.

Jurors decided in favor of defendant.

Upon appeal, the Rhode Island Supreme Court affirmed, finding the trial court didn’t err in refusing plaintiff’s motion for a new trial and there was no mistake in the failure to instruct jurors on the mode of operation because the plaintiff never objected to it. The court declined to weigh the merit’s of plaintiff’s assertion that the mode of operation theory should be adopted in light of her circumstances.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Bates-Bridgmon v. Heong’s Market, Inc., Jan. 15, 2017, Rhode Island Supreme Court

More Blog Entries:

Wrongful Death Lawsuit Alleges Restaurant Negligent in Triple Murder, Jan. 14, 2017, Fort Lauderdale Injury Lawyer Blog