Frequently Asked Questions - What Does The Law Say About Transitory Foreign Substances?
Florida Statute 768.0755 discusses premises liability for transitory foreign substances in a business establishment. This tort law regarding negligence applies to every personal injury case where someone slips on a substance and falls in a Florida business establishment. The statute reads that if a person slips and falls on a transitory foreign substance and was injured, that individual must prove that the business establishment had actual or constructive knowledge of the hazardous condition and should have taken action and remedied it. The statute defines a transitory foreign substance as any liquid or solid substance, item or object located where it does not belong. A transitory foreign substance can be a plethora of items. A few examples are: water, oil, grease, food, clothing, and many more items.
The definition of transitory foreign substances arose from legal precedent in a slip and fall case. It was found in a footnote in a premise liability Supreme Court case against Publix Supermarkets where a woman slipped and fell on a banana. In this particular case, the court decided in 2001 and passed a bill in 2002 that the burden of proof was on that of the property owner and its operators to demonstrate that they had used reasonable care in maintaining their premises. However, in the opinion, the court held that the sheer existence of the transient foreign substance on the floor created a presumption that the premises was in fact not maintained in a reasonably safe condition.
Since the case of Owens v. Publix Supermarkets, Inc., Florida Statute with respect to transient foreign substances has drastically changed and evolved. The burden of proof has completely shifted from the defendant to the plaintiff.
Florida Statute 768.0710 stated that the burden of proof was now on the plaintiff. The plaintiff was required to prove that the business establishment/ property owner acted negligently by failing to exercise reasonable care on their premises which, in turn, caused injury. The statute then explained that actual or constructive notice of the transitory foreign substance was not a required element of proof to the claim. But in 2010, Florida legislature commenced its most recent revision of this policy by passing a bill to repeal the former 2002 Florida Statute 768.0710, and enact a new statute in its place, Section 768.0755.
Now, the current Florida Statute 768.0755 regarding transitory foreign substances places an even greater burden on the plaintiff. The plaintiff is now required to prove that the business establishment had either actual or constructive knowledge of the hazardous condition. Actual knowledge and constructive knowledge are important legal concepts often used in tort law. These differing types of knowledge have an extensive effect when determining liability. Actual knowledge is just as it sounds – when someone or the business establishment actually knows something. Actual knowledge is used to directly and clearly prove liability as the guilty party would have the relevant information in question and there is no uncertainty in the matter. Constructive knowledge, on the other hand, references knowledge that a party is presumed to have regardless of whether actually they do or not. A business establishment would be considered to have constructive knowledge if the knowledge is something that they could reasonably be expected to know. It is attributed by law to a given party as knowledge that would be attainable through the exercise of reasonable care. Plainly stated, constructive knowledge is when someone is legally presumed to know something because they should have known it. A court may often find that a person has constructive knowledge of a certain condition, even if they lacked actual knowledge. In order to prove such, the plaintiff or their attorney, would have to present circumstantial evidence showing that the dangerous condition was present for such a lengthy amount of time that if the defendant was practicing reasonable care of its establishment, then they could have known about the hazard which caused the plaintiff’s injuries. Circumstantial evidence can also be presented which reveals that the dangerous condition in question occurred regularly and was therefore foreseeable by the defendant, and they simply took no proactive steps to rectify that foreseeable hazard.
Circumstantial evidence is the compilation of facts which point to negligence as the logical conclusion rather than demonstrating it outright with direct evidence. Simply put, circumstantial evidence implies a fact based on other relevant information. We are able to provide such evidence to establish liability through the evidentiary rule of Res Ipsa Loquitur. Quite often in premise liability claims, direct evidence of negligence does not exist. Therefore, this legal concept permits the plaintiff to establish a presumption of negligence against the defendant through the use of circumstantial evidence. In most states, there are three requirements that a plaintiff, or in most instances, their attorney, must first meet prior to a jury being allowed to make the inference that the defendant is negligent. Those requirements are as follows: the incident would not normally occur unless someone acted negligently; the evidence confirms that neither the plaintiff nor a third party caused the injury or contributed to the injury; and the negligence in question falls within the scope of the defendant’s duty to the plaintiff. Additionally, in order for Res Ipsa Loquitur to apply, there must be no contribution by that of the plaintiff, meaning this incident occurred to no fault of your own. This doctrine also necessitates that the defendant has exclusive control and responsibility over the instrumentality or agent that caused the plaintiff’s injuries.
Tort law is ever changing with the times. If you have recently been victim to a slip and fall accident, you should seek the legal advice of an experienced personal injury attorney right away. Being very familiar with all applicable Florida Statutes regarding premises liability, a personal injury attorney has the appropriate knowledge to easily navigate, present, and argue your claim. Since the burden of proof now lies upon the plaintiff, having a qualified and skilled lawyer that specializes in that aspect of law is indispensable and can be the difference between losing and winning your case.