Slip-and-Fall Injury Claims

Slip-and-fall accidents have long been portrayed as slapstick, with victims the hapless clowns. The truth of the matter is falls are often quite serious, resulting in debilitating injuries and even fatalities. They account for millions of hospital emergency room visits each year, and they are a top cause of injury and death among workers and the elderly – not to mention patrons at shopping centers. What’s more, many of these situations arise from negligence. That is, property owners fail to use reasonable care in curtailing known or foreseeable hazards.

Miami slip-and-fall accident attorneys at Gerson & Schwartz, P.A., have a decades-long history of success in representing clients injured by someone else’s negligence. We have a close understanding of Florida statute, as well as ever-evolving case law.

While every injury claim has its own unique set of facts and circumstances, there are some statutes, legal doctrines and case law that are applicable to many slip-and-fall accident claims.

Slip-and-fall injuries are under the umbrella of what is known as “premises liability law.”

Property owners and those responsible for controlling/ maintaining a property are required to use reasonable care in mitigating unsafe conditions on a property that are known, discoverable or foreseeable. This often means property owners are expected to conduct regular checks of the site, though the question of what is “reasonable” in terms of time intervals and meticulousness will depend on the context and the type of operation.

Specific to cases involving a “transitory foreign substance” on the floor of a business establishment, Florida Statute 768.0755, passed by the state legislature in 2010, plaintiffs will be required to show by the greater weight (preponderance) of the evidence that:

• Defendant had actual knowledge of that specific hazard;
  OR
• Defendant should have known about the hazard because it occurred regularly and was therefore foreseeable;
  OR
• Defendant should have known about the hazard because it existed for such a length of time that it should have been discovered through use of reasonable care.

This is referred to in the statute as the business having “actual or constructive knowledge” of the dangerous condition. There is also the duty to warn of hazardous conditions that may not be quickly addressed.

These determinations can be subjective. For example, exactly what amount of time does a condition need to exist for it to be considered “unreasonable”? That’s going to depend on factors like the type of business, the type of hazard and how often it occurred. There may also be questions about whether a warning (if one is given) was adequate. This too can be subjective.

Florida premises liability law takes into consideration the status of the visitor before determining the duty of care owed to that individual. Certain people are owed a higher duty of care, based on their relationship to defendant. Your attorney can best explain which category criteria you met at the time of the incident.

General categories and accompanying duty are:

• Public invitee. This is an individual who is invited on site as a member of the public for a public purpose. Landowners must warn or correct about dangers about which site owner/ controller knows or should know by use of reasonable care and that visitors likely wouldn’t know with use of reasonable care. Property owners must also keep the site in a reasonably safe condition.
• Business invitees. These are people invited on site (usually private property) to directly or indirectly further the profits of the entity that possesses the land. Duty same as for public invitee.
• Invited Licensee. This would be someone who is a social guest. Duty here would be the same as for the first two.
• Uninvited licensee. This is someone who enters or stays on site for his or her own convenience, without being invited. The only duty here is to refrain from willful or wanton injury, which includes setting traps.
• Trespasser. Someone who enters a site without invitation, license or any other right and intrudes for his or her own purpose. Duty is same as for unlicensed invitee.

Exact defenses raised with depend on the individual facts. What we can say is that particularly in cases where the stakes are high, defendants may assert multiple defenses.

Some you may anticipate include:

• Lack of actual or constructive knowledge. Property owner was unaware of the condition and should not have been expected to know about it. For example, if the evidence tends to show a small spill in a grocery store existed only a few minutes and no one reported it, the store is likely to argue it didn’t have time to discover it during regular site checks.
• Assumption of risk. Property owner may argue that you know the potential for slippery conditions was a risk you assumed when you entered the site, and therefore it was your duty to use appropriate caution. This would most likely be applicable in certain settings, such as a pool, where water is routinely splashed all over the ground.
• Open and obvious. As noted in the 1986 Florida Supreme Court case of Ashcroft v. Calder Race Course, Inc., a property owner isn’t liable for an invitee’s injuries caused by a danger that was known or obvious to the injured party – except if the owner/ possessor should anticipate harm despite the open and obvious nature of that condition.
• Comparative fault. This defense would arise when a defendant may not be able to entirely evade liability, but is looking to minimize it. Florida Statute 768.81 allows that contributory fault of an injured claimant won’t prohibit the claim, but it will proportionately reduce one’s damages.

There may also be defenses of sovereign immunity in cases involving public land owners (which can be overcome via provisions of Florida Statute 768.28 and the waiver of sovereign immunity in tort actions). However, as a slip-and-fall accident attorney in Miami can explain, damages in claims against government defendants will be limited to $200,000 per person and $300,000 per incident.

The statute of limitations is the window of time you have in which to file your claim. Florida Statute 95.11 allows up to four years filing a personal injury lawsuit, including a claim asserting a premises liability claim for a slip-and-fall. However, there could be certain notice requirements that stipulate faster action. Wrongful death claims must be filed within two years.

However, individuals are urged to reach out to a Miami injury lawyer sooner than later. The fact is important evidence is gleaned in the immediate aftermath of a fall, including witness statements, surveillance video and physical evidence. There is no guarantee that these will be preserved or available four years later. Consulting an attorney right away can help bolster your chances of a successful claim.

If you or someone you love has been injured in a slip-and-fall accident, please contact the Miami Personal Injury and Accident Attorneys at Gerson & Schwartz, P.A., for a free consultation by calling (305) 371-6000 or using our online contact form.