The Ironic & Seemingly Inconsistent Florida Trend of Analyzing Substances Case by Case

courtroom-300x225-300x225The Florida Courts seem determined to factually analyze every substance known to man and whether that substance and the specific condition it is in can serve as evidence of constructive notice.  Constructive notice is important in slip and fall cases these days because Florida Statute 768.0755 places the burden on the plaintiff to prove that a business establishment had constructive notice.  The only other way to have a case, per the statute, is to show that the condition occurred with regularity or that the defendant had actual knowledge of the substance.  So, in Florida, we have a body of case law that goes substance by substance and picks apart the substance from a factual basis to determine whether the person who slipped on that substance has a material issue of fact that can be presented to a jury.  This case by case analysis goes from fruit to fruit and frozen substance to frozen substance.  There seems to be no end to the various foods, chemicals, compounds, molecules, drinks, and items of all kinds that the Florida Courts will look at.

If you look at the history of the case law, there is some irony in all of this.  The Courts have ruled upon thawed ice cream (Camina v. Parliament Insurance, 417 So. 2d 1093 (3rd DCA 1982)), partially frozen peas (Teate v. Winn-Dixie, 524 SO. 2d 1060 (3rd DCA 1988)), partially liquified orange juice concentrate (Grizzard v. Colonial Stores, Inc., 330 So. 2d 768 (1st DCA 1976)), dirty water (Encarnacion v. Lifemark Hospitals of Florida, 211 So. 3d 275 (3rd DCA 2017), and other substances.  The irony is that the evaluation that they are supposed to be making is whether there is any issue as to material fact.  But, in analyzing the substances down to the molecules, most of these cases seem to make factual determinations that should be within the sole province of a jury.  It seems inconsistent to say that there must be an absence of a material issue of fact and then spend considerable time factually picking apart, analyzing, and determining that a substances specific condition does or does not tend to prove constructive notice.  Going on a case by case basis and looking at each substance and how it may or may not serve as evidence of constructive notice is no different than the job a jury, in the end, must do.

Now, recently, on February 19, 2020, the Fourth DCA ruled upon a grape.  In Oliver v. Winn-Dixie Stores, (No. 4D19-291), the 4th DCA held that a clear and dirty liquid with a red or purple speck in it that looked like it had been smeared upon the ground was not enough for Brandy Oliver to get to a jury.  They cited the absence of wheel tracks and footprints and found there to be no issue of material fact.  The 4th DCA leaned upon the testimony of an employee that he passed by the area repeatedly and that the floor was clean and dry moments before the fall.  But, apparently, there was a video that was not part of the record.  And, this video, according the Plaintiff, tended to show he was not looking carefully.  Moreover, there was no discussion whatsoever of how the condition was created.

It would seem that if the substance bears this much discussion and factual analysis, it deserves to go before a jury.  It would be intellectually honest to simply let the jury decide whether there is actual or constructive notice under Florida Statute 768.0755.  That is their province.

In the end, though, on top of the seemingly inconsistent trend of going case by case, there are gaps in the case as set forth by the Fourth DCA.  Why wasn’t the video made part of the record?  Why didn’t the video show when the grape or substance came to be on the ground?  Did the Defendant not produce enough time prior to the incident to determine when the grape came to be on the ground?  Can you see the grape in the video?

These questions in no way suggest that the attorney here did anything but a stellar job.  So many things can be left out of opinions due to an appellate court trying to keep attention on the issue at hand and not create bad law or even dicta.

Preservation Letters and Motions for Sanctions

For litigants, it is important to have a Miami slip and fall attorney that has litigated cases like this.  In Miami slip and fall cases, one of the most important things a lawyer can do is send a preservation of evidence letter regarding any video of an incident scene from the time of the incident, preceding the incident for a period of time, and after the incident.  Then, if the Defendant does not save a sufficient amount of video or destroys the video, the Defendant may be at risk for sanctions by the court. These sanctions may include a rebuttable presumption of negligence or an adverse inference by the court. Basically, if such an adverse inference is given, the jury may infer that the evidence destroyed would have been unfavorable to the defendant. These sanctions can often make the difference in settlement discussions or the rendering of a favorable verdict.

The second important step that a plaintiff attorney can take is to be certain that a motion to compel the videotape is filed and heard before the plaintiff’s deposition. Most defendants will attempt to withhold the video until after the plaintiff has testified in deposition. They will mistakenly claim work product privilege or simply ask the court to rule that they do not have to produce the video until after the plaintiff’s deposition. Most courts are now ordering the production of the tapes prior to the plaintiff’s deposition. But the plaintiff attorney must bring the issue before the court in a timely manner to get a proper ruling. Ultimately, the analysis of the video by the lawyer himself or herself is key to the question of how to make an argument for constructive notice.

Miami Slip and Fall Lawyers

Wolfson & Leon handles slip and fall cases throughout Florida and aggressively litigates them.  We carefully screen cases to make sure that our clients have a fighting chance to get to a jury if that is necessary.  One challenging part of these cases is explaining the law to our clients.  It is complicated.  But it is vitally important to make sure that our clients understand the law and challenge posed by Florida Statute 768.0755.

If you have been injured in a slip and fall case and want to talk to a slip and fall lawyer in Miami at Wolfson & Leon, please call us at (305) 285-1115. We litigate slip and fall cases throughout Florida from our offices in Fort Lauderdale, Miami, Fort Myers and West Palm Beach.  Also, if you are a lawyer reading this and want help with your case, we would be happy to work as co-counsel with you.  Or, if you just want to bounce some facts off us in a phone call, we are more than willing to talk with you.  Call us today – we are here to help.

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