Understanding and winning slip and fall cases for the injured has become more difficult with the recent changes in Florida law. Let me begin by clarifying a common misconception that I have heard for more than twenty years representing people who have fallen in a South Florida grocery store, shopping mall, hotel and even a hospital parking lot. Our clients frequently believe that simply because they slipped or tripped, they are entitled to file a claim and obtain money from a business owner. That is not accurate. Though it seems obvious, let me point out that to file any kind of personal injury claim in Florida–no matter if it’s for a car accident, medical malpractice, or a slip and fall–there must be an injury.

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Being embarrassed or insulted by the store’s owners or employees following an incident is simply not enough to warrant making a claim. For instance, I was recently consulted by a woman who tripped over a display rack at Neiman Marcus in Bal Harbor. Yes, she tripped, but she was not injured and never actually fell. She had not even damaged her shoes, but she wanted to sue the store. Her inquiry is common. There must be some form of injury before any further legal evaluation is merited.

Specifically in slip and fall cases, the claimant or plaintiff must prove three elements to have a viable case. This is known as the plaintiff’s “burden of proof.” In contrast, the defendant store owner has no burden to prove anything. The first element a claimant must prove is the existence of a legal duty or obligation on behalf of the defendant, who could be the business owner, manager, or both. There are certain situations when business owners do not have to provide protection to certain individuals–such as trespassers. The two principal obligations a business owner has are to take ordinary and reasonable care of the property to keep it safe and to warn of a dangerous condition known to the defendant that a visitor or customer could not know. The typical situation we encounter is a slippery floor caused by some kind of liquid, most commonly water. Under the Florida law, this is called a transitory foreign substance, and it is governed by Florida Statute §768.0755.

For example, business owners have a far better chance to know that their stores’ floors get exceptionally slippery when wet. Accordingly, when it rains, they have a responsibility to make sure visitors are warned of the dangerous condition.

In a slip and fall case, it is the plaintiff’s burden of proof or responsibility to prove that the business owner knew or should have known of the dangerous condition. The point when a store owner actually knows of the dangerous condition is called “actual notice”; when a store owner should have known of the condition is called “constructive notice.”

Secondly, one must prove that there is a certain “standard of protection” for the public in general and the injured person specifically. For example, it is not the industry standard right now for gyms or restaurants to maintain automatic external defibrillators on their property. So, if a Starbucks patron goes into sudden cardiac arrest and dies, his Estate would have to prove that Starbucks and other fast food establishments are obligated to maintain AEDs. Currently, that is not the standard in Florida, and that case would probably be dismissed.

Thirdly, plaintiffs have to prove that the alleged failure of the business owner or condominium association actually caused an injury. This is often the most difficult element to establish, especially when injuries are hard to prove. Back injuries are notoriously difficult to prove in the absence of an acute traumatic fracture. The defense lawyers and the medical experts they hire will evaluate any potential back injury claimant and typically argue that the injuries are preexisting and degenerative rather than caused by the fall. Most people I have represented have at some time or another complained of or been treated for back pain before the date of the injury. It may have been so insignificant or long ago that they have forgotten. But one of the first things defendants do when investigating a slip and fall is obtain all of the claimants’ medical records. Inevitably, especially with older clients, there will be some notation of a previous back complaint or treatment. Even more frequently they have suffered an accident or injury where they received extensive treatment for a back or neck injury.

When faced with a complex preexisting medical history, the plaintiff’s ability to prove that the fall actually “caused” an injury can be often nearly nonexistent. Recently Florida’s Third District Court of Appeal upheld the dismissal of a slip and fall case that occurred at Miami International Airport. Carrie Kenz claimed she was permanently injured after slipping on some water on the floor of the airport. She sued both Miami-Dade County, which runs Miami International, and UGL Service Company that provides the airport’s maintenance. The case was dismissed according to the record because Ms. Kenz was unable to prove that either defendant had any notice or knowledge of the water on the floor, nor could she show that they were unreasonable in how they maintained the premises.