Appellate / Insurance LitigationCase Notes

Case Note – 3rd DCA Finds Section 768.0755, Florida Statutes, Governing Notice in Slip and Fall Cases Sould be Retroactively Applied

By June 23, 2014 September 15th, 2014 No Comments

By: S. Leigh Matchett, Esq.

In Kenz v. Miami-Dade County, 116 So.3d 461 (Fla. 3d DCA 2013), the Third District Court of Appeal of Florida faced the issue of whether Section 768.0755, Florida Statutes, should be retroactively applied to cases that were pending during when the statute took effect.

At the time of the Appellant’s initial filing, Section 768.0755, Florida Statutes (2002) was in effect and did not require “[a]ctual or constructive notice of the transitory foreign object or substance” for a premise liability claim. Prior to trial in this matter, the 2010 statute took effect, which conversely required proof of “actual or constructive knowledge” by the business establishment. In order for the Third District Court to resolve this issue, it had to determine whether the statute was substantive or procedural in nature.

The Third District Court held that Section 768.0755, Florida Statutes, was procedural in nature because it “codifies a means and method by which a plaintiff shows that the defendant-business establishment has breached its duty of care.” Thus in determining that Section, 768.0755, Florida Statutes, was procedural in nature, the Third District Court affirmed the grant of summary judgment in favor of the defendants.

The Third District Court’s opinion in Kenz shifted the burden of proof from the defendant to the plaintiff. Prior to Kenz, the Florida Supreme Court had held in Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 320 (Fla. 2001), that there was a “rebuttable presumption of negligence that the premises owner did not maintain the premises in a reasonably safe condition.”

Most recently, in Pembroke Lakes Mall Ltd. v. McGruder, the Fourth District Court of Appeal came to a different conclusion concerning this same issue.  In certifying its conflict with the 3rd DCA’s Kenz decision (which held Fla. Stat. §768.0755 was a procedural change and should be applied retrospectively), the Fourth District requested resolution by the Florida Supreme Court. This decision is effective immediately and applies to all pending cases in the 4th DCA, unless and until the 4th DCA elects to reconsider the case, which is not likely.

The Fourth District Court reasoned that the 2010 statute added a new element to a premise liability claim and therefore created a new legal obligation and new legal consequences that would affect a plaintiff’s substantive rights. The Fourth District Court opined that retroactively applying the 2010 statute “would result in a wholesale abolition of [the plaintiff’s] accrued causes of action. This type of impediment to a preexisting cause of action is constitutionally impermissible.”

Each of these opinions will be controlling in their respective Districts. However, in a trial court’s District that has not issued an opinion on the matter, the trial court is left to decide which opinion is the controlling precedent until this issue is decided in its own District.

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