THE NEWS SERVICE OF FLORIDA: Slip and Fall Bill Gets Hearing Next Week

THE NEWS SERVICE OF FLORIDA published this article on February 24, 2010.

By DAVID ROYSE

THE CAPITAL, TALLAHASSEE, Feb. 24, 2010…..One minute you’re strolling through the produce aisle at the grocery store, trying to decide whether those canteloupes look good.

Next thing you know, you’re on the floor with a broken hip and you think, What the..? Who put that banana peel there?

Well, should you decide to sue, the question for the court isn’t who put the banana peel there, but rather whether the store workers knew the floor was dangerously slippery because of the peel or some other material, or whether they should have known.

Who has the burden of proving whether the store knew or should have known about the danger is the subject of a bill that will start working its way through the Legislature on Monday. It’s the highest priority for retailers, and opposed by plaintiffs lawyers.

That question was also the subject of a landmark 2002 state Supreme Court decision in Owens v. Publix Supermarkets. In that decision, the court ruled that plaintiffs in slip and fall cases didn’t have to demonstrate that store workers knew that their floor was dangerous. Rather, the burden was put on the defendant to show that it had exercised reasonable care in protecting customers from falling. The court reasoned that the store owners were in a better position than someone who had just fallen to determine whether the dangerous situation had existed for a long time or not.

Retailers quickly asked lawmakers to undo that decision, and a compromise between the lobby for plaintiffs attorneys on the one side and the business community on the other was struck in 2004. That compromise said essentially that neither side truly had the burden of proof in such cases – that either party could present evidence to the jury which could then make its decision, but that neither side was presumed to be right.

Store owners say that since then their costs for defending and paying out in such cases have gone dramatically higher than costs for similar stores in other states, and they blame rules they say now favor plaintiffs in such cases, and they want out of the 2004 compromise.

The Florida Retail Federation’s Samantha Hunter Padgett said that store owners in reality do now have to convince a jury that their floor was safe, rather than the plaintiff having to convince the jury that it wasn’t.

“So it’s basically that they’re guilty until proven innocent,” Padgett said.

The bill (HB 689) that will be before the House Civil Justice and Courts Committee on Monday would put the burden of proof on the customer who falls and gets injured to show that the store should have known about the danger – returning the law to the way it was before the Owens decision. The measure, sponsored by Rep. Gary Aubuchon, R-Cape Coral, is widely expected to be approved by the panel, which is seen as business friendly.

Plaintiffs lawyers will argue against the measure, saying that it doesn’t make sense to require someone who has just been injured in a fall to try to gather evidence – like asking for the names of other people in the store who may later be able to testify about the floor. That person probably just wants to get to the hospital to take care of that broken hip.

“The plaintiff is not in a good position to know how long the banana peel was on the floor – or to find out,” said Paul Jess, a lobbyist for the Florida Justice Association, the trial lawyer lobby. If anyone has to prove anything to the jury, it makes more sense for it to be the store owner, as the Supreme Court ruled in 2002, said Jess. “They’re in a position to know how often they clean their floor – and they can conduct an investigation.”

An identical bill (SB 1224), sponsored by Sen. Andy Gardiner, R-Orlando, is filed in the Senate and has two committee assignments but hasn’t yet been put on the agenda for a hearing by either.