Can I sue for a slip and fall in Florida, and what do I have to prove?

Can you sue for a slip and fall in Florida?

Yes, you may be able to sue for a slip and fall in Florida, but Florida law says what you must prove. If you slipped on a spill or something similar in a store or other business, you must prove the business knew, or should have known, about the dangerous condition and should have taken action to fix it.

"Should have known" is called constructive knowledge. Florida law says it may be proven by circumstantial evidence (facts that point to it without proving it directly) showing that the danger was there so long that, using ordinary care, the business should have known about it, or that it happened with regularity and so could be expected.

In a negligence case (a case about someone's carelessness), your own share of fault reduces your damages (the money you can recover for your harm) by that share, but it does not by itself stop you from recovering, subject to the more-than-50-percent rule. If you are found more than 50 percent at fault for your own harm, you cannot recover any damages.

This proof rule is written for a slip on a "transitory foreign substance" in a business, like a spill on a store floor. Trips, and falls at someone's home, are covered in the questions below. For more on Florida slip and fall claims, see slip and fall lawyers in Melbourne.

What does Florida law say about slip and fall lawsuits?

What you must prove

Subsection (1) of section 768.0755, Florida Statutes, says: "If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it." In plain words, if you slipped on something like a spill in a business, you must prove the business knew or should have known about the danger and should have acted to fix it.

How to show the business should have known

The same subsection goes on: "Constructive knowledge may be proven by circumstantial evidence showing that: (a) The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or (b) The condition occurred with regularity and was therefore foreseeable." In plain words, the statute names two ways to show the business should have known: the danger was there long enough that a business using ordinary care should have known about it, or the danger happened again and again, so the business could expect it.

Other duties stay in place

Subsection (2) says: "This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises." Common law is law made by court decisions instead of written in a statute. In plain words, Florida's statute on slip and falls on a transitory foreign substance in a business does not change any common-law duty of care owed by whoever possesses or controls a business property.

Your share of fault

Subsection (2) of section 768.81, Florida Statutes, says that in a negligence action, the injured person's own fault "diminishes proportionately the amount awarded as economic and noneconomic damages" for the injury it caused, "but does not bar recovery, subject to subsection (6)." In plain words, your share of fault lowers your damages by that share, but it does not by itself stop you from recovering.

Subsection (6) says: "In a negligence action to which this section applies, any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages." So if you are found more than 50 percent at fault for your own harm, you cannot recover any damages. The same subsection says it "does not apply to an action for damages for personal injury or wrongful death arising out of medical negligence pursuant to chapter 766." In plain words, the more-than-50-percent bar does not apply to personal injury or wrongful death claims that arise from medical negligence.

The more-than-50-percent bar was added by chapter 2023-15, Laws of Florida, and the bar applies to lawsuits filed after March 24, 2023. Judges decide how the law applies to the facts of each case, and some have ruled differently for injuries that happened before the change, but the law on the books stands.

What do you have to prove in a slip and fall case?

Under section 768.0755, the proof is on you, the injured person, and it centers on what the business knew or should have known about the danger. Here is how that can look in common situations. These are general examples, not anyone's real case.

The business knew

Actual knowledge means the business knew about the danger. For example, you may try to show that an employee saw the spill, or was told about it, before you fell.

The danger was there a long time

For example, you may be able to show that a spill sat in an aisle so long that, using ordinary care, the store should have known about it. Store video, or what witnesses saw, may help show how long it was there.

The danger kept happening

For example, you may be able to show that a cooler or a roof leaked onto the same spot again and again, so the business could expect it. Past complaints or repair records may help show that it happened before.

What is not enough

Under the statute's words, showing only that you fell and that the substance was on the floor is not enough. You must also prove the business had actual or constructive knowledge of the danger and should have taken action to fix it.

Your own share of fault

The business may argue that you were partly at fault, for example because you were looking at your phone or wearing slick shoes. Any share of fault you are found to have reduces your damages by that share, and if it is more than 50 percent, you cannot recover any damages. For more on stores, read Is a store responsible if I slip and fall there?

More questions about suing for a slip and fall

Can I still sue if I was partly at fault for my fall?

You may be able to. Being partly at fault does not by itself stop you from recovering, as long as you are not found more than 50 percent at fault. Your share of fault reduces your damages proportionately, which means by your percentage of fault.

Does the slip and fall statute apply if I tripped or fell at someone's home?

Section 768.0755 covers a person who "slips and falls on a transitory foreign substance in a business establishment." A trip over a broken step, or a fall in a private home, is not described by those words, so this section generally does not set what you must prove there. The section also says it does not affect any common-law duty of care owed by whoever possesses or controls a business property. Talk to a lawyer about what applies to your fall, and for more, read Does it matter if I slipped or tripped?

What if more than one business is to blame?

Joint and several liability is a rule that lets one party be made to pay the whole amount, even when others share the blame. In a Florida negligence case, the court enters judgment against each liable party based on that party's own percentage of fault, not under joint and several liability. For example, if a store and the company it hired to clean its floors were both found at fault, the judgment against each would be based on its own share of fault.

How can you protect a slip and fall claim now?

Because you must prove what the business knew or should have known, the proof you save early matters. These steps can help:

• Get medical care, and keep your medical records and bills.
• Tell the business what happened, and ask that a written incident report be made. Write down the name of the person you spoke to.
• Take photos of the floor, the substance, the area around it, and your shoes.
• Write down the names and phone numbers of witnesses and employees. Also write down anything anyone said about how long the danger was there or whether it has happened before. That is the kind of proof section 768.0755 describes.
• Ask the business in writing to keep its video of the area and the time of your fall.

For a fuller list, read What should I do after a slip and fall?

Your deadline to sue

Under section 95.11, Florida Statutes, a lawsuit for an injury caused by negligence must be filed within two years. That two-year limit came from a 2023 change that applies only to claims that arose after it took effect on March 24, 2023, and under section 768.28, Florida Statutes, a negligence lawsuit against a Florida state or local government agency must be filed within 4 years after the claim accrues (legally arises), but medical malpractice and wrongful death claims must be filed within the deadlines in section 95.11(5). Before you can sue a government agency, a written claim generally must be presented within 3 years after the claim arises (2 years for wrongful death) and then denied, or left without a final decision for the time the law allows. For older claims and the full rules, read How long do I have to file a personal injury claim in Florida?

Talk to a Melbourne slip and fall lawyer

Douglas R. Beam, P.A. is a personal injury law firm in Melbourne, Florida. If you were hurt in a fall and have questions about how these rules may apply to you, you can talk with us in a free consultation.

Call us at (321) 723-6591, or send us a message through the form on our website. Our office is at 25 West New Haven Avenue, Suite C, Melbourne, FL 32901.

Sources

• Section 768.0755, Florida Statutes
• Section 768.81, Florida Statutes
• Section 95.11, Florida Statutes
• Section 768.28, Florida Statutes
• Chapter 2023-15, Laws of Florida