Death of the Negligent Mode of Operation Theory: An Update on Florida’s Transitory, Foreign Substances Statute

By R. Thomas Roberts, Esq. & Amanda L. Ingersoll, Esq.*

Within the past 15 years, Florida’s slip-and-fall law has experienced its own ups and downs. In 2010, noting that slip-and-fall accidents were the most common type of liability claims facing insurers of bars, restaurants and taverns, the Florida Legislature revised the statutory burden of proof required to prevail in a slip-and-fall action. Approximating that eight million people are injured each year as a result of slip-and-fall accidents—costing an estimated $100 billion annually—the legislature’s 2010 bill switched Florida law back to its pre-2002 burden of proof and eliminated a plaintiff’s ability to reply upon the manner in which a business operates to establish that it was negligent.

Beginning notably with the Florida Supreme Court’s 2001 opinion in Owens v. Publix Supermarkets, Inc., 802 So. 2d 315 (Fla. 2001), the legislature sought to codify the burden of proof required to prevail in an action against a business establishment for a slip-and-fall involving a foreign, transitory object. The Owens court recognized that a foreign, transitory object—such as the infamous banana peel or a puddle of water—is an inherently dangerous condition from which an unknowing business patron should be protected. Historically, Florida case law required plaintiffs to show that a business had actual or constructive knowledge of a dangerous condition, and, as a result, several theories arose aimed at establishing that a business had, or was imputed, the requisite knowledge. One of these theories focused on a business’s manner of operation, which was utilized to show that the way in which the business operated was negligent and resulted in the creation of a dangerous or unsafe condition. This theory effectively eliminated the need to establish knowledge that a specific substance was present. Recognizing the uncertainty arising from previous decisions attempting to apply the knowledge element in a slip-and-fall actions, with those altering or eliminating the knowledge element in favor of the operation theory, the Owens court took the final step and eliminated the requirement of knowledge altogether.

Accordingly, under Owens, once a plaintiff demonstrated that her fall was the result of a foreign substance, a rebuttable presumption of negligence arose, shifting the burden to the property owner to show it exercised reasonable care to keep the premises safe. The Florida Legislature responded to the Owens opinion by passing a bill to codify the burden of proof a plaintiff must meet in a slip-and-fall action. The bill created Section 768.0710, Florida Statues (2002), which provided that a claimant had the burden of proving that: “…[t]he person or entity in possession or control of the business premises acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises. Actual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim. However, evidence of notice or lack of notice offered by any party may be considered together with all of the evidence… .”

In 2010, the legislature undertook its most recent revision, noted above, by passing a bill to repeal the 2002 statute, Section 768.0710, and enact a new statute in its place, Section 768.0755, Florida Statutes (2010). The most obvious difference between the 2002 and 2010 statutes is the re-establishment of the pre-Owens knowledge element. Under this current statutory scheme, a person who slips and falls on a transitory, foreign substance in a business establishment “must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.” The statute further instructs that constructive knowledge may be proven by circumstantial evidence showing that:

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

The condition occurred with regularity and was therefore foreseeable.

Under the 2010 statute, the negligent mode of operation theory was abrogated. The Florida’s Fourth District Court of Appeal directly confronted the issue and provided some insightful precedent in Pembroke Lakes Mall, Ltd. v. McGruder, 137 So. 3d 418 (Fla. 4th DCA 2014). Comparing the language of Florida’s 2002 and 2010 premises liability statutes, the Fourth District noted that the 2002 version allowed a plaintiff to succeed in a slip-and-fall case by showing the business acted negligently in its mode of operation. Proof of actual or constructive notice of a specific condition was not required. The 2010 statute, on the other hand, “does not contain any language regarding the owner’s negligent maintenance, inspection, repair, warning, or mode of operation.” Because the 2010 statute explicitly requires proof of actual or constructive notice and the language regarding mode of operation has been removed, the Fourth District concluded that the same prevailing plaintiff under the 2002 statute would be unable to assert a cause of action based on negligent mode of operation under the 2010 statute.

Legislative staff analysis of the 2010 bill projected that it might affect the outcome of litigation in slip-and-fall suits in a manner more frequently favorable to business establishments than under the 2002 law. This more fact-specific shift, and the recognition that a business’s operation model is most likely inapplicable for establishing liability, potentially apply beyond just the pleading stage. A business can, and should, explore the possibility of demanding fact- or case-specific discovery requests by objecting to inquiries pertaining to, for example, other falls, inspection logs or operations manuals as irrelevant. The legislature also recognized that “business establishment” is not formally defined; likewise, “transitory foreign substances” are not specifically defined, giving counsel on both sides latitude to argue deserving applications or restrictions.

*Tom and Amanda work in our Jacksonville, Florida office. Tom, senior counsel, can be reached at 904.358.4215 or rtroberts@mdwcg.com. Amanda, an associate, can be reached at 904.358.4236 or alingersoll@mdwcg.com.

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_{Defense Digest, Vol. 22, No. 3, September 2016. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}