Bill would put burden of proof in slip-and-fall cases

A bill sailing through the Legislature would force plaintiffs in slip-and-fall lawsuits to prove a business was negligent in order to collect a judgment.

The bill, heavily backed by business interests, passed the state House by a margin of 110-2. The Senate Judiciary Committee also advanced the legislation by a 5-4 vote.

Historically, Florida courts required plaintiffs in slip-and-fall cases to prove the owner of a business knew about a hazard and did nothing about it. The plaintiff could do this either by showing the hazard existed for a long-enough period of time that the business owner should have known about it, or that the condition happened with such regularity that the owner should have foreseen someone would be injured.

But in a 2001 case, Owens v. Publix Supermarkets, the Florida Supreme Court ruled that the existence of a foreign or hazardous substance on a floor indicated the owner did not maintain the premises in a safe condition. In light of that ruling, the Florida Legislature changed the law to shift the burden of proof in such cases to businesses.

"I think this bill puts the burden of proof back where it belongs," said Republican Sen. Joe Negron, chairman of the Judiciary Committee and an attorney in Palm City.

Democratic Sen. Dan Gelber said the bill needs an amendment to require businesses to preserve evidence when they know a fall occurred. That would prevent irresponsible businesses from destroying videos or other evidence if they knew they had been derelict in protecting customers, said Gelber, an attorney from Miami Beach.

But businesses complained such a requirement would be too much of a burden. Negron told Gelber to wait and see what happens after the bill becomes law.

"If we hear over the next year of any retail establishments throwing away Polaroid pictures or throwing away videos, we can address that," Negron said.

Slip-and-fall accidents in bars and restaurants present one of the most common types of liability claims faced by insurers of those businesses, according to a Senate staff analysis of the bill. Supermarkets and grocery stores are also common locations.

Allen Douglas, a lobbyist for the National Federation of Independent Business, said many small businesses confronted with a slip-and-fall law suit will settle, even if they think they were blameless.

"These people truly fear frivolous lawsuits," he said.