First DCA Reinforces Plaintiff's Burden in Constructive Knowledge Cases Involving Transitory Foreign Substances

10.21.14 | Permalink

Posted By: J. David Marsey

October 2014

First DCA Reinforces Plaintiff’s Burden in Constructive Knowledge Cases Involving Transitory Foreign Substances

by J. David Marsey

In August 2014, the First District Court of Appeal interpreted a recently enacted statute that requires plaintiffs to prove actual or constructive knowledge of the presence of a transitory foreign substance before being held liable for plaintiff’s injuries sustained in a fall. In affirming the trial court’s entry of summary judgment for the store, the Court recognized that the duty to act to mitigate a potential danger is triggered by the actual or constructive notice of the presence of a foreign substance, not simply the possibility that it might become present.

In this case, the plaintiff attempted to hold a retail grocery store liable for her injuries when she fell as a result of what she called “unnoticeable drops of water.” The plaintiff was returning to the store from the parking lot to return an electric shopping cart for the mobility impaired. After dropping off the cart, she slipped and fell within feet of her destination and suffered personal injury. She argued that the store had constructive knowledge of the dangerous condition because it occurred with such frequency and that it was negligent for failing to install warning cones or rainy-weather mats in the affected area.

Record evidence established that store personnel inspected the area within four minutes of the fall and that, according to plaintiff’s own testimony, it started “misting” outside approximately one minute before. Although there were some factual disputes about exactly when the rain started, the store’s response to the anticipated rain and whether there was water on the floor that caused her fall, the Court held plaintiff to her burden to introduce evidence to establish by a preponderance of evidence that the store knew or should have known of the water on its floor. The Court reasoned that employees’ recognition that it was about to rain was insufficient to trigger a duty to initiate the protective measures utilized during actual rain.

This case is important because it signals the First District’s intent to hold plaintiffs to their burden and recognizes the legislative intent to impute liability to defendants only when they unreasonably fail to use ordinary care to discover dangerous conditions created by transitory foreign substances. Retail stores should diligently and frequently inspect their premises for hazards to take advantage of the statutory protections.

David Marsey is a former officer, investigator, training officer and prosecutor and is an attorney in the firm’s Tallahassee office. He defends and advises corporations, government entities and their employees throughout the state.


Rumberger, Kirk & Caldwell provides litigation and counseling services in a wide range of civil practice areas including product liability, commercial litigation, construction,  real estate, intellectual property litigation, securities litigation, bankruptcy,  labor and employment law, insurance coverage, professional liability and administrative law. Offices are located in Orlando, Tampa, Miami, Tallahassee and Birmingham, Alabama. For more information, please visit

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Must Medical Treaters Be Paid for Their Testimony?

10.31.13 | Permalink

Posted By: Michael L. Forte

"Must Medical Treaters Be Paid for Their Testimony?" was originally published in the Florida Defense Lawyers Association Trial Advocate Quarterly, Fall 2013 (Volume 32, #4).

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Protecting Licensees Against Claims of Negligent Security

08.01.13 | Permalink

Posted By: Laura A. Stuzin and Stephen K. Talpins

One party generally is not responsible for the intentional torts or criminal acts of another. However, the rule is not absolute. Proprietors must maintain their premises in a reasonably safe condition and make “every reasonable effort” to maintain order among those who patronize their business. Borda v. East Coast Entertainment, 950 So. 2d 488 (Fla. 4th DCA 2007). Thus, establishments have a duty to exercise reasonable care to protect their patrons against reasonably foreseeable criminal conduct.

This exception poses a special danger peculiar to Florida licensees. Florida is a “comparative fault state;” courts generally apportion damages according to each party’s percentage of fault. However, in cases where one patron injures another during or after a reasonably foreseeable criminal act, the owner of the premises may be held legally responsible for a claimant’s damages. Merrill Crossings Associates v. McDonald, 705 So. 2d 560 (Fla. 1997). In this article, we explore the basic principles underlying claims for negligent security and the different options available to licensees to be proactive and protect their businesses.

General Liability for Negligence Security
Licensees may be held liable for failing to exercise reasonable care to protect their patrons against reasonably foreseeable criminal conduct. Foresee ability may be established by proving a proprietor had actual or constructive knowledge of (1) a particular assailant’s inclination toward violence; or (2) the “dangerous condition” of the premises. Hall v. Billy Jack’s, Inc., 458 So. 2d 760 (Fla. 1984). A plaintiff may prove that a “dangerous condition” existed either by showing that there was a “likelihood” of disorderly conduct that might endanger the safety of patrons or that security staffing was “inadequate.” Key factors include local crime rates, prior incidents (including calls to law enforcement), the crime’s location (whether it occurred on the premises, next to the premises, or close to the premises), the type of crime, the specific circumstances of the crime, and whether security measures could have deterred the crime.

In the case of Allen v. Babrab, 438 So. 2d 356 (Fla. 1983), an intoxicated male patron assaulted a woman in an club’s parking lot after she rebuffed his advances. The establishment had a history of fighting and disorderly conduct by its patrons. Thus, in the past the club had employed security personnel to maintain security on their premises. However, on the night of the incident with Plaintiff, no security was present even though the club recognized that there was a likelihood of disorderly conduct by third persons. The court held that establishments have a duty to protect patrons from foreseeable harms and found that the establishment was negligent and liable for the incident because it failed to address a known danger.

Minimizing Risk and Exposure
Licensees can protect themselves from liability and minimize exposure by being proactive.   Some of the actions they make take include :

  • Identifying who is responsible for security in their leases
  • Drafting and implementing policies that set out the licensees practices for:
    •  Hiring and retention
    •  Crime reporting
    •  Maintenance
    •  Safety
    • Security
    • Alcohol and drugs
  • Familiarizing managers with local crime statistics
  • Maintaining the premises
    • Ensure appropriate lighting
    • Prevent overgrown landscaping that may provide criminals with cover to hide
    • Installing walls or fences if appropriate
  • Recordkeeping
  • Documenting and tracking incidents
  • Maintaining appropriate staff
  • Hiring security if necessary
  • Discouraging overconsumption or over-service
  • Removing customers in appropriate cases
  • Contacting the police for backup when necessary

Investigation and Defense
Accidents happen and many patrons are quick to file claims or suits, irrespective of their validity. Unfortunately, patrons typically have between two and four years to file their suits. During that time, memories fade, employees switch jobs, and evidence disappears. This makes it very difficult for establishments to defend themselves. Thus, it is important that licensees investigate all incidents as quickly as possible and document their findings by taking written or stenographic statements of witnesses and taking photographs or video if possible. In cases involving significant injuries or death, licensees may want to contact counsel early on to confirm that all bases are covered.

Of course, it is virtually impossible to eliminate risk entirely, particularly in our extremely litigious society. In December 2011, a Texas woman sued a bar when she was raped by two police officers after leaving a local club. She claimed that the establishment was responsible because employees served her alcohol until she became intoxicated, continued serving her even after she became visibly drunk, and then allowed her to leave the club when she posed a clear danger to herself and others. While we are skeptical that a similar suit could be successfully prosecuted in Florida since it is unforeseeable that police officers would rape anyone, it serves as a great reminder of how important it is for licensees to be aware of their potential liability and obtain and maintain insurance coverage. 

We live in an imperfect and litigious world fraught with risk, both seen and unseen. Businesses are cautioned to protect themselves as much as they reasonably can against all such dange

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Recent Updates

10.21.14  First DCA Reinforces Plaintiff's Burden in Constructive Knowledge Cases Involving Transitory Foreign Substances  Read Article >>

10.31.13  Must Medical Treaters Be Paid for Their Testimony?  Read Article >>

08.01.13  Protecting Licensees Against Claims of Negligent Security  Read Article >>

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