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VOLUME 9 July 2005 | ||||||
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AN ALTERNATIVE THEORY OF LIABILITY IN SLIP AND FALL CASES By Barbara S. Diamond, Esq. and Scott D. Kirschbaum, Esq. All premises owners owe a duty to their invitees to exercise reasonable care to maintain their premises in a safe condition. Previously, a plaintiff could recover for injuries incurred in a slip and fall accident by showing that the shopkeeper either created a dangerous condition, or had actual or constructive knowledge of a dangerous condition. Notice of a dangerous condition could be established by circumstantial evidence, such as evidence leading to an inference that a substance had been on the floor for a sufficient length of time for it to become known to the shopkeeper in exercising reasonable care. Florida law now recognizes that there is no distinction between a situation where a shopkeeper created a dangerous condition or defect and a situation where the store’s “mode of operation” made it reasonably foreseeable that probable acts of others would create a dangerous condition or defect. Under this “mode of operation” theory, the injured party need not prove that the shopkeeper had either actual or constructive knowledge of a specific condition, rather, the notice requirement is satisfied as a matter of law because the shopkeeper is deemed to be informed of a dangerous condition by virtue of adopting of the method of operation. The “mode of operation” theory was adopted by the Florida Supreme Court in Owens v. Publix Supermarkets, Inc., wherein the supreme court opined that if the evidence established a specific negligent mode of operation such that the shopkeeper could reasonably anticipate that dangerous conditions would arise as a result of this mode of operation, whether the shopkeeper had actual or constructive knowledge of the dangerous condition was not an issue. The dispositive issue was whether the specific method of operation was negligent and whether the accident occurred as a result of that negligence. This theory was upheld by the Florida Supreme Court in the case of Markowitz v. Helen Homes of Kendall Corp. The plaintiff was visiting her mother at a nursing home around the time that lunch hour ended, when she slipped and fell on a grape. The defendant nursing home allowed residents to carry food from the dining room to their rooms after their meals. The nursing home moved for summary judgment, relying on testimony of nurses who denied knowledge of the presence of the grape, and the deposition of the housekeeper, who testified that the nursing home’s policy was that common areas were swept and cleaned several times throughout the day. The plaintiff responded by submitting an affidavit of an expert who had a master’s degree in health care administration and who served as a co-administrator of a nursing home facility. The expert stated that it was not reasonable to allow residents to remove food from the dining area themselves; rather, residents should either eat in the dining room or have their food brought to them by an employee. Allowing the residents to move through the facility with food created an unreasonable hazard that directly caused the plaintiff’s injury, insomuch as elderly people in nursing homes were likely to spill food because of their diminished balance, strength, and equilibrium. The trial court granted the nursing home’s motion, which was affirmed by the Third District Court of Appeal, since the plaintiffs were unable to prove that the nursing home had actual or constructive knowledge of the presence of the grape. However, the Florida Supreme Court rejected the appellate court’s analysis and opined that if the evidence establishes a specific negligent mode of operation such that the premises owner could reasonably anticipate that dangerous conditions would arise as a result of this mode of operation, then whether the owner had actual or constructive knowledge of the specific foreign substance was not the issue. The duty to maintain premises in a safe condition is not limited to detecting dangerous conditions after they occur and then correcting them; the duty to exercise reasonable care extends to taking action to reduce or eliminate foreseeable risks before they manifest themselves as dangerous conditions on the premises. It should be noted that the plaintiff still has the burden of proving that the method of operation was inherently dangerous or the particular operation was negligently conducted and that the hazardous condition was created as a result of the negligent operation. The “mode of operation” theory has been codified by Florida Statute § 768.0710. Florida Statute § 768.0710 states in pertinent part that the claimant shall have the burden of proving that that the 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. |
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