Alternative Means for Proving Constructive Knowledge in Slip and Fall Cases

Generally, when we think of proving constructive knowledge in Florida for a slip-and-fall case, we think that we have to follow the statute 768.0755 and prove it in one of two ways:

(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.

However, when analyzing the wording of the statute more carefully, it says that it may be proved in these ways, but does not say must. Therefore, there may be other ways to prove constructive knowledge, even if the facts of your case do not show the above conditions have been met.

For example, in a recent case, our client slipped on a puddle of spilled perfume in a department store. The spill and resulting slip were captured on the store’s surveillance camera showing only a four-minute gap between the two occurrences. The Defendant moved for Summary Judgment, arguing that because the slip occurred only four minutes after the spill, and the Plaintiff did not show that the condition occurred with regularity, the Plaintiff did not prove constructive knowledge.

However, when examining the video more carefully, between the time of the spill and the time of the slip the assistant store manager walks only a few feet from the spill. Not only that, another employee walks directly over it. Our argument was that the employees should have seen the spill if they were being diligent in performing their duties, and the fact that they did not imputed negligence upon the store.

In support of our theory, we cited the Florida Supreme Court’s ruling in Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256 (Fla. 2002). In Markowitz, a lady slipped on a grape while visiting her mother in a nursing home and was injured. Id. at 257. Three of the nursing home’s employees were engaged in a conversation in the immediate vicinity of the fall. Id. The nursing home moved for summary judgment contending that there was no actual knowledge or constructive notice of the grape. Id. The trial court granted the motion and the Third District affirmed saying that, “there is no evidence in the record to support the Markowitzes’ contention that because three nurses were in the vicinity of the fall they saw or should have seen the grape.” Id. at 258.

The Florida Supreme Court granted certiorari and reversed, finding that the presence of the three employees in the vicinity of the grape was enough to create a jury question as to whether there was constructive notice, that is, whether the Defendant should have known of the danger. Id. at 261. The court cited two cases of similar rulings to support its decision—Greenleaf v. Amerada Hess Corp. 626 So. 2d 263 (Fla. 4th DCA 1993) and Thoma v. Cracker Barrel Old Country Store, 649 So. 2d 277 (Fla. 1st DCA 1995).

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