In With the New! Florida Appellate Court Finds Florida's Notice Statute

By: Jacey Kaps, CIPP/US, PCIP

05.06.13

An intermediate appellate Court in Florida has ruled that the State’s current statute for premises liability in slip and falls applies to all active cases. The result of this ruling is that Florida Statute §768.0755 is controlling law for a slip and fall incident even if the incident occurred before the July 1, 2010 effective date of the law.

In Carrie Kenz v. Miami-Dade County and Unicco Service Company, Case No. 3D12-571 (opinion filed April 24, 2013), Florida’s Third District Court of Appeal rejected the argument by Ms. Kenz that the current premises liability law did not apply to her May 13, 2008 accident because the effective date of the law is July 1, 2010. Ms. Kenz argued the subject statute does not state a specific intent that it is to be retroactively applied and that absent such language the Statute can only be applied prospectively from the date of enactment.

The Third District Court of Appeal disagreed with Ms. Kenz’ position and affirmed the decision made by the trial court to apply Fla. Stat. §768.0755. The Third District Court of Appeal also affirmed the trial court’s decision to grant summary judgment in favor of the defense on the grounds Ms. Kenz failed to show actual or constructive notice of the presence of the liquid on which she slipped. 

The threshold issue addressed by the Court was whether §768.0755 is a procedural or substantive law. A substantive law prescribes duties and rights, whereas a procedural law regards the means and methods to apply those duties or enforce those rights. This distinction is critical in that substantive laws will not apply retroactively absent legislative intent. However, the Florida Supreme Court has held a procedural law “should be applied to pending cases in order to fully effectuate the legislation’s intended purpose.” Smiley v. State, 966 So. 2d 330, 334 (Fla. 2007).                    

The Third District Court of Appeal held §768.0755 does not add an element to negligence causes of action. Instead, it merely “codifies a means and method by which a plaintiff shows that the defendant-business establishment has breached its duty of care.” The Court reasoned a plaintiff who has an accrued slip and fall claim under the old statute, continues to have the same claim pursuant to §768.0755. The statute does not alter a plaintiff’s vested right in a prima facie case of negligence. Therefore, the Court concluded §768.0755 is procedural and applies retroactively.

So what’s next?  After Kenz, all slip and fall plaintiffs will need evidence of a business establishment’s actual or constructive notice, even if their accidents occurred prior to the statute’s enactment.[1] In cases where notice is suspect, practitioners may want to consider seeking summary judgment and cite to Kenz as supporting authority. Further, the Kenz decision will likely serve as leverage for businesses in settlement negotiations, as it increases a plaintiff’s burden at trial. 



[1] Please note this opinion was filed April 24, 2013. Florida Rule of Appellate Procedure 9.330 provides a Motion for Rehearing “may be filed within 15 days of an order or within such other time set by the court.” Therefore, the deadline for Plaintiff to seek rehearing is on or before May 9, 2013, at which point this decision becomes final.