TORTS: NEGLIGENCE: PREMISES LIABILITY: SLIP AND FALL: SECTION 768.0755, FLORIDA STATUTES, WHICH REQUIRES EVIDENCE OF ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF A TRANSITORY FOREIGN SUBSTANCE, DOES NOT APPLY RETROACTIVELY TO ACCIDENTS THAT OCCURRED BEFORE JULY 1, 2010: EVIDENCE THAT DEFENDANT HAD EXCLUSIVE CONTROL OF PREMISES FROM WHICH PUDDLE OF WATER FLOWED CREATED AN INFERENCE OF NEGLIGENT MAINTENANCE OR MODE OF OPERATION; CIVIL PROCEDURE: SUMMARY JUDGMENT REVERSED: APPEALS: CONFLICT CERTIFIED

Glaze v. Worley, ___ So. 3d ___, 40 Fla. L. Weekly D555 (Fla. 1st DCA March 3, 2015)

While walking with his sister in a mall, a boy slipped and fell in a puddle of water that originated from the defendant’s business establishment. The trial court entered summary judgment for the defendant based upon its lack of actual or constructive knowledge of the presence of the puddle. The appellate court reversed because Section 768.0755, Florida Statutes, which imposes an actual or constructive knowledge requirement in transitory foreign substance cases, may not be applied retroactively before its effective date of July 1, 2010. The First District agreed with the Fourth District that Section 768.0755 created a substantive change in the law because the statute it replaced, Section 768.0710, Florida Statutes, did not require evidence of actual or constructive notice of transitory foreign substances. The First District disagreed, and certified conflict, with the Third District, which held that Section 768.0755 merely created a procedural change in the burden of proof. “[U]nder section 768.0710, Florida Statutes, a plaintiff could succeed in a slip and fall case where he or she could show negligence on the part of the business ‘by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises.’” “Allegations of such active negligence exist[ed] in this case. Because there [was] no evidence that anyone other than [defendant’s] employees [were] allowed on the [side of the door from which the puddle originated], it [could] reasonably be inferred that there was a lack of reasonable care (negligence) on the part of [the defendant] in either the maintenance of the premises or in the mode of operation of the business which allowed the water to flow into the common area. Under such circumstances, summary judgment is inappropriate.” Judge Benton concurred in Judge Wolf’s majority opinion, and Judge Makar concurred and specially concurred in a written opinion.

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