Retroactive Application of Florida’s Slip-and-Fall Statute

Until recently, only one appellate court in Florida had decided whether Florida’s new slip-and-fall statute should be applied retroactively — the 3rd District Court of Appeal. But now another appellate court has weighed in, but on the opposite side.

In Pembroke Lakes Mall Ltd. v. McGruder, Florida’s 4th District Court of Appeal recently certified its conflict with the 3rd DCA’s Kenz decision (which held Fla. Stat. §768.0755 was a procedural change and should be applied retrospectively) for resolution by the Florida Supreme Court. This decision is effective immediately and applies to all pending cases in the 4th DCA, unless and until the 4th DCA elects to reconsider the case, which is not likely.

As background, the old statute — section 768.0710(2)(b) —  provided in pertinent part: “[a]ctual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim.”

The more recent statute — section 768.0755(1) — abrogated the old statute and added a requirement that the “injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.”

In the 3rd DCA, which includes Miami-Dade and Monroe counties, trial courts must follow Kenz, and in the 4th DCA which covers Broward and Palm Beach counties, trial courts must now follow McGruder.

Importantly, to preserve the argument that the new statute should be applied retroactively in its application regarding matters pending in the 4th DCA trial courts, defendants will need to inform the trial court that while the current law as set forth in McGruder now controls, defendant believes the Kenz court was correct, and request that if the trial court makes a ruling on dismissal or summary judgment using McGruder, it should be without prejudice to an expected motion for reconsideration, should the Florida Supreme Court eventually resolve the pending conflict by approving Kenz (and quashing McGruder).

In all other appellate courts throughout Florida, trial courts are free to follow either Kenz or McGruder decision until their respective DCA issues an opinion on the issue, or the Florida Supreme Court resolves the conflict.