State Rep. Rick Kriseman (D-53) is a lawyer with Saunders & Walker PA
Nancy Shopper heads to her favorite grocery store to purchase her groceries for the week. While walking down the aisle in the produce section, Nancy steps on a banana peel, slips and falls down, and injures her right shoulder. She contacts a lawyer to learn what her rights are in this type of case.
Had Nancy fallen in this store prior to the case of OWENS vs. PUBLIX SUPERMARKETS, INC. , (802 So.2d 315(Fla. 2001), she would have been obligated to prove that the store had actual or constructive knowledge of the dangerous condition and that the condition existed for such a length of time that in the “exercise of ordinary care, the premises owner should have known of it and taken action to remedy it”. Constructive knowledge can be established by circumstantial evidence. Under this factual scenario, if the banana Nancy slipped on was black, circumstantial evidence would have suggested that it had been on the floor for a long enough period of time to conclude that the store could have or should have known of its existence and taken action to remedy the condition.
In this instance, Nancy slipped AFTER the Owens decision was rendered. Because of the Court ruling in Owens, Nancy was not required to prove the store had actual or constructive knowledge of the condition. Instead, the burden was shifted to the grocery store, with the Court in Owens holding that the premises owner or operator “had to establish that it exercised reasonable care under the circumstances, eliminating the specific requirement that the customer establish that the store had constructive knowledge of its existence in order for the case to be presented to the jury.” (Owens at 331). The Owens case created a new standard, finding that “the existence of a foreign substance on the floor of a business premises that causes a customer to fall and be injured is not a safe condition, and the existence of that unsafe condition creates a rebuttable presumption that the premises owner did not maintain the premises in a reasonably safe condition”. (Owens at 331).
Because Nancy fell after the Owens decision, the store was presumed to be negligent in allowing the banana to be on its floor, and to rebut that presumption, had to prove that it exercised reasonable care in maintaining its floor under normal circumstances of running its business.
Because of the Owens case, in 2002, the Legislature adopted Florida Statute 768.0710. This statute shifted the burden of proof back to the claimant, but, changed the elements necessary to prove negligence. Under this statute, the claimant was required to prove that the business owed a duty to the claimant, that the business acted negligently by failing to exercise reasonable care, and that the failure to exercise reasonable care was the cause of the loss, injury or damage suffered by the claimant. In showing that the business acted negligently by failing to exercise reasonable care, the claimant does not have to show the business had actual or constructive notice of the object. So while this new statute shifted the burden of proof back to the claimant, doing away with the presumption of negligence, it lessened that burden on the claimant. Had Nancy fallen after the enactment of the 2002 statute, she would have had to prove that the store owed a duty of care to her, that the store failed to exercise reasonable care in maintaining its floors, and that she was injured because of the failure by the store.
Just when you thought the law could not get any more confusing, wait, there’s more. This year, Rep. Dave Murzin has filed HB 495. The effect of this bill is to change the law once again, this time bringing the law BACK to what was in 2001, before the decision of the Florida Supreme Court in Owen.
Whether this bill passes the full house and senate and get’s signed into law by the Governor remains to be seen. For now, the bill has passed its first committee stop, on a vote of 8 to 2. It has 2 more committee/council stops before reaching the floor of the house.

Vito Lopez (D-Brooklyn) says his alternative bill to help victims of sexual abuse levels the playing field by allowing sexual abuse victims to seek justice from both public and private institutions that allowed the abuse to occur. In fact, so does the much better legislation proposed by Rep. Margaret Markey (D-Maspeth). The crucial difference between the two bills is that Markey’s bill would provide a one year window during which sexual abuse victims could pursue justice irrespective of when they were abused. This is important because most of those who’ve been abused aren’t able to come forward about their abuse until many years later, if at all. The Markey legislation takes into account the particular circumstances of the constituency her bill is aimed to serve. It is an undisputed fact that victims of sexual abuse crimes are not able to go public at the time the abuse occurred due to the traumatic nature of the abuse as well as the position of authority the abuser holds. Lopez’ bill doesn’t take this important factor into account. By the way, the Catholic dioceses of New York are vigorously supporting the Lopez version. That should tell you all you need to know.