State Legislature votes against the consumer…Again.

Modern civilizations have always recognized that storeowners have a duty to provide a safe environment to their customers. From the very beginning, Florida law has required business owners to be accountable when they do not provide safe premises for their customers. One of the most obvious safety infractions occur when walkways and floors are not free of debris or items that can create a hazard for tripping or slipping. In the law, these are known as transitory foreign substances. Transitory foreign substances are defined as any liquid or solid substance, item or object that does not belong on the floor surface of a business.

The failure to protect invitees or patrons from possible injury exposes the business owner to a legal liability and potential lawsuit.  Notwithstanding the recognized duties of the business owner, under Florida law an injured person was still required to prove that the business owner knew of the presence of the transitory foreign substance or should have known of its presence if it could be established that it was there for a sufficient time so as to create constructive knowledge. Additionally, the injured person had the duty to prove that ordinary maintenance could have prevented the condition and that the storeowner could reasonably foresee the likelihood of the occurrence of such substances on floors and walkways.

Yet in 2001 the Florida Supreme Court ruled in the case of Owens v. Publix Supermarkets, that the mere existence of such conditions would create a rebuttable presumption that the business owner failed to maintain the premises in a reasonably safe condition. This consumer friendly ruling recognized the unfairness of burdening a consumer with proving the owner’s knowledge, when the business owner was in a better position to offer evidence of the compliance with standards of maintenance. Thus the Court’s decision relieved plaintiffs of their burden of proof and instead shifted such responsibility to business owners. This clearly established that business owners were responsible for warning the invitee of concealed dangers that are unknown by the invitee and cannot be discovered by the exercise of due care.

The victory for consumers was ultimately superseded by a pro-business/anti-consumer legislature in 2002 with the passage of Florida Statute § 768.0710. This statute shifted the burden off of the business owner and back onto the injured person to prove that the business owner knew or should have known of the presence of the foreign substance. Over the past months Governor Crist and the state legislature have pushed to create an even more business friendly system leaving countless numbers of injured consumers at a great disadvantage.

As of this month, previous progress made in the protection of consumers has been virtually erased. The Supreme Court decision of 2001 has been completely disregarded by the legislature and the old advantages of business owner’s has been restored. In effect, the consumer is now burdened with having to prove, not just that he or she was injured because of the hazard, but that the business owner was in a position to know about its presence and prevent the injury. As such, the duty to provide a safe environment for consumers is conditional.  Today’s pro business environment fails to protect the injured person and allows for little or no accountability on the part of the business owner.