The trial court granted Summary Judgment in a slip fall case applying Fla. Stat. § 768.0755 (2010). The First DCA reversed finding Fla. Stat. § 768.0755 (2010) did not apply retroactively. The Court also found that Appellant’s affidavit and deposition testimony filed in opposition provided a reasonable inference that that the source of the water came from an area exclusively controlled by the Appellee.
The First DCA sought to reconcile its ruling in Feris v. Club Country of Fort Walton Beach, Inc., 138 So. 3d 531, 536 (Fla. 1st DCA 2014) wherein it reversed a Summary Judgment on behalf of the property owner with Walker v. Winn–Dixie Stores, Inc., 39 Fla. L. Weekly D1750 (Fla. 1st DCA Aug.20, 2014) wherein the Court affirmed a Summary Judgment on behalf of the property owner. The Court noted that evidence of “active” negligence in causing the condition which led to each slip and fall respectively was the “crucial distinction” between Feris and Walker.
The First DCA certified conflict with the Third DCA that earlier found § 768.0755 could be applied retroactively in Kenz v. Miami–Dade County, 116 So.3d 461 (Fla. 3d DCA 2013) The Fourth DCA also certified conflict when it found that the statue could not have a retroactive application. Pembroke Lakes Mall Ltd. v. McGruder, 137 So.3d 418 (Fla. 4th DCA 2014). Thus, two District Courts have ruled that the statute may not be applied retroactively while one District Court has ruled that it may be applied retroactively. The Second and Fourth have not yet addressed the issue in an appellate context.