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Split of Authority Regarding Fla. Stat. § 768.0755

In Kenz v. Miami-Dade Cnty., 116 So. 3d 461, 466 (Fla. 3d DCA 2013), the Plaintiff slipped and fell at the Miami International Airport in July 2009. The Third District Court of Appeal applied Fla. Stat. § 768.0755. (2010) to the case at bar. The statue provides that a ∏ in a transitory foreign substance case must prove that the business establishment had “actual or constructive knowledge of the dangerous condition.” The statute was effective as of July 1, 2010.

The Court found Fla. Stat. § 768.0755 is procedural in nature, and applied retroactively to the ∏’s claim. The Court found the statute did not change a prima facie case for a negligence claim, but rather, the cause of action continued to exist. The Court deemed the actual or constructive knowledge element of the statue was “not new” as it concerned evidence that the jury must consider in determining whether there was breach of a duty yielding the statute procedural in nature. Kenz v. Miami-Dade Cnty., 116 So. 3d 461, 466 (Fla. 3d DCA 2013).

The Fourth District Court certified conflict with Kenz, and ruled that Fla. Stat. § 768.0755 (2010) should not be applied retroactively, i.e. it must be applied prospectively. In that matter, the ∏ slipped and fell on a water substance in 2008. The Court found that § 768.0755.reinserts the knowledge element into slip and fall claims rendering the statute substantive in nature. Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 426 (Fla. 4th DCA 2014), reh’g denied (Apr. 11, 2014). The Fourth District opined that a cause of action pre-statute change would be eliminated under the new statute. Id, 137 So. 3d 418, 426.

Kenz is the rule of law in the Third District while McGruder will prevail in the Fourth. This split, however, may be rendered moot by the passage of time as only claims filed prior to July 1, 2014 will need to address the substantive versus procedural question applying Fla. Stat. § 768.0755.


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