The notice rule under section 768.0755 makes the prima facie case. Document the scene before the floor gets mopped.
Call 904-383-7448Reviewed by Graham W. Syfert, Esq., Florida Bar No. 39104. Last updated .
Florida slip and fall cases against a business turn on one statute: section 768.0755, Florida Statutes. To recover, the injured business invitee must prove the business had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge is proved by circumstantial evidence — the condition existed long enough that it should have been discovered, or it occurred with such regularity that it was foreseeable.
That notice requirement is what makes slip and fall cases harder than the rest of negligence law. Defendants routinely move for summary judgment under Rule 1.510 on the ground the plaintiff cannot show how long the spill was on the floor. The plaintiff who photographs the spill, identifies witnesses, and demands the surveillance footage before it overwrites is the plaintiff who survives summary judgment.
The Florida legislature codified the notice rule in 2010 after years of plaintiff-favorable common-law fluctuation. The statute applies to "a transitory foreign substance in a business establishment" and requires the plaintiff to prove:
(1) The business had actual knowledge of the dangerous condition (rare in practice), or
(2) The condition existed for such a length of time that, in the exercise of ordinary care, the business should have known of the condition, or
(3) The condition occurred with regularity and was therefore foreseeable.
Most cases run on constructive knowledge under prong (2). The evidence is circumstantial: melted ice cream that has begun to spread; tracked-in water that has dried at the edges; a banana peel with visible footprints. Each of those tells a jury the substance was on the floor long enough for the business to have discovered it. The absence of such evidence — a clear puddle with no temporal indicia — is fatal to most slip and fall claims.
Premises evidence disappears fast. Stores mop, replace floor mats, restock displays, and rotate surveillance footage. The investigation that matters most happens in the first 72 hours.
Photograph the substance from multiple angles before anyone touches it. Photograph the surrounding area — adjacent floor mats, signage, the source of the spill (a leaking cooler, an overhead pipe, a customer who dropped a drink). Photograph the shoes and clothing of the injured person.
Most retail stores run cameras that overwrite in 7 to 30 days. The litigation hold letter must specifically demand preservation of camera footage covering the spill area for the hour before and after the fall. Spoliation of preserved evidence is sanctionable under Florida law and creates an adverse inference at trial.
Get the name and phone number of every customer and employee who witnessed the fall or the condition before the fall. Independent witnesses are gold. A defendant's employee who saw the spill earlier and didn't address it is the case.
Ask the store manager for an incident report. The manager will often complete one regardless. The report is a contemporaneous record that locks in the time, location, and the manager's initial knowledge — sometimes admissions about prior similar incidents leak into them.
Florida common law sorts visitors into three categories with three different duties owed by the property owner:
Business invitee — someone on the premises for mutual benefit (a paying customer, a delivery driver). Owed the highest duty: maintain the premises in a reasonably safe condition and warn of latent dangers known or knowable through reasonable inspection. Section 768.0755 applies.
Licensee — someone on the premises with permission but for their own benefit (a social guest at a residence). Owed a duty to warn of concealed dangers known to the owner. The owner has no affirmative duty to inspect for dangers.
Trespasser — someone on the premises without permission. Owed only the duty to refrain from willful or wanton harm.
The status determines the standard. In Jacksonville, a customer at Publix is a business invitee; a friend at someone's house is a licensee; a person in a private backyard without permission is a trespasser. The same fall produces different cases depending on status.
Open and obvious. The defense will argue the condition was open and obvious — visible to anyone exercising reasonable care for their own safety. Open-and-obvious does not bar the claim outright, but it shifts more fault to the plaintiff. The 2023 amendment of section 768.81 imposed a 51 percent bar: a plaintiff more than 50 percent at fault recovers nothing. Open-and-obvious arguments routinely push plaintiffs over that threshold.
Lack of notice. The most common defense. The defendant claims it had no actual knowledge and the condition had not been there long enough for constructive knowledge. The plaintiff's only response is direct circumstantial evidence of duration.
Mode of operation. Florida courts have largely rejected the mode-of-operation theory (negligence inferred from the type of business) after the 2010 statute. Some pre-statute cases still apply by analogy in narrow circumstances, but the general rule is that the plaintiff must show notice of the specific condition.
Apportionment to third parties. Under the Fabre rule, the defendant can argue another party (the customer who spilled, a vendor who failed to clean) was at fault. Fault apportioned to a non-party reduces the plaintiff's recovery without that party being on the verdict form.
Most Florida slip and fall cases involve back, neck, hip, knee, or wrist injuries. Soft-tissue injuries settle in the four-figure to five-figure range. Surgical cases — fractured hip in an elderly fall, herniated discs requiring fusion — can reach six figures and beyond, depending on permanency and economic damages.
HB 837 changed Florida medical damages calculation. Under amended section 768.0427, medical damages are now bounded by what was actually paid by insurance plus what remains owed, not the gross billed amount. The change affects valuation significantly in cases with substantial medical bills paid by Medicare, Medicaid, or commercial insurance at reduced rates.
Pain and suffering, loss of enjoyment of life, and mental anguish remain recoverable. The 51 percent bar cuts hard — a 60 percent plaintiff recovers zero. Settlement valuation has to account for the apportionment risk.
Send the litigation hold letter within 24 to 72 hours of the fall. Specify the surveillance footage from the camera covering the fall site for the hour before and after, the store's daily inspection logs, prior incident reports for the same store and similar conditions, and any vendor or maintenance records for the spilled substance's source.
Get the floor-care contractor identified. Many large retailers outsource floor cleaning to a third party. If the contractor breached its sweep schedule, the contractor is a defendant. Pull the contract.
Document the plaintiff's compliance with her own safety. Defendants will argue she was on her phone, was wearing inappropriate shoes, was running, or wasn't paying attention. Photographs of the shoes, statements from witnesses about what she was doing, and the surveillance footage itself either help or hurt — find out which early.
Watch the two-year SOL. Section 95.11(4)(a) dropped negligence to two years for claims accruing on or after March 24, 2023. Slip and falls accruing before that date kept the four-year period.
Section 768.0755 requires actual or constructive knowledge of the dangerous condition. Constructive knowledge is proved by evidence the condition existed long enough that it should have been discovered, or that the condition occurred with regularity.
Harder than most negligence cases because of the notice rule. Cases with strong duration evidence, prior incidents, or inadequate inspection regimes are far stronger than the typical clear-spill case.
Photographs of the condition before cleanup, witness identification, the incident report, and a litigation hold letter demanding preservation of surveillance footage within the overwrite window (usually 7 to 30 days).
Residential premises cases are governed by common-law premises liability, not section 768.0755. Social guests are typically licensees, owed a duty to warn of known concealed dangers. Homeowners insurance is typically the source of recovery.
Two years for claims accruing on or after March 24, 2023, under section 95.11(4)(a).
Surveillance footage overwrites fast. Call before the evidence is gone.
Call: 904-383-7448