Does Your Evidence Prove the Store Knew?

If you slipped on a transitory foreign substance in a business establishment, FL § 768.0755 requires you to prove the business had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Actual knowledge means an employee knew — saw the spill, caused it, was told about it. Constructive knowledge may be proven by circumstantial evidence showing either that the condition existed for such a length of time that ordinary care would have discovered it, or that it occurred with regularity and was therefore foreseeable. Since the statute took effect in July 2010, the burden is on the injured person; before that, Florida law put it on the business.

There is no fixed number of minutes. The question under the length-of-time route is whether the condition existed long enough that a business exercising ordinary care would have found it, and it is answered with circumstantial evidence: a spill with dried edges, footprints or cart tracks through it, dirt mixed in, melted ice or wilted produce, an employee who walked past it, a gap in the sweep log, or video showing it sitting there. A fresh, clean spill with no such signs is the defense's best case, which is why the evidence has to be captured before it is mopped up.

FL § 768.0755(1)(b) allows constructive knowledge to be proven by showing the condition occurred with regularity and was therefore foreseeable. A cooler that has leaked for months, an entrance that floods every time it rains, a self-serve drink station that is always wet, prior falls or complaints at the same spot — each shows the business had reason to expect the hazard whether or not anyone saw this particular instance. It is often the easier route, because it is proven from the business's own records rather than from the state of the spill.

No. The statute applies to a slip and fall on a transitory foreign substance — something on the floor — in a business establishment. A defect in the premises itself is decided under the common-law duty of care, which FL § 768.0755(2) expressly preserves. That duty still asks what the owner knew or should have known, but without the statute's specific burden, and the "open and obvious" doctrine is the usual defense.

Ask for it in writing, today, and ask for it to be preserved. A business is under no general duty to keep footage indefinitely, and most retail systems overwrite on a cycle measured in days or weeks. A written preservation demand naming the date, time and location — and covering the period before the fall, not only the fall itself — creates the duty to keep it, and destruction after that demand can be raised with the court. The business is not obliged to hand you a copy on request; it is obliged to keep it once on notice.

A claim against a city, county, state agency or public school is governed by FL § 768.28, which requires a written claim to the agency and the Department of Financial Services before suit, a waiting period for the agency to investigate, and caps on what can be recovered. If the fall was on something on the floor of a government-run business establishment, the notice requirement of FL § 768.0755 applies alongside those rules, not instead of them.

It will be argued. Under FL § 768.81 your recovery is reduced by your percentage of fault, and since 2023 a plaintiff more than 50% at fault in a negligence action recovers nothing. But shoppers are entitled to look at shelves rather than floors, and a clear liquid on a polished floor is the paradigm of a hazard ordinary care would not detect. The comparative-fault argument is strongest where the hazard was open and obvious and weakest where it was not.