Premises liability cases are a common part of most plaintiff’s lawyer’s practices, with slip-and-fall claims typically making up a sizeable number of cases. As a longtime Florida defense attorney, and a mediator of slip-and-fall cases, I have seen several common issues that arise when mediating these kinds of claims and lawsuits. Let’s take a closer look at the mistakes both plaintiff’s and defense lawyers make when mediating slip-and-fall cases, and how to avoid them.
Typically, a slip-and-fall is an umbrella term used for incidents where someone fell and was injured on another person’s property. The plaintiff must prove that the poor condition of the property or a hazard caused him or her to fall and become hurt, and that the owner or possessor of the property knew, or should have known, about the potential danger but did not remediate it.
While slip-and-fall actions can be brought in any state, some states have laws which specifically address this cause of action. That’s the case in Florida, where chapter 768 provides the elements of a slip-and-fall case, including that if someone slips and falls on a “transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.” Florida Statute § 768.0755(1).
That requirement — proving that the business had knowledge of the dangerous condition is one of the challenges you face if you’re representing the plaintiff in a slip-and-fall case. The statute further provides that, “constructive knowledge may be proven by circumstantial evidence showing that: (a) The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or (b) The condition occurred with regularity and was therefore foreseeable.” Florida Statute § 768.0755(1).
This statute was changed a few years ago to place the burden on the plaintiff to show that the foreign substance was on the floor long enough that the property owner should have known about it. However, it can be a Catch-22. That is, if the claimant claims says, before I fell, I saw tracks or footprints in the foreign substance on the ground,” the defense can argue that the claimant should have seen the foreign substance and avoided it— that it was “open and obvious”.
More recently, Florida law changed, holding that if a plaintiff is 51 percent or more at fault, he or she cannot recover anything.
I’ve handled hundreds of slip-and-fall cases as an attorney and as a mediator, and see lawyers make some of the same mistakes when mediating them. One common mistake I see frequently is the parties not being prepared. The lawyer hasn’t prepared his or her client, or the lawyer has oversold the case to the client. If a claimant is told that their case is worth $500,000 but the actual value of the case is truly $100,000, it will be harder to settle the case at mediation.
If you’re a plaintiff’s attorney, part of preparing your client for the mediation is making sure your client knows what to expect, and what the defense may say during the mediation. On the defense side, this may be easier because the insurance adjuster knows what to expect as the adjuster has probably handled hundreds of these cases before.
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