Citizens Against Lawsuit Abuse of Central Texas

www.news-journalonline.com
July 20, 2010

A grocery clerk was cleaning up spilled milk in the dairy aisle at an Ormond Beach Publix when a woman slipped and fell, injuring her back.

The woman, Jennifer Jones, is among more than 650 people who have filed lawsuits in Volusia County courthouses since 2007 seeking damages for negligence, many for falls they claim could have been prevented.

A new law that went into effect July 1 is intended to make it harder for shoppers to win damages from businesses in "slip-and-fall" lawsuits.

The law, which was signed by Gov. Charlie Crist in April, increases the burden on plaintiffs to prove the business knew, or should have known, the hazard that led to injury existed.

"For those with legitimate claims, it's not going to deny access to the courts," Samantha Hunter Padgett, deputy general counsel for the Florida Retail Federation, said Friday. "But for the cases that move forward, it will change the burden. It returns a little balance."

In recent years, Florida earned a reputation as an easy place to win settlements in slip-and-fall cases.

Local trial lawyers say the change will make it harder for plaintiffs to win damages. But, they add, the law is simply part of the ebb and flow of balance between plaintiffs and defendants in the courtroom.

In 2001, Daytona Beach attorney Chobee Ebbets won an $850,000 jury award for a woman who suffered a head injury in a Walmart when she slipped on spilled Armor All in the automotive aisle.

Wal-Mart Stores Inc. appealed. The verdict was reversed by an appellate court decision that found there was no proof available to address how long the clear, slippery substance was on the floor.

A Florida Supreme Court decision in the case Owens v. Publix found the law at the time created "a great injustice" for plaintiffs. As a result, the high court switched the burden onto businesses to show they couldn't have known the hazard existed.

The tides were turned and it became easier for plaintiffs to win settlements. "We've benefited from that," Ebbets said.

Now, after a lobbying effort on behalf of large retailers because more people were recovering damages, Ebbets said, the new law will make it more difficult for injured people.

Since July 1, those who claim they are injured by falling in a business must prove the business knew and failed to take action.

To prove that knowledge, plaintiffs must show the condition lasted long enough for someone to have known about it. Slippery conditions that occur regularly, like wet floors at the entrance in a rain storm, could be considered foreseeable and lead to damages.

The number of slip-and-fall cases has remained steady in recent years, court officials say, with 32 filed in Volusia County so far this year. The vast majority of those will settle out of court.

Generally speaking, settlements for undisclosed amounts are offered when businesses can't prove they took precautions to prevent the injury.

Going against plaintiffs is the defense argument that the person should have watched where they were going, lawyers say.

"The new law shouldn't change anything," David W. Glasser, an attorney in Daytona Beach said. "Will this weed out people (with frivolous claims)? I don't know. It will be interesting to see what plays out."

Ebbets said it will just make his court fights harder.

"The law is what it is," Ebbets said. "We'll be trying cases in that environment and going back to clever ways of proving our case, like how big did (the spill) spread out, and were there tracks in it?"

In addition to legal challenges, technology has provided another tool for personal injury lawyers and businesses alike.

"I have been successful in several recent slip-and-fall cases because I immediately wrote to preserve the videotape for that area of the store," Ebbets said.

Ebbets declined to discuss the slip-and-fall case he is handling for a woman who suffered a back injury Nov. 14, 2004, at the Publix on West Granada Boulevard in Ormond Beach.

According to court records, Jennifer Jones, 36, needs surgery for a soft tissue injury to her back. The case is likely to focus on actions store workers took -- or didn't take -- to prevent a fall.

Central to that case is a claim that a Publix employee was cleaning the spill when Jones, a mother of three, fell.

"The liquid was still on the floor and there were no warning signs, cones, tape or other devices to prevent a patron from slipping and falling," the complaint says.

According to court records, the case is expected to go to trial in November.

http://www.news-journalonline.com/news/local/east-volusia/2010/07/19/law-may-trip-up-slip-and-fall-lawsuits.html