Orlando Slip Fall: Attorney Hearing Prep
A couple of months ago, I was preparing for a hearing in an Orlando slip fall case. The slip and fall occurred in a local grocery store. (Actually my client fell at a Winn-Dixie store in Clermont.) I decided to video tape my practice session before going to court. Although this involves a difficult legal issue, I thought this might give you some idea of the potential complexity of personal injury lawsuits, particularly slip fall cases.
Watch Me In Action Then Read My Motion Reply Below
Normally my blog posts are geared toward helping non-lawyers understand the law, in very basic terms. This post is different. Much of this information will only make sense to other lawyers. But, my video will show you an important part of a slip fall lawyer’s job, which most clients never see. (However, if you have been injured, and need an Orlando personal injury attorney, you must know that MANY Orlando slip fall lawyers never file lawsuits. Although sometimes lawsuits are NOT justified, you need to understand whether there are good reasons if you lawyer isn’t filling because that will reduce the value of moderate to serious injury or accident cases.)
You can either watch the video or read the transcript below. Also, I wasn’t yet dressed and ready for court, so this was a casual day prep.
Watch An Orlando Slip Fall Attorney In Action
Transcript of video:
Hello. This is Tina Willis. I’m an Orlando slip fall attorney. I want to share a practice session for a presentation that I’ll be giving in court today. It will probably be in the judge’s chambers because a lot of things go on behind the scenes that people never see. And I just thought it might give everyone an idea of the complexity that can be involved in slip fall cases that have nothing to do with trial.
Complicated And Technical Florida Slip Fall Arguments
This one is legally complicated and technical. Much of it may be over the head of people who are not lawyers. But, if you listen, it will still give you an idea of the type of work that your Orlando slip fall lawyer needs to do to effectively handle aspects of your case you probably never dreamed existed. For the lawyers, near the end of the video, I share the most amazing aspect of the defendant’s motion.
Does Florida’s Newest Slip Fall Statute Apply To Older Cases?
The issue is whether Florida’s transitory foreign object / slip fall statute should be retroactively applied. Florida’s newest slip fall statute passed in 2010. Unfortunately, it is a much less plaintiff friendly version than the 2002 slip fall statute. To make matters worse, even though the latest slip fall statute passed in 2010, there are some cases in the courts right now where the accident happened before 2010. Let’s say if an accident happened in 2008 or 2009, but for some reason the case is still ongoing. The statute of limitation for those type of cases is four years (there are exceptions, including wrongful death, with a statute of limitations of two years). Also, slip fall cases take time to get through the court system. So, many of those cases are still pending. The issue is whether the new slip fall statute should apply, even though it has many aspects that are more difficult for plaintiffs to establish. I’m going to try to explain the complex parts. But, I probably will get to the point, remember, I’ll be talking to a judge who understands the law, with other lawyers present. There will be no witnesses or lay people in the room during this presentation, so I won’t be speaking to them.
Currently A Certified Conflict Among Florida District Courts Of Appeal
So the issue is this retroactivity of Florida’s slip fall statute. Right now in Florida, there is a certified conflict. There is a case in 2013, Kenz v. Miami Dade County, which was a case where the court found that the slip fall statute should be retroactively applied. Then, in 2014, the 1st and 4th DCAs, which are Florida’s courts of appeal, found that the slip fall statute should not be retroactively applied. That was Pembroke Lakes Mall v. McGruder and Ferris v. Club Country of Ft. Walton Beach.
Procedural Or Substantive Slip Fall Statute?
The first issue is whether the slip fall statute is procedural or substantive. Procedural statutes are retroactively applied. That includes something called burden of proof statutes. Burden of proof suggests the level of proof that a plaintiff will need to convince a jury that they have established their claim. So, if Florida’s slip fall statute is a procedural (including burden of proof) statute, then it would be retroactiely applied. The Kenz court concluded that this was a procedural, burden of proof statute. That was the basis of their holding that this statute should be retroactively applied.
Does Florida’s Slip Fall Statute Involve The Burden Of Proof?
One thing I have found, I searched and searched to figure out why the Kenz court believed this was a procedural statute. I discovered a footnote, footnote one, they referred to a big Florida Supreme Court case, called Owens, which was an opinion in 2001, where Owens said they were creating a rebuttable presumption in slip fall cases. Without explaining what a rebuttable presumption is, they were creating if the plaintiff demonstrated that the plaintiff slipped and fell on a transitory object, the burden would shift to the defendant to show that they had exercised reasonable care. That’s called a rebuttable presumption because it is a presumption, the presumption is that the defendant was unreasonable unless they can establish evidence otherwise. That is a burden of proof issue.
Owens Said The Rebuttable Presumption Is A Burden Of Proof Issue
So, Owens said that this rebuttable presumption is a burden of proof issue. They even cited a statute in Florida, saying that rebuttable presumptions are presumptions affecting the burden of proof. For that reason, the Kenz court decided, this is a rebuttable presumption burden of proof, so it should be retroactively applied. The problem with that analysis is that Owens created the rebuttable presumption in 2001. In 2002, the legislature passed Florida’s then most current slip fall statute. The 2002 version of the statute was passed. That was 768.0710. They removed that rebuttable presumption. The legislature got rid of it. It was removed entirely from Florida’s slip fall statute.
2002 Slip Fall Statute Removed The Rebuttable Presumption!
Then, again, Florida’s legislature passed a new slip fall statute in 2010. But that rebuttable presumption from Owens was long gone. It had been long gone since 2002. The 2010 slip fall statute has absolutely nothing to do with the burden of proof. It does not relate to the rebuttable presumption. It doesn’t mention it. It’s gone. It doesn’t otherwise relate to any burden of proof issue. So, in my strong opinion, that’s the reason Kenz was misguided and therefore erroneous.
2010 Slip Fall Statute Adds Substantive Elements
Just to break down very simply, real quick, the difference between the 2002 and the 2010 slip fall statutes. There are a number of differences, but the key difference, particularly for purposes of this motion is that, in the 2002 slip fall statute, the plaintiff was not required to prove the elements of actual or constructive knowledge. That is the defendant had actual or constructive knowlege of the foreign substance that caused them to slip and fall. However, 2010 statute does require the plaintiff to prove that the defendant had actual or constructive knowledge of the slippery substance that caused them to fall. So, the 2010 slip fall statute added an element that the plaintiff must prove. That’s the reason the statute is substantive.
Florida’s Retroactivity Test
So, when you have a substantive statute, rather than a procedural statute, as we were discussing before, there is a test in Florida. A retroactivity test. It’s a two prong test. The first prong, the first question, is whether the legislature clearly expressed an intent for retroactive application, either in the law itself or, maybe, in the legislative history. If they did not, that is the end of the analysis, we do not retroactively apply a substantive statute. But, if they did, then the next question is whether retroactive application would cause any constitutional problems. So, that’s what our judge needs to consider.
Legislative Intent Regarding Florida’s Slip Fall Statute
Looking first at the legislative intent questions. First of all, the first and fourth DCA, Pembroke Lakes Mall and Ferris v. Club Country, both considered that question, and concluded there was no express legislative intent, regarding retroactive application. Additionally, there is a rule that says, when the legislative includes an effective date in the language of the statute, that is evidence rebutting their intent to retroactively apply the statute. Indeed, our statute has an effective date of July 1, 2010. Also, I’ve reviewed all of the legislative history, including even listening to the legislative history hearing tapes. I’ve also, of course, read the law. There is no indication anywhere in the legislative history, or the law itself, for retroactive application. Absolutely no mention of it. Therefore, we believe it is very clear that there was no legislative intent for retroactive application, and that should be the end of the analysis. The end. The statute should not be retroactively applied.
Constitutional Problems With Retroactive Application?
However, in the off chance that the judge doesn’t agree with us, and for some reason thinks that there may have been legislative intent for retroactive applications, the next question he would need to ask is whether there are any constitutional problems with retroactive application of this law. And there are. Retroactive application of the statute would violate the plaintiffs constitutional rights by impairing her vested property interest in what had been a previously viable cause of action. In other words, she had a lawsuit before that she could pursue, and she had a property interest protected by the constitution. She’s entitled to due process, and other constitutional protections, before that’s taken away. Well, if she can’t establish actual or constructive knowledge under the new statute, then that cause of action would be abolished.
Legally Similar Case Gives Guidance
This is very similar to another Florida Supreme Court case. We look to prior cases and the facts to make analogies and make arguments. This is similar to a previous case, American Optical v. Spiewalk, a 2011 Florida Supreme Court case, where the Florida Supreme Court refused to retroactively apply an asbestos statute because the newer version of the statute required the plaintiff to prove certain physical manifestations of his or her disease that they would not have been required to prove in the prior version of the statute. So the Supreme Court concluded that would entirely abolish certain plaintiffs’ causes of action. They believed that was unconstitutional. In that case, there had been clear legislative intent for retroctive application. Despite that clear legislative intent, the Florida Supreme Court said that would be unconstitutional. We have exactly the same issue here. Without proof of actual or constructive knowledge, any cases would be abolished, if you retroactively applied the statute. So, because this is a substantive statute, not procedural, the lack of legislative intent, and then the constitutional problems, for all of those reasons, we believe the statute definitely should not be retroactively applied.
The Juicy Part Of This Motion: Unbelievable!
I just want to speak for a minute, and this was what I consider the “juicy” part of this particular motion. It was kind of unbelievable to me. But, in any event, regular people may not quite understand why this was unbelievable. Lawyers certainly will.
How In The World Could The Defendant Not Mention A Certified Conflict?
The defendant filed a motion asking the court to retroctively apply the statute. That’s what the court is going to be deciding. Well, they did not mention, at all, that there was a certified conflict. No mention, at all, of any of the district court of appeal opinions. Instead, they attached twenty-one circuit orders, which is the trial court in Florida. In other words, they didn’t attach the appellate opinions. They attached twenty-one circuit court orders and cited one federal district court opinion for the proposition that the statute should be retroactively applied. All of the cases they cited held that the statute should be retroactively applied.
The Defendant’s Supporting Orders Were 100% Bogus
The problem is, in breaking down those orders, in that case, nineteen of those twenty-one predated Kenz, which was the first district court of appeal opinion. The final two predated the conflict and were unquestionably bound the follow Kenz. In other words, the 2014 version of the statute hadn’t been published yet. So those two had to follow Kenz, as the binding authority at that time in the state. Typically, the defendnat would cite appellate opinions above trial court opinions if they existed. So, it’s just somewhat amazing.
Our Supporting Orders Were Awesome
In constrast to their orders, we have attached thirty-three circuit court orders, finding that the statute should not be retroactively applied. The reasoning and analysis in the defedants’ attached orders themselves, the discussion by the judges, was either non-existent of very sparse. We have attached thirty-three orders, with much more persuasive and lengthy discussions, finding that the statute should not be retroactively applied.
Federal Courts Agreed With Us
Also, we have attached six federal court opinions, in contrast to the defendants’ one. Even though those aren’t binding, they can be persuasive in Florida state courts. Of those six, three criticized the one, which was Yates v. Wal-Mart, the one cited by the defendant, for not applying the retroactivity test, and basically there was no opposition at that time. But the main criticism was that the court did not apply Florida’s retroactivity test.
Bottom Line: This Was Not A Close Call
So, the bottom line is, by far, the greater weight and persuasiveness of authority strongly supports our position. We do not believe this is a close call. Despite the fact that there is a certified conflict, so it might seem like it could go either way, 50/50, when you really analyze the cases and legal issues involved, we do not believe this is a close call at all. We strongly believe this statute should not be retroactively applied.
Is The Negligent Mode Of Operation Theory Still Viable?
A final issue is, if the court does not agree with us, and believes the statute should be retroactively applied, another question becomes whether something called the negligent mode of operation theory is still a viable theory under Florida law. That’s an important question if the statute is retroactively applied because it is one way that the plaintiff wouldn’t have to show this actual or constructive knowledge. So, regarding that issue, I have a couple of points. One, this negligent mode of operation theory existed under the 2002 version of the statute, and was deleted from the 2010 version of the statute. However, subsection two of the 2010 statute, says it does “not affect any common law duty of care.” Also, the legislative history for the statute, says that they intended to return to Florida’s slip and fall law that existed before 2001. Before 2001, the negligent mode of operation theory existed. Additionally, a federal district court, and an 11th circuit opinion, said that the negligent mode of operation theory still exists in Florida because the statute says the plaintiff can still proceed under a common law duty of care. So, we believe the negligent mode of operation theory is still viable. One last point is that even if the negligent mode of operation theory is still viable, retroactive application of this statute would still impair the plaintiff’s vested property rights because, under the 2002 version of the statute, the plaintiff could have relied on some other alternative theories of negligence, including negligent maintenance, inspection, repair or warning. Although those sound similar to the negligent mode of operation, they actually were distinct theories of liability, and those required proof of actual or constructive notice, whereas the negligent mode of operation theory was a little exception, which did not require proof of actual or constructive notice. So, if the statute is retroactively applied, the plaintiff still could not rely on those alternative theories of negligence.
Summary Of Slip Fall Argument
In summary, the bottom line is that we feel this is not a procedural statute, there is no burden of proof issue discussed, this is a substantive statute requiring application of the retroactivity test. There is a two prong test. There is no legislative intent to retroactively apply the statute. That’s the end of the question. Even if that weren’t true, there are constitutional problems. The greater weight of the authority, by far, supports our position. So we hope this court will deny the defendant’s retroactivity motion and rule in our favor. So, that’s about it. I’m set to go to court in a couple of hours. Believe it or not, that was my first run through. I just wrote some notes and did my little practice session and that’s it. I think the judge will rule in our favor. I really do. I wasn’t just saying that was true. I would be concerned if I was the defendant and needing to support this motion. You always try to think of what they might say in response. I’m really not sure in this case. I have a few ideas, but I think they are all weak arguments the defendant could make. So, we hope to be victorious. If we aren’t, then we will proceed on appeal because we feel we are correct on this issue.
I suppose wondering what the judge decided would be a natural reaction to watching this video. The funny thing is, on the morning before the hearing, the defense attorney called to cancel based on alleged schedule conflicts. So we settled this case before the judge ever decided the issue. However, I will always believe that the defense attorney cancelled because he knew we were going to win this motion. There simply was no good reply, which I believe he realized after reading the motion (which you can download below).
Did You Like This Behind The Scenes Presentation?
I hope that gives you some idea the type of work that personal injury lawyers do behind the scenes, which you never see. Or, at least, that is the type of work they should be doing. If you work with a volume firm, they may not even file a lawsuit. But, if you are dealing with someone who provides personalized service and detailed work, that’s the type of thing we’ll be doing behind the scenes on your behalf. I hope you enjoyed the presentation and I will talk to you later. If you enjoyed, please retweet this video showing a Florida slip and fall attorney practicing for court (tweet this).
Want To Learn More About Florida’s Slip Fall Statute?
If you are interesting in learning even more, you might want to read the defendant’s motion and our reply. These are documents the defendant and plaintiff must file before the hearing & oral arguments. Non-lawyers definitely will not understand these arguments. However, if you are looking for an Orlando slip fall attorney, I urge you to download and at least try reading a few pages of the defendant’s motion & our reply below. When drafting these arguments, I needed creativity (there is no book of forms for this type of work), diligence in searching what felt like an endless number of court opinions, careful reading & analysis of the statutes involved, careful review of legislative history (something which many attorneys never include even when relevant), and all sorts of other skills. You need to be sure your lawyer has the “stuff” to effectively make sophisticated arguments of this nature. As a former law professor, top law school graduate (I graduated second in my class of 206), former large defense firm associate, and former writer on many multi-million dollar cases, I take a great deal of pride in crafting sophisticated arguments.
You might also want to read the leading district court opinions, and legislative history:
Ms. Willis handles slip fall cases involving moderate to serious injuries in Orlando, Florida. She will travel further for cases involving very serious or catastrophic injuries.