A typical case: you are walking through a grocery store, a big-box retailer, or a restaurant, and your foot goes out from under you on a puddle, a smear of produce, or a spilled drink. You land on your hip, wrist, or back. An employee helps you up, a manager fills out a form, and you are offered a bottle of water and a coupon. By the time you get home the floor has been mopped, and the video is in the company's control.
Florida has a specific statute for these cases, and it puts the burden on the injured person. The steps below are built around what that statute requires.
1. Report the fall and get the incident report information
Tell a manager before you leave, and ask that an incident report be made. The business may not give you a copy, but get the manager's name, the date and time, and any report or claim number. If you leave without reporting, the business will argue the fall never happened there.
Describe what happened accurately and briefly. Do not speculate about whether you were looking at your phone or hurrying, and do not say you are fine. Shock masks pain, and a "no injury" note in the incident report will be read back to you later.
2. Photograph the substance and the area before it is cleaned
The photos you take in the first few minutes are often the most important evidence in the case. Capture:
- the substance itself, close up and from a distance, showing size, color, and anything in it;
- footprints, cart tracks, or dirt through the substance, which suggest it had been there a while;
- the source, such as a leaking cooler, a roof drip, a display of produce, or a drink station;
- the absence of warning cones or signs;
- the lighting and the floor surface; and
- your shoes and the wet areas on your clothing.
If you cannot take photos because of your injuries, ask a companion or another customer to take them.
3. Find the witnesses, including employees
Get names and phone numbers of anyone who saw the fall or the hazard. Listen carefully to what employees say. A comment such as "I told them about that leak this morning" or "this happens every time it rains" can be critical, because it goes directly to what the statute requires. Write those comments down, word for word, as soon as you can, with the employee's name or description.
4. Demand that the business preserve its video and records
Most stores have cameras covering the aisles and entrances. That video can show when the substance appeared, who walked past it, and whether anyone inspected the area. Many systems overwrite footage on a set schedule, so a written preservation letter should go out immediately. We ask the business to preserve:
- all video of the area for a substantial period before and after the fall, not just the moment of the fall;
- floor inspection, sweep, or walk logs for that day;
- maintenance and repair records for any cooler, roof, or fixture that leaked;
- prior incident reports for the same area or the same condition; and
- the names of employees on duty in that department.
5. Get medical care and keep the records consistent
See a doctor the same day or the next. Falls cause fractured wrists and hips, knee injuries, back and neck injuries, and head injuries that may not show symptoms for hours. Tell each provider exactly how you fell and what hurts. Follow through with referrals and imaging. Unlike a car crash, there is no PIP coverage for a fall in a store, so your health insurance usually pays first, and it may assert a right to be repaid from any recovery.
6. Do not give the store's claims administrator a recorded statement
Large retailers often use a third-party claims administrator that calls within days. The adjuster will ask what you were wearing, what you were looking at, and whether you saw the substance. Those questions are designed to shift fault to you. Decline the recorded statement and refer the adjuster to your lawyer.
The Florida rules that matter
- The transitory substance statute. When a person slips and falls on a "transitory foreign substance in a business establishment," the injured person "must prove" that the business had "actual or constructive knowledge of the dangerous condition" and should have taken action to remedy it (§ 768.0755(1)).
- How constructive knowledge is shown. Circumstantial evidence can show that the condition existed "for such a length of time" that the business should have known of it, or that the condition "occurred with regularity and was therefore foreseeable" (§ 768.0755(1)(a) and (b)). That is why time-stamped video, footprints through the spill, inspection logs, and prior incidents matter so much.
- Other hazards. The statute addresses transitory substances. Falls caused by other conditions, such as broken steps, uneven flooring, missing handrails, or poor lighting, are analyzed under the property owner's general duty of care, which the statute does not change (§ 768.0755(2)).
- Deadline to sue. An action founded on negligence generally must be filed within two years (§ 95.11(5)(a)).
- Comparative fault. Damages are reduced by your share of fault (§ 768.81(2)), and if you are found more than 50 percent at fault for your own harm, you "may not recover any damages" (§ 768.81(6)).
- Government property. A fall in a government building or on public property requires a written claim to the agency, and in many cases to the Department of Financial Services, within the time limits in § 768.28(6)(a) before suit.
“transitory foreign substance in a business establishment,”
§ 768.0755(1)
Your checklist
- Report the fall to a manager and get the name and report number.
- Photograph the substance, its source, the area, and your shoes before cleanup.
- Write down the names of witnesses and anything employees said, word for word.
- Have a lawyer send a preservation letter for video, inspection logs, and prior incidents right away.
- See a doctor within a day and describe how you fell.
- Keep the shoes and clothing you were wearing.
- Decline recorded statements to the store's claims administrator.
How we handle these cases
We build slip and fall cases around the knowledge element, because that is where these cases are won or lost. We send preservation demands immediately, request the inspection and maintenance records, and look for the pattern of prior incidents that shows a condition was foreseeable. Josef Timlichman Law, PLLC is a Florida trial firm handling cases throughout the state, including Miami-Dade, Broward, Palm Beach, Tampa, Orlando, and Jacksonville. Meetings are by appointment only. Call 305-748-3789.
This article is general information, not legal advice for your situation. Reading it does not create an attorney-client relationship. Past results do not guarantee a similar outcome.