39 Fla. L. Weekly D922a
substance on dance floor of defendant country club — Trial court erred in
entering summary judgment for defendant where there was testimony that patrons
routinely took drinks onto dance floor, which commonly resulted in spills on
dance floor — Such testimony would be a valid basis upon which jury could find
that defendant acted negligently by failing to exercise reasonable care in the
maintenance, inspection, repair, warning, or mode of operation of the business
premises, and that defendant had constructive knowledge based on the dangerous
condition’s existence for a length of time, or that this condition existed with
such regularity that defendant knew or reasonably should have known of its
existence — Holding does not require court to decide retroactive application of
section 768.0755, Florida Statutes, which requires that plaintiff who slips and
falls on transitory foreign substance must prove that defendant had actual or
constructive knowledge of the dangerous condition, but court notes that there is
no clear evidence of legislative intent for retroactivity
d/b/a THE BLOCK AND FOUNDERS INSURANCE COMPANY, d/b/a, PROSURE INSURANCE
COMPANY, Appellees. 1st District. Case No. 1D12-4633. Opinion filed April 30,
2014. An appeal from the Circuit Court for Okaloosa County. William F. Stone,
Judge. Counsel: Charles F. Beall, Jr. of Moore, Hill & Westmoreland, P.A.,
Pensacola, for Appellant. Michael W. Kehoe of Fuller, Johnson, Kehoe, Horky
& Rettig, LLC, Pensacola, for Appellees.
final summary judgment on count I of his complaint which asserted a
slip-and-fall cause of action against Club Country of Fort Walton Beach, Inc.
(Club Country), pursuant to section 768.0710, Florida Statutes (2009). As
explained below, because there are genuine issues of material fact that preclude
summary judgment, we reverse and remand for further proceedings consistent with
Factual and Procedural Background
Country’s premises, Club Country negligently maintained the premises by allowing
a slippery substance, possibly containing alcohol, to remain on the premises;
that Club Country failed to warn him of the condition; that he slipped and fell
in the slippery substance; that Club Country knew or should have known of the
dangerous condition because it permits patrons to take drinks onto the dance
floor in the area in which he slipped and fell; that Club Country caused or
created this condition, or knew or should have known of the condition because it
existed long enough for Club Country to have discovered it; and that he suffered
bodily and other injury as a direct and proximate result of Club Country’s
negligence.1 Club Country responded with
an answer and affirmative defenses.
768.0755, Florida Statutes (2010), requires a plaintiff to establish the
defendant’s knowledge of the dangerous condition. Further, Club Country asserts
that, while constructive knowledge may be established by showing that the
condition existed for such a length of time that the defendant should have known
of the condition through the exercise of ordinary care, here there was no
evidence as to how long the slippery substance leading to Feris’ fall had been
on the floor at Club Country’s premises.
for summary judgment, including depositions from himself, Laura Sandy, and
Darius Parker. In his deposition, Feris testified that Sandy and Shannon
Schillaci saw him fall, at which time they were standing on the dance floor with
drinks in hand. He further testified that, while Club Country had a policy
against allowing drinks on the dance floor, the policy was ignored and Club
Country staff were present when the fall occurred and it was obvious that people
had drinks on the dance floor. Feris also stated that the first time he noticed
the substance on the floor was after he had fallen; that after he fell, the
substance on which he slipped was on his clothing and smelled of alcohol; that
he did not have a drink with him when he fell on the dance floor; and that he
had no idea how the substance got on the dance floor or how long it had been
there prior to the fall.
believed it had to have been on something based on the way he fell. Further, as
soon as Feris was helped off the dance floor, a Club Country employee went to
the location where Feris fell and wiped the area. Sandy stated that she did not
see anyone spill a drink on the floor where Feris slipped, but remembered that
“everyone” had drinks on the floor that night. She added that she had seen many
people spill drinks on the dance floor on other occasions and that she was not
sure if Club Country had a policy about drinks on the dance floor, but, if such
a policy exists, it is not enforced and there is no signage in the room
indicating a policy.
the floor where the accident occurred was wet. He stated that the accident
occurred near an audio speaker and that patrons often placed their drinks on the
speakers. Further, he testified that he had seen people with drinks on the dance
floor and people spill their drinks on the dance floor. Parker stated that he
had no idea how long the spill existed or how it was caused, and that he did not
know if Club Country had a drink policy or if any signs notifying of such policy
were in the dance room.
summary judgment, arguing that section 768.0710 applied to the case and that the
statute did not require him to prove Club Country’s actual or constructive
knowledge of the dangerous condition. At the hearing on the motion for summary
judgment, Club Country argued that there was no evidence as to how long the
substance was on the floor, therefore Feris could not create a reasonable
inference from which the jury could conclude that Club Country created or
allowed a dangerous condition to exist. Feris contended that he had offered
testimony that, if Club Country had a policy prohibiting drinks on the dance
floor, the policy was not enforced in the room where the accident occurred,
which at least created a question of fact on that issue.
“some evidence of negligence by failing to exercise reasonable care in the
maintenance, inspection, repair, warning or mode of operation of the business
premises,” and that no such evidence appeared in the record. Based on that
reasoning, the trial court pronounced summary judgment in favor of Club Country,
which was followed by a written order to that effect. Feris filed a motion for
rehearing, which the trial court denied. This appeal ensued.
novo. Ramsey v. Home Depot U.S.A., Inc., 124 So. 3d 415, 416 (Fla. 1st
DCA 2013). “Summary judgment should be entered only when there is no genuine
issue of any material fact, and even the slightest doubt as to the existence of
such a question precludes summary judgment.” Id. at 416-17 (quoting
Laidlaw v. Krystal Co., 53 So. 3d 1128, 1129 (Fla. 1st DCA 2011)).
Feris’ cause of action accrued, a plaintiff must plead and prove the following
(a) The person or entity in possession or control of the business
premises owed a duty to the claimant;
(b) The person or entity in possession or control of the business
premises acted negligently by failing to exercise reasonable care in the
maintenance, inspection, repair, warning, or mode of operation of the business
premises. Actual or constructive notice of the transitory foreign object or
substance is not a required element of proof to this claim. However, evidence of
notice or lack of notice offered by any party may be considered together with
all of the evidence; and
(c) The failure to exercise reasonable care was a legal cause of the
loss, injury, or damage.
2010, approximately a month before Feris filed his complaint, provides that:
(1) If a person 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. 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
(2) This section does not affect any common-law duty of care owed by
a person or entity in possession or control of a business premises.
plaintiff must show sufficient facts, taken as true, to create a genuine issue
of material fact that the party in control of the premises owed a duty of
reasonable care to the plaintiff; that the defendant breached the duty of care
(and had actual or constructive knowledge of the existence of the breach or
dangerous condition when moving under section 768.0755); and that the
defendant’s breach was the legal cause of the plaintiff’s injuries or damages.
trigger a duty of reasonable care on Club Country’s part towards him. Food
Lion, LLC v. Monument/Julington Assoc. Ltd. Partnership, 939 So. 2d 1106,
1107-08 (Fla. 1st DCA 2006) (“A landowner owes a business invitee a duty not
only to react to hazards of which it has notice but also to inspect to ensure
conditions are safe or, at the least, that hazards (unless open and obvious) are
discovered and warned against.”). Club Country’s primary contention is that
Feris has offered no evidence as to its knowledge or notice of the existence of
the transitory substance on the dance floor that created a dangerous condition.
Indeed, the trial court predicated its entry of summary judgment in Club
Country’s favor on this perceived lack of evidence as to Club Country’s
knowledge or notice. In other words, the trial court found that Feris had failed
to present sufficient evidence to create a genuine issue of material fact on the
question of Club Country’s breach of its duty of care.
substance that caused Feris’ accident came to be on the dance floor, each
deponent testified that patrons in the dance room where the fall occurred
routinely took drinks onto the dance floor, which commonly resulted in spills on
the dance floor. Additionally, both Feris and Sandy testified that Sandy and her
friend were on the floor with their drinks when Feris’ accident occurred.
Further, Parker testified that Feris’ fall took place near a speaker, and that
patrons customarily put their drinks on the speakers. Finally, Feris and Parker
each stated that the spot where Feris fell was wet, and Feris testified that
after the fall his jeans were wet with a substance that smelled like alcohol.
circumstantial evidence from which a jury could infer that Club Country or its
agents allowed or caused a dangerous condition to exist, or that this condition
existed with such regularity that Club Country knew or reasonably should have
known of its existence. If, as the deposition testimony reflects, it was normal
for patrons to take and spill drinks on the dance floor in the room where the
fall occurred, it could logically be inferred that such was done with either
Club Country’s allowance or actual knowledge. Similarly, if drinks were
typically taken and spilled on the dance floor, one could reasonably deduce that
Club Country would have discovered the presence of drinks and the attendant
spills through the exercise of ordinary care in inspecting the premises.
Therefore, the testimonial evidence presented here would be a valid basis upon
which a jury could find that Club Country “acted negligently by failing to
exercise reasonable care in the maintenance, inspection, repair, warning, or
mode of operation of the business premises.” § 768.0710. Furthermore, this
evidence could form the basis of a jury’s charging Club Country with
constructive knowledge based on the dangerous condition’s existence “for a
length of time that, in the exercise of ordinary care, the business
establishment should have known of the condition; or [that] [t]he condition
occurred with regularity and was therefore foreseeable.” § 768.0755.
Accordingly, under either statute, Feris has met his burden of pleading and
offering sufficient evidence as to the breach of duty element of a Florida
transitory substance/premises liability claim in order to survive a motion for
dispositive of the issue at bar. Nevertheless, we observe that:
The Florida Supreme Court has adopted a two-pronged test for
determining whether a statute may apply retroactively: a reviewing court must
ascertain (1) whether the Legislature clearly expressed its intent that the
statute have retroactive application; and if so, (2) whether retroactive
application would violate any constitutional principles.
Port Cove Holdings, Inc. v. Old Port Cove Condo. Ass’n One, 986 So. 2d 1279,
1284 (Fla. 2008)). “The statute must pass both parts of this test to be applied
retroactively.” Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc., 88 So. 3d
269, 279 (Fla. 1st DCA 2012).2 See
also Fla. Ins. Guar. Ass’n, Inc. v. Devon Neighborhood Ass’n, Inc.,
67 So. 3d 187, 194, 196 (Fla. 2011) (“Our precedent makes abundantly clear that
in determining the question of retroactivity of a legislative enactment, the
court must apply the two-prong test — beginning with a search for clear
evidence of legislative intent for retroactivity. . . .”).
clear legislative intent exists for retroactive application of a new statute. In
its search for legislative intent, the Court referenced the language of the new
statute, the effective date of the new statute, and the effective dates of
related statutory amendments within other sections contained in the same
chapter. Id. at 196. The Court noted that “the Legislature’s inclusion of
an effective date for an amendment is considered to be evidence rebutting intent
for retroactive application of a law,” but provided that “ ‘clearly expressed’
legislative intent for retroactive application,” may supersede the presumption
against retroactive application raised by inclusion of an effective date.
Id. (citations omitted). Finally, the Court observed that courts may
apply statutory construction of the “language, structure, purpose, and
legislative history of the enactment” to determine if a statute is intended to
be retroactive. Id. at 196-97 (citations omitted).
as to the Legislature’s intent on retroactive application. See Ch.
2010-8, §§ 1-3 Laws of Fla. Section 1 of chapter 2010-8 provides the language of
the new statute; section 2 provides that section 768.0710 is repealed; and
section 3 provides that the new statute shall take effect July 1, 2010.
Id. The summary appearing before the enacting clause mirrors the language
of the three sections, but makes no mention of legislative intent for or against
retroactive application. Id. There are no other statutory amendments in
chapter 2010-8. Id. At the very least, the circumstances here do not
establish “clear evidence of legislative intent for retroactivity,” which is
required under the first prong of the retroactivity test. See Devon
Neighborhood, 67 So. 3d at 196.
proceedings in accordance with this opinion. (WOLF and MARSTILLER, JJ., CONCUR.)
asserted a contract claim against Club Country’s insurer; only the tort claim
against Club Country is before us on this appeal.
So. 3d 461 (Fla. 3d DCA 2013), the Third District reviewed whether the trial
court erred by granting summary judgment for the defendant county based on the
court’s retroactive application of section 768.0755, instead of the older
section 768.0710. Kenz, 116 So. 3d at 462. The Kenz court did not
apply the first prong of the two-part test for retroactivity, but confined its
analysis solely to “whether the statute sought to be applied retroactively is
substantive in nature, or procedural/remedial in nature.” Kenz held that
substantive changes require clear legislative intent for retroactive
application, but “a procedural/remedial statute ‘should be applied to pending
cases in order to fully effectuate the legislation’s intended purpose.’ ”
Id. at 463-64 (quoting Smiley v. State, 966 So. 2d 330, 334 (Fla.
* * *