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IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR MANATEE COUNTY, FLORIDA
CIVIL DIVISION
SANDRA WELLS, o 8
iho
Plaintiff, Case #: 11-CA-03 18% BB
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vs. Se w
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CHLN, INC., Sa =
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Defendant. Aon
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DEFENDANT’S AMENDED MOTION SEEKING A DETERMINATION THAT FLORIDA
STATUTE §768.0755 APPLIES TO THE CASE AT BAR
COMES NOW, the Defendant, CHLN, INC., by and through its undersigned legal
| counsel, hereby moves this Court for a determination that the provisions of Florida
Statute §768.0755 apply to establish the Plaintiffs burden of proof in this action and
as grounds in support thereof states the following:
1. Fla. Stat. §768.0755 was effective as of July 1, 2010. The provisions of
the statute alter the burden of proof for plaintiffs in cases arising out of slip and fall
accidents involving transient foreign substances.
2. Defendant, CHLN, INC., contends that the provisions of Fla. Stat.
§768.0755 should be applied retrospectively, as this statute constitutes a procedural
change. Therefore, the previous statute (Fla. Stat. §768.0710) is not applicable to the
case at bar.
3. To date there have been three federal decisions reaching different
conclusions as to this issue. Mills v. Target Corporation, Lexis 119086 (M.D. Fla.
2010), Kelso v. Big Lots Stores, Inc., 2010 WL 2889882 (M.D.Fla. 2010) and Yates v.
Wal-Mart Stores, Inc., 2010WL4318795 (N.D.Fla.2010).4. More persuasive, however, are the twenty seven (27) trial court Orders
attached hereto in which courts throughout the state of Florida have agreed that Fla.
Stat. §768.0755 has implemented a procedural change, as opposed to altering
substantive rights, and should therefore be applied retroactively. See Orders attached
hereto as composite exhibit “A.”
5. The undersigned is aware of only four instances where a Florida trial
court has refused to apply Fla. Stat. §768.0755 retroactively, three of which occurred
in the Fifteenth Circuit and the remainder in the Seventeenth Circuit. See
Orders attached hereto as composite exhibit “B.”
6. Interestingly, subsequent to the Seventeenth Circuit’s Order entered on
March 11, 2011, denying retroactive application of Fla. Stat. §768.0755 (in the case of
Walker v. Ross Dress For Less, 17‘ Circ. (Broward County) Case No. 09-59107 CACE),
the same court chose to give the statute in question retroactive application on seven
separate occasions. Liung v. Publix Supermarket, 17 Circ. (Broward County) Case
No. 08-60676(04); Robledo v. Publix Supermarket, 17% Circ. (Broward County) Case ,
No. 10-35412(04; Padovani v. Publix Supermarket, 17 Circ. (Broward County) Case
No. 10-48062(13); Fleurantus v. Ross Dress for Less, 17** Circ. (Broward County) Case
No. 10-06877 CACE (25); Holmes v. Magna Entertainment Corp, 17* Circ. (Broward
County) Case No. CACE 11-009891(12); Hall v. Winn Dixie Stores, Inc., 17'» Circ.
(Broward County) Case No. CACE 09-05122004; and Castaneda v. Pines Store Inc,
17% Circ. (Broward County) Case No. 11-02462(05).
7. Defendant respectfully suggests the twenty seven (27) instances in which
Florida trial courts retroactively applied Fla. Stat. §768.0755 were correctly decided
and the four instances in which the court denied retroactive application were
incorrectly decided.Factual Background
8. Plaintiff, Sandra Wells, filed her Complaint on June 7, 2011 asserting a
cause of action against the above listed Defendant for negligence arising out of a
November 27, 2009 slip and fall accident in a Chart House Restaurant.
9. Mrs. Wells claims that she slipped on water on the floor when she walked
into the restroom of the subject restaurant. Mrs. Wells further contends, as a result of
the fall, she is entitled to damages.
10. Defendant, CHLN, INC, denies Mrs. Wells’ claim in its entirety and
contends that it was and is not responsible for her alleged damages because, at all
times material, it exercised reasonable care in its maintenance of the premises, and
was not on notice - actual, constructive, or otherwise - of conditions which allegedly
caused Mrs. Wells’ fall.
Prior Law Governing Burden of Proof in Slip and Fall Cases
ll. Before 2001, Florida courts required that plaintiffs in slip and fall cases
involving transitory foreign substances prove that the owner/possessor of the
premises had actual or constructive knowledge of the dangerous condition. Melkonian
v. Broward County Board of County Commissioners, 844 So.2d 785, 786 (Fla. 4 DCA
2003).
12. In Owens v. Publix Supermarkets, Inc., 802 So.2d 315 (Fla. 2001), the
court altered the burden of proof, reasoning that “once the plaintiff establishes that he
or she fell as a result of that transitory foreign substance, the burden shifts to the
defendant” to show that it exercised reasonable care. Melkonian, 844 So.2d at 786.13. The former statute, Fla. Stat. §768.0710, took effect on May 30, 2002,
again altering a plaintiffs burden of proof in slip and fall cases arising from transitory
foreign objects/substances, stating:
the Claimant shall have the burden of proving that...the person or
entity in possession of... premises owed a duty to Claimant,” and
they “acted negligently by failing to exercise reasonable care...”
“Actual or constructive notice of the transitory foreign object or
substance is not a required element of proof of this claim.
However, evidence of notice or lack of notice offered by any
party may be considered together with all evidence;”
(Emphasis added).
The Current Law - Fla. Stat. §768.0755
14. On July 1, 2010, Fla. Stat. §768.0755 became effective which provides as
follows:
(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
foreseeable.
15. Fla. Stat. §768.0755 did not alter the duties of Defendants or limit the
rights of Plaintiffs. Prior to its enactment, a Plaintiff had the duty to show that a
Defendant failed to use reasonable care in a slip and fall action. The duty to use
reasonable care could be violated in the event a business owner failed to remedy (or
warn of) a dangerous condition, i.e. a transitory substance, which he or she knew, or
should have known of. As such, prior to the enactment of Fla. Stat. §768.0755,evidence of actual or constructive notice could be the deciding factor in a slip and fall
case.
16. Therefore, Fla. Stat. §768.0755 merely changes the burden of proof
associated with the already relevant issue of notice.
17. | Absent legislative intent to the contrary, substantive laws are to be given
prospective effect while procedural laws may be applied retrospectively. Young v.
Altenhaus, 472 So.2d 1152 (Fla. 1985).
18. Substantive law prescribes duties and rights and procedural law
prescribes the means and methods to apply and enforce the duties and rights. Alamo
Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352 (Fla. 1994).
19. “Burdens of proof clearly concern the means and methods to apply and
enforce duties and rights” and are therefore procedural in nature. Shaps v. Provident
Life and Accident Insurance Company, 826 So.2d 250 (Fla. 2002).
20. Therefore, because Fla. Stat. §768.0755 implements a change concerning
the Plaintiffs burdens of proof, it is procedural in nature, and may be applied
retroactively.
MEMORANDUM OF LAW / ARGUMENT
The issue for the court’s determination is whether the provisions of Fla. Stat.
§768.0755 apply retrospectively and, therefore, applies to this case which was pending
on the date that statute became effective. Six different Florida trial courts have
recognized on twenty seven (27) different occasions that Fla. Stat. §768.0755’s change
to a Plaintiff's burden of proof was a procedural change, and therefore, this statute
may be applied retro-actively. To the undersigned’s knowledge, the only Florida state
trial courts which have denied retroactive application of Fla. Stat. §768.0755, the
Fifteenth and Seventeenth Circuits, have relied on Federal Court decisions in theirrulings. The two Federal Court Opinions in question are Kelso v. Big Lots Stores, Inc.,
2010 WL 2889882 (M.D. Fla. 2010) and Mills v. Target Corporation, Lexis 119086
(M.D. Fla. 2010).
Mills was decided prior to Kelso and stated that because Fla. Stat. §768.0755
“affects substantive rights or creates new obligations or liabilities,” it should only be
applied prospectively. Kelso, then followed the logic in Mills and came to the same
conclusion. This reasoning, however, is misguided.
Prior to the enactment of Fla. Stat. §768.0755, a business owner had the duty
to use reasonable care in the operation of its premises. This included properly
maintaining its business premises and warning of any dangers which were known, or
should have been known. Converse of this duty, is the right of a business invitee to
reasonably safety inside a business premises, which includes the right to be warned of
any dangers which were known, or should have been known, by said business. Herein
lay the duties and rights at issue.
Although Fla. Stat. §768.0755’s predecessor, Fla. Stat. §768.0710, made it clear
that evidence of notice was not required to be shown by a Plaintiff, a Defendant could
nevertheless introduce evidence demonstrating an absence of notice to refute
negligence (i.e. “However, evidence of notice or lack of notice offered by any party may
be considered together with all evidence.” Fla. Stat. §768.0710). While Fla. Stat.
§768.0755 altered the pleading requirements in a slip and fall action, the substantive
duties and rights in question remained the same. A Defendant must use reasonable
care in its maintenance of its business premises and a Plaintiff has a right to
reasonably safety as a business invitee. The above referenced Federal opinions,
therefore, mistook a change in the applicable burden of proof for a change in
substantive rights. Perhaps the Middle District reached its conclusion by consideringfederal jurisprudence when analyzing whether the statutory change to the burden of
proof under the new statute amounts to a procedural or substantive change. After all,
federal courts have considered this issue when dealing with changes to the Federal
Rules of Criminal Procedure, often finding that such changes are substantive changes
which should be applied only prospectively. See Hicks v. U.S. 146 F.3d Appx. 396
{11 Cir. 2005), 2005 WL 2077736 (a change to the burden of proof made by the
Fed.R.Crim.P. was substantive, and accordingly would not apply retrospectively).
The Northern District of Florida, however, has recognized that under Florida law
a change in the burden of proof applied to a case concerns the method by which
duties and rights are applied and enforced, and are therefore procedural in nature.
Yates v. Wal-Mart Stores, Inc., 2010WL4318795 (N.D.Fla.2010); Walker & La Berge
Inc. v. Halligan, 344 So.2d 239, 243 (Fla. 1977). The Ninth, Tenth, Eleventh,
Thirteenth, Seventeenth, and Eighteenth Circuit Courts of Florida have all subscribed
to this line of reasoning. See exhibit “A.”
Clearly, the crux of Defendant’s argument is rather simple as it need only rely
on the definition ‘procedural law,’ i.e. one that prescribes the means and methods to
apply and enforce the duties and rights. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d
1352 (Fla. 1994). It is well settled that in Florida “[b]urdens of proof clearly concern
the means and methods to apply and enforce duties and rights” in a case, Shaps v.
Provident Life and Accident Insurance Company, 826 So.2d 250 (Fla. 2002). Therefore,
it follows that generally, changes in burdens of proof are procedural in nature. Worth
noting is the rule that whenever possible, procedural legislation should be applied to
pending cases in order to fully effectuate the legislations intended purpose. Arrow Air
v. Walsh, 645 So.2d 422 (Fla. 1994). Accordingly, Fla. Stat. §768.0755 should be
applied to the case at bar.WHEREFORE, given the foregoing arguments and authorities, Fla. Stat.
§768.0755 should be applied retrospectively, and this Court should determine that the
burden of proof and other provisions of Fla. Stat. §768.0755 should be applied in this
action.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was mailed
to: Tomas Gacio, Esq., Abrahamson & Uiterwyk, 900 West Platt Street, Tampa, FL
33606 on this _20"*_ day of April, 2012.
HIGHTOWER & PARTNERS
200 Central Avenue, Ste. 450
St. Petersburg, FL 33701
(727) 209-1373 - Telephone
(727) 209-1383 - Fax
u
HELM, ESO.
X BAR NO.: 066729
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IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR MANATEE COUNTY, FLORIDA CIVIL DIVISION SANDRA WELLS, o 8 iho Plaintiff, Case #: 11-CA-03 18% BB a = =O c Nm eQ vs. Se w aS 2 CHLN, INC., Sa = Se © Defendant. Aon / Rh DEFENDANT’S AMENDED MOTION SEEKING A DETERMINATION THAT FLORIDA STATUTE §768.0755 APPLIES TO THE CASE AT BAR COMES NOW, the Defendant, CHLN, INC., by and through its undersigned legal | counsel, hereby moves this Court for a determination that the provisions of Florida Statute §768.0755 apply to establish the Plaintiffs burden of proof in this action and as grounds in support thereof states the following: 1. Fla. Stat. §768.0755 was effective as of July 1, 2010. The provisions of the statute alter the burden of proof for plaintiffs in cases arising out of slip and fall accidents involving transient foreign substances. 2. Defendant, CHLN, INC., contends that the provisions of Fla. Stat. §768.0755 should be applied retrospectively, as this statute constitutes a procedural change. Therefore, the previous statute (Fla. Stat. §768.0710) is not applicable to the case at bar. 3. To date there have been three federal decisions reaching different conclusions as to this issue. Mills v. Target Corporation, Lexis 119086 (M.D. Fla. 2010), Kelso v. Big Lots Stores, Inc., 2010 WL 2889882 (M.D.Fla. 2010) and Yates v. Wal-Mart Stores, Inc., 2010WL4318795 (N.D.Fla.2010).4. More persuasive, however, are the twenty seven (27) trial court Orders attached hereto in which courts throughout the state of Florida have agreed that Fla. Stat. §768.0755 has implemented a procedural change, as opposed to altering substantive rights, and should therefore be applied retroactively. See Orders attached hereto as composite exhibit “A.” 5. The undersigned is aware of only four instances where a Florida trial court has refused to apply Fla. Stat. §768.0755 retroactively, three of which occurred in the Fifteenth Circuit and the remainder in the Seventeenth Circuit. See Orders attached hereto as composite exhibit “B.” 6. Interestingly, subsequent to the Seventeenth Circuit’s Order entered on March 11, 2011, denying retroactive application of Fla. Stat. §768.0755 (in the case of Walker v. Ross Dress For Less, 17‘ Circ. (Broward County) Case No. 09-59107 CACE), the same court chose to give the statute in question retroactive application on seven separate occasions. Liung v. Publix Supermarket, 17 Circ. (Broward County) Case No. 08-60676(04); Robledo v. Publix Supermarket, 17% Circ. (Broward County) Case , No. 10-35412(04; Padovani v. Publix Supermarket, 17 Circ. (Broward County) Case No. 10-48062(13); Fleurantus v. Ross Dress for Less, 17** Circ. (Broward County) Case No. 10-06877 CACE (25); Holmes v. Magna Entertainment Corp, 17* Circ. (Broward County) Case No. CACE 11-009891(12); Hall v. Winn Dixie Stores, Inc., 17'» Circ. (Broward County) Case No. CACE 09-05122004; and Castaneda v. Pines Store Inc, 17% Circ. (Broward County) Case No. 11-02462(05). 7. Defendant respectfully suggests the twenty seven (27) instances in which Florida trial courts retroactively applied Fla. Stat. §768.0755 were correctly decided and the four instances in which the court denied retroactive application were incorrectly decided.Factual Background 8. Plaintiff, Sandra Wells, filed her Complaint on June 7, 2011 asserting a cause of action against the above listed Defendant for negligence arising out of a November 27, 2009 slip and fall accident in a Chart House Restaurant. 9. Mrs. Wells claims that she slipped on water on the floor when she walked into the restroom of the subject restaurant. Mrs. Wells further contends, as a result of the fall, she is entitled to damages. 10. Defendant, CHLN, INC, denies Mrs. Wells’ claim in its entirety and contends that it was and is not responsible for her alleged damages because, at all times material, it exercised reasonable care in its maintenance of the premises, and was not on notice - actual, constructive, or otherwise - of conditions which allegedly caused Mrs. Wells’ fall. Prior Law Governing Burden of Proof in Slip and Fall Cases ll. Before 2001, Florida courts required that plaintiffs in slip and fall cases involving transitory foreign substances prove that the owner/possessor of the premises had actual or constructive knowledge of the dangerous condition. Melkonian v. Broward County Board of County Commissioners, 844 So.2d 785, 786 (Fla. 4 DCA 2003). 12. In Owens v. Publix Supermarkets, Inc., 802 So.2d 315 (Fla. 2001), the court altered the burden of proof, reasoning that “once the plaintiff establishes that he or she fell as a result of that transitory foreign substance, the burden shifts to the defendant” to show that it exercised reasonable care. Melkonian, 844 So.2d at 786.13. The former statute, Fla. Stat. §768.0710, took effect on May 30, 2002, again altering a plaintiffs burden of proof in slip and fall cases arising from transitory foreign objects/substances, stating: the Claimant shall have the burden of proving that...the person or entity in possession of... premises owed a duty to Claimant,” and they “acted negligently by failing to exercise reasonable care...” “Actual or constructive notice of the transitory foreign object or substance is not a required element of proof of this claim. However, evidence of notice or lack of notice offered by any party may be considered together with all evidence;” (Emphasis added). The Current Law - Fla. Stat. §768.0755 14. On July 1, 2010, Fla. Stat. §768.0755 became effective which provides as follows: (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 foreseeable. 15. Fla. Stat. §768.0755 did not alter the duties of Defendants or limit the rights of Plaintiffs. Prior to its enactment, a Plaintiff had the duty to show that a Defendant failed to use reasonable care in a slip and fall action. The duty to use reasonable care could be violated in the event a business owner failed to remedy (or warn of) a dangerous condition, i.e. a transitory substance, which he or she knew, or should have known of. As such, prior to the enactment of Fla. Stat. §768.0755,evidence of actual or constructive notice could be the deciding factor in a slip and fall case. 16. Therefore, Fla. Stat. §768.0755 merely changes the burden of proof associated with the already relevant issue of notice. 17. | Absent legislative intent to the contrary, substantive laws are to be given prospective effect while procedural laws may be applied retrospectively. Young v. Altenhaus, 472 So.2d 1152 (Fla. 1985). 18. Substantive law prescribes duties and rights and procedural law prescribes the means and methods to apply and enforce the duties and rights. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352 (Fla. 1994). 19. “Burdens of proof clearly concern the means and methods to apply and enforce duties and rights” and are therefore procedural in nature. Shaps v. Provident Life and Accident Insurance Company, 826 So.2d 250 (Fla. 2002). 20. Therefore, because Fla. Stat. §768.0755 implements a change concerning the Plaintiffs burdens of proof, it is procedural in nature, and may be applied retroactively. MEMORANDUM OF LAW / ARGUMENT The issue for the court’s determination is whether the provisions of Fla. Stat. §768.0755 apply retrospectively and, therefore, applies to this case which was pending on the date that statute became effective. Six different Florida trial courts have recognized on twenty seven (27) different occasions that Fla. Stat. §768.0755’s change to a Plaintiff's burden of proof was a procedural change, and therefore, this statute may be applied retro-actively. To the undersigned’s knowledge, the only Florida state trial courts which have denied retroactive application of Fla. Stat. §768.0755, the Fifteenth and Seventeenth Circuits, have relied on Federal Court decisions in theirrulings. The two Federal Court Opinions in question are Kelso v. Big Lots Stores, Inc., 2010 WL 2889882 (M.D. Fla. 2010) and Mills v. Target Corporation, Lexis 119086 (M.D. Fla. 2010). Mills was decided prior to Kelso and stated that because Fla. Stat. §768.0755 “affects substantive rights or creates new obligations or liabilities,” it should only be applied prospectively. Kelso, then followed the logic in Mills and came to the same conclusion. This reasoning, however, is misguided. Prior to the enactment of Fla. Stat. §768.0755, a business owner had the duty to use reasonable care in the operation of its premises. This included properly maintaining its business premises and warning of any dangers which were known, or should have been known. Converse of this duty, is the right of a business invitee to reasonably safety inside a business premises, which includes the right to be warned of any dangers which were known, or should have been known, by said business. Herein lay the duties and rights at issue. Although Fla. Stat. §768.0755’s predecessor, Fla. Stat. §768.0710, made it clear that evidence of notice was not required to be shown by a Plaintiff, a Defendant could nevertheless introduce evidence demonstrating an absence of notice to refute negligence (i.e. “However, evidence of notice or lack of notice offered by any party may be considered together with all evidence.” Fla. Stat. §768.0710). While Fla. Stat. §768.0755 altered the pleading requirements in a slip and fall action, the substantive duties and rights in question remained the same. A Defendant must use reasonable care in its maintenance of its business premises and a Plaintiff has a right to reasonably safety as a business invitee. The above referenced Federal opinions, therefore, mistook a change in the applicable burden of proof for a change in substantive rights. Perhaps the Middle District reached its conclusion by consideringfederal jurisprudence when analyzing whether the statutory change to the burden of proof under the new statute amounts to a procedural or substantive change. After all, federal courts have considered this issue when dealing with changes to the Federal Rules of Criminal Procedure, often finding that such changes are substantive changes which should be applied only prospectively. See Hicks v. U.S. 146 F.3d Appx. 396 {11 Cir. 2005), 2005 WL 2077736 (a change to the burden of proof made by the Fed.R.Crim.P. was substantive, and accordingly would not apply retrospectively). The Northern District of Florida, however, has recognized that under Florida law a change in the burden of proof applied to a case concerns the method by which duties and rights are applied and enforced, and are therefore procedural in nature. Yates v. Wal-Mart Stores, Inc., 2010WL4318795 (N.D.Fla.2010); Walker & La Berge Inc. v. Halligan, 344 So.2d 239, 243 (Fla. 1977). The Ninth, Tenth, Eleventh, Thirteenth, Seventeenth, and Eighteenth Circuit Courts of Florida have all subscribed to this line of reasoning. See exhibit “A.” Clearly, the crux of Defendant’s argument is rather simple as it need only rely on the definition ‘procedural law,’ i.e. one that prescribes the means and methods to apply and enforce the duties and rights. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352 (Fla. 1994). It is well settled that in Florida “[b]urdens of proof clearly concern the means and methods to apply and enforce duties and rights” in a case, Shaps v. Provident Life and Accident Insurance Company, 826 So.2d 250 (Fla. 2002). Therefore, it follows that generally, changes in burdens of proof are procedural in nature. Worth noting is the rule that whenever possible, procedural legislation should be applied to pending cases in order to fully effectuate the legislations intended purpose. Arrow Air v. Walsh, 645 So.2d 422 (Fla. 1994). Accordingly, Fla. Stat. §768.0755 should be applied to the case at bar.WHEREFORE, given the foregoing arguments and authorities, Fla. Stat. §768.0755 should be applied retrospectively, and this Court should determine that the burden of proof and other provisions of Fla. Stat. §768.0755 should be applied in this action. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was mailed to: Tomas Gacio, Esq., Abrahamson & Uiterwyk, 900 West Platt Street, Tampa, FL 33606 on this _20"*_ day of April, 2012. HIGHTOWER & PARTNERS 200 Central Avenue, Ste. 450 St. Petersburg, FL 33701 (727) 209-1373 - Telephone (727) 209-1383 - Fax u HELM, ESO. X BAR NO.: 066729