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Trial & litigation Section
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he slipped on whether it was“ oil, water, or what.” Not only was the Plaintiff unable to identify the substance, but he could not identify how long the substance had been on the floor. There were no footprints, tracks, dirt or any other evidence to suggest how long the substance had been on the floor. Further, even though it was raining, the Plaintiff admitted in his deposition that he could not definitively confirm that rainwater was the cause of the slip.
Florida Statute § 768.0755 states that if 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. Constructive knowledge can be established by demonstrating that: 1. The 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 2. The condition occurred regularly enough that it was foreseeable. The Second DCA agreed that the Plaintiff could not demonstrate the Defendant’ s constructive knowledge of the substance that caused the fall, because the Plaintiff himself did not know what caused the fall. Because it was uncontested that the Plaintiff did not know what substance caused the fall and there was no description of the liquid, there was no way to know if the liquid had existed for such a length of time that the business establishment should have known of the condition. The Court emphasized that Section 768.0755( 1) requires“ actual or constructive knowledge of [ a ] dangerous condition”( not just any condition occurring with regularity). The Plaintiff put forth no evidence of a regularly occurring dangerous condition. Therefore, the court found that the Plaintiff could not demonstrate constructive knowledge under the statute. See § 768.0755( 1). n
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Ausburn v. Wesley Chapel-T, LLC, No. 2D2025-0516( Fla. 2d DCA Sept. 25, 2026).
Author: Amy Currotto – Banker Lopez Gassler
thehcBatrialandLitigationsectionisseeking nominationsforthefollowing2027awards:
• herbertg. goldburgMemorialaward
• jamesh. kynes“ inthetrenches” award
• Michaela. fogarty“ inthetrenches” award
• courtfamilyaward
The deadline to submit your nominations is Thursday, February 11th at 5 p. m. Please submit nominations to Charles Moore at Cmoore @ ForThePeople. com. More information is available at: https:// www. hillsbar. com / page / TriallitAwards.
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