February 22, 2017

Generally, a person injured in a slip and fall must prove that the landowner either knew or should have known that there was a dangerous condition on the property that caused the person to fall. 

In Encarnacion v. Lifemark Hospitals of Florida, 42 Fla. L. Weekly D304a (February 1, 2017), Carmen Encarnacion went to Palmetto General Hospital to help her mother who was in the emergency room after suffering a stroke.  Ms. Encarnacion and her mother had been waiting for 5 hours to get admitted to the hospital, and so she went to find a nurse to find out what was taking so long.  She left the room they were in and saw an Emergency Medical Services (EMS) paramedic cleaning a stretcher with a spray bottle.  When she attempted to walk through this area, she slipped and fell, and she guessed that it was due to the liquid in the spray bottle that she fell. 

Ms. Encarnacion sued the hospital for her injuries.  She argued that there were no warning signs and that there was no warning that the floor was wet.  She said that the substance on the floor was oily, dark, and smelled like a cleaning product, but she was unable to say how long it was on the ground. 

The hospital asked the Court to dismiss the suit by filing a Motion for Summary Judgement, claiming that there was no evidence the hospital knew or should have known about the substance on the floor.  Further, the hospital employed a cleaning service that always had at least 2 cleaners in the emergency room to make sure it was safe and clean.  The trial court granted the motion to dismiss by the hospital.

Ms. Encarnacion appealed, and the appellate court agreed with the trial court’s dismissal of the lawsuit.  The appellate court first noted that dismissal by a Motion for Summary Judgment is only appropriate if there are no genuine issues of material fact.  Next, the court noted that under Florida’s law on premises liability for transitory foreign substances for businesses, “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.”  Fla. Stat. 768.0755.  Further, the law says that constructive knowledge can be proven by 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.”  Fla. Stat. 768.0755. 

The appellate court reasoned that there was no evidence that the hospital knew about the substance on the floor that caused Ms. Encarnacion to fall.  Because there was no actual knowledge by the hospital of the substance on the floor, Ms. Encarnacion had to prove that the hospital should have known about the substance on the floor.  The big problem for Ms. Encarnacion was that she was not able to show how long the substance had been on the floor before she fell on it.  As you might imagine, knowing how long it had been on the floor was important to showing whether or not the hospital should have known about the substance on the floor.  The appellate court noted that it appeared that it was possible that the substance was going on the floor around the same time that Ms. Encarnacion fell on the substance.  If that was the case, the hospital obviously had no opportunity to know about the substance on the floor or take any action to warn people or clean it up.  Further, the person responsible for the substance on the floor, the EMT, was not a hospital employee, so the hospital was not responsible for the EMT’s actions.

For these reasons, the appellate court affirmed the trial court’s dismissal of the lawsuit. 

This case illustrates the complexity involved in slip and fall cases, and the importance of having an experienced personal injury attorney who will thoroughly investigate and make all of the required arguments.  If you or a loved one has suffered from a slip and fall injury, please contact an experienced personal injury trial attorney to discuss your options.