'In With The New!' Florida Appellate Court Finds Florida’s Notice Statute

An intermediate appellate Court in Florida has ruled that the State's current statute for premises liability in slip and falls applies to all active cases. The result of this ruling is that Florida Statute §768.0755 is controlling law for a slip and fall incident even if the incident occurred before the July 1, 2010 effective date of the law.

In Carrie Kenz v. Miami-Dade County and Unicco Service Company, Case No. 3D12-571 (opinion filed April 24, 2013), Florida's Third District Court of Appeal rejected the argument by Ms. Kenz that the current premises liability law did not apply to her May 13, 2008 accident because the effective date of the law is July 1, 2010. Ms. Kenz argued the subject statute does not state a specific intent that it is to be retroactively applied and that absent such language the Statute can only be applied prospectively from the date of enactment.

The Third District Court of Appeal disagreed with Ms. Kenz' position and affirmed the decision made by the trial court to apply Fla. Stat. §768.0755. The Third District Court of Appeal also affirmed the trial court's decision to grant summary judgment in favor of the defense on the grounds Ms. Kenz failed to show actual or constructive notice of the presence of the liquid on which she slipped.

The threshold issue addressed by the Court was whether §768.0755 is a procedural or substantive law. A substantive law prescribes duties and rights, whereas a procedural law regards the means and methods to apply those duties or enforce those rights. This distinction is critical in that substantive laws will not apply retroactively absent legislative intent. However, the Florida Supreme Court has held a procedural law "should be applied to pending cases in order to fully effectuate the legislation's intended purpose." Smiley v. State, 966 So. 2d 330, 334 (Fla. 2007).

The Third District Court of Appeal held §768.0755 does not add an element to...