Fla. Trial Lawyers on High Alert
Trial lawyers will be paying close attention to two issues in particular during the legislative session.
When legislators convene this month in Tallahassee, among the most interested observers will be the state’s trial lawyers. Their advocacy group, the Florida Justice Association, will be keeping tabs on numerous issues, but there are two in particular that have the lawyers girding for a fight:
» Slip and Fall. In a 2001 case involving Publix Super Markets in St. Cloud, Evelyn Owen sued after slipping on a piece of banana that had been left on the floor. The case, which went all the way to the Florida Supreme Court, reversed the legal thinking of the time that in order to win the case the woman had to prove the market was negligent in leaving the banana on the floor for an unreasonably long period of time. The court’s decision instead put the burden on the retailer to prove that it was not responsible for leaving the hazard on the floor. In essence, the decision made it easier for plaintiffs to win slip-and-fall cases against retailers.
The Legislature is expected to consider a bill this session that would put the burden back on the shopper to prove that the store was aware of the hazard but failed to address it — a burden that the trial lawyers think is unfair. "Imagine walking down the aisle and boom you’re on the ground —?you break your leg," says Paul Jess, general counsel of the Florida Justice Association. "Your first thought isn’t, ‘Let me gather evidence about how long that grape has been on the floor.’ Your thought is, ‘Help me. Take me to the hospital.’ "
» Child Safety Waivers. The trial lawyers were pleased with the resolution of Kirton v. Fields, a 2008 Florida Supreme Court case ["Making Waives," April 2009, FloridaTrend.com] that found parents, even after signing a waiver, still can’t give up their children’s rights to sue a business. The case involved a 14-year-old boy whose mother sued an Okeechobee motor sports club after her son was killed while trying to drive an ATV. The child’s father had signed a waiver, but the mother still won the case. The decision outraged much of the state’s business community, from the operators of youth sports leagues and motocross tracks to the state’s theme park industry, including Walt Disney Co. Legislation has been introduced this session to reverse it. The businesses argue that without waivers they can’t afford the risk of allowing children to participate in potentially risky activities, while the lawyers argue that the waivers take away a business’s incentive to ensure a safe environment for children.