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John Feris, Jr. v. Club Country of Fort Walton Beach, Inc., et al., Case No. 1D12-4633 (1st DCA)

In Feris, the plaintiff sued the defendant country club after slipping and falling while at the country club. The plaintiff alleged, among other things, that the country club allowed a slipper substance, possibly containing alcohol, to remain on the premises, that the country club failed to warn the plaintiff of the condition, and that the country club knew or should have known of the dangerous condition because the country club permits patrons to take drinks onto the dance floor in area in which the slip and fall occurred. Applying Florida Statutes, Section 768,0710, the trial court entered summary judgment in favor of the defense, finding that the statute required some evidence of negligence by failing to exercise reasonable care in the maintenance, inspection, repair, warning or mode of operation of the business premises, and no such evidence appeared in the record.

The Feris court first addressed the change in the slip and fall statutes. As the court notes, the Florida statute governing slip and falls changed effective July 1, 2010, approximately one month prior to the plaintiff filing his compliant. Florida Statute768.0710 (2009) was in effect at the time of the incident, whereas Florida Statute768.0755 (2010) was in effect when the complaint was filed. As the court notes, however, “under either statute, to survive a motion for summary judgment a plaintiff must show sufficient facts, taken as true, to create a genuine issue of material fact that the party in control of the premises owed a duty of reasonable care to the plaintiff; that the defendant breached the duty of care (and had actual or constructive knowledge of the existence of the breach or dangerous condition when moving under section 768.0755); and that the defendant’s breach was the legal cause of the plaintiff’s injuries or damages.”

The appellate court found that the record contained deposition testimony indicating that patrons in the dance room where the fall occurred routinely took drinks onto the dance floor, which commonly results in spills, that the fall occurred near a speaker where patrons customarily put their drinks, and that the spot where the fall occurred was wet, among other things. The court, therefore, concluded that the deposition testimony presented circumstantial evidence from which a jury could infer that the country club or its agents allowed or caused a dangerous condition to exist. The court further elaborated that such evidence could permit a jury to find negligence under section 768.0710, and in addition, it could permit a jury to find constructive knowledge of the dangerous condition under section 768.0755. Therefore, the appellate court found that the plaintiff had met his burden under either statute.

The Feris court nonetheless addressed whether section 768.0755 applied retroactively. The Florida Supreme Court applies a two-pronged test to determine whether a statute applies retroactively: (1) whether the Legislature clearly expressed its intent that the statute have retroactive application; and if so, whether retroactive application would violate any constitutional principles. To be applied retroactively, a statute must pass both parts. The Court noted that the Legislature’s inclusion of an effective date for an amendment is considered to be evidence rebutting intent for retroactive application. The Feris court found no clear evidence of the Legislature’s intent for retroactivity, and thus, ruled that section 768.0755 does not apply retroactively. As a result of this opinion, the First DCA has joined the Fourth DCA in ruling that section 768.0755does not apply retroactively, whereas the Third DCA has ruled the statute applies retroactively.

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