Legislation shifting the burden of proof from retailer to plaintiff in slip-and-fall cases overwhelmingly passed the House Thursday and took a step toward passage in the Senate.
Proponents of the legislation say their bills shift Florida’s law back to where it was before 2001. In that year, the Florida Supreme Court ruled in Owens vs. Publix that the burden of proof in such tort cases was on retailers. The next year, lawmakers adopted legislation that fell in line with the court's ruling.
The bill, introduced by Rep. Gary Aubuchon, R-Cape Coral, passed 110-2.
Sen. Andy Gardiner, R-Orlando, introduced the measure in the Senate. On Thursday, two hours after the House approved the final measure, the bill cleared the Senate Judiciary Committee.
Claim payments for slip-and-fall incidents have increased in Florida since the Owens decision. According to the House, in 2000, slip-and fall-payments consisted of 0.06 percent of all retail revenues in Florida. In 2008, the number rose to 0.12 percent, more than four times the amount of neighboring states.
Proponents of the legislation say that the Supreme Court decision is responsible for the rise of slip-and-fall costs in Florida.
Florida Retail Federation President and CEO Rick McAllister said, “Slip-and-fall cases have been a problem for organizations in Florida since the Owens decision.”
McAllister said studies from companies that do business in states in the region show the differences between expenses in Florida when compared to other states. “Look at the companies that exist in all these states,” he said. “They have the same operation procedures, and they follow the same safety procedures. But, the costs are noticeably higher in Florida.”
Aubuchon said that the bill would benefit Florida businesses. He said, “The cost of defending frivolous slip-and-fall lawsuits in Florida has risen considerably when compared to other states.”
Critics say the measure fails to ensure that retailers preserve evidence in slip-and-fall cases.
An amendment offered by Rep. Adam Fetterman, D-Port St. Lucie, to preserve evidence for a year, failed. So did another amendment from Rep. Audrey Gibson, D-Jacksonville, for businesses to record written records of slip-and-fall incidents for 30 days.
Fetterman, one of the two House members who voted against the measure, said supporters of the bill were making too much of the burden to business to preserve records.
“The flash drive I have on my keys can hold five or six copies of the Encyclopedia Britannica and 16 to 24 hours of video," he said. "Where is the burden to business?”
“We are crafting a statute that creates an overreach,” said Sen. Dan Gelber, D-Miami Beach. “If you want to get rid of all your evidence, you now have license to do so.”
Paul Anderson of the Florida Justice Association said, “This bill is a solution without a problem. Florida law already imposes the burden on the consumer who falls.”
Opponents of the legislation criticize the data being used. Anderson said, “If you look at the data, you will see a flat line when you compare the revenue and the payments due to the increase in revenue.
“After Owens, we shifted part of the burden proof,” said Sen. Joe Negron, R-Stuart, who supports the legislation. “That’s not fair to the defendants.”