The 2010 slip-and-fall statute, §768.0755, Fla. Stat., heightened the burden on Plaintiffs by requiring them to prove “actual or constructive knowledge” of the alleged dangerous condition or transitory foreign substance. Since then, only a few decisions have directly addressed the retroactivity of the statute, and whether the heightened standard applies to accidents that occurred before the 2010 amendment.

For example, in Kenz v. Miami-Dade County, 116 So. 3d 461 (Fla. 3d DCA 2013), the Third District held that the statute could be applied retroactively, finding that §768.0755, Fla. Stat., did not create any new element for a negligence cause of action, but, rather, simply codified the means by which a Plaintiff must prove a Defendant property owner breached its duty of care. In contrast, in Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418 (Fla. 4th DCA 2014), the Fourth District held, contrary to the Third in Kenz, that the statute does not apply retroactively, and, thus, cannot be applied to accidents occurring before the 2010 amendment. The court in McGruder explained, “Respectfully, we disagree with the Kenz court’s conclusion because the 2010 statute, section 768.0755, reinserts the . . . knowledge element into slip and fall claims.” Id. at 426.

Recently, in Glaze v. Worley, 40 Fla. L. Weekly D555 (Fla. 1st DCA Mar. 3, 2015), the First District sided with the Fourth District’s McGruder decision and disagreed with the Third District’s decision in Kenz regarding the retroactivity issue. Thus, the First District, like the Fourth, holds that §768.0755, Fla. Stat., does not apply to accidents that occurred prior to the 2010 amendment. Rather, the earlier statute, §768.0710, Fla. Stat., which provides that actual or constructive knowledge of the transitory substance is not a required element of proof, applies to such claims.

If Glaze and McGruder are any indication, it appears there may be a trend among the appellate courts toward holding that the heightened slip-and-fall statute, §768.0755, Fla. Stat., effective July 1, 2010, does not apply retroactively to accidents occurring before that date. Nevertheless, the Second District and Fifth District do not appear to have directly addressed the issue yet. And, at least in the Third District, the statute will remain retroactive, under Kenz, unless or until the Florida Supreme Court decides the issue.