Kenz v. Miami-Dade Cnty.

• Decision Date: 26 June 2013
• Docket Number: No. 3D12–571.,3D12–571.
• Citation: 116 So.3d 461
• Parties: Carrie KENZ, Appellant, v. MIAMI–DADE COUNTY and Unicco Service Company, Appellees.
• Court: Florida District Court of Appeals

116 So.3d 461

Carrie KENZ, Appellant,
v.
MIAMI–DADE COUNTY and Unicco Service Company, Appellees.

No. 3D12–571.

District Court of Appeal of Florida,
Third District.

April 24, 2013.
Rehearing Denied June 26, 2013.

[116 So.3d 462]

Bruce Botsford, Ft. Lauderdale, for appellant.

Hunter, Williams & Lynch and Christopher J. Lynch; Angones, McClure & Garcia and Donna J. Hunter, for appellees.

Before SHEPHERD and LAGOA, JJ., and SCHWARTZ, Senior Judge.

LAGOA, J.

Carrie Kenz (“Kenz”) appeals from a final summary judgment entered in favor of Miami–Dade County and Unicco Service Company (collectively “Appellees”). She alleges that the trial court erred in applying section 768.0755, Florida Statutes (2010), rather than section 768.0710, Florida Statutes (2002), to her slip-and-fall action. For the reasons expressed below, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

On May 13, 2008, Kenz slipped on liquid and fell at Miami International Airport. In July 2009, she filed suit against Appellees, alleging permanent injuries as a result of the fall. Section 768.0710, Florida Statutes (2002), was in effect at the time of Kenz's slip and fall.¹ That statute provided,

[116 So.3d 463]

in part, that in a negligence action involving a transitory foreign substance in a business establishment, “[a]ctual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim.” § 768.0710(2)(b), Fla. Stat. (2002).

On July 1, 2010, after Kenz filed suit but before trial commenced, section 768.0755, Florida Statutes (2010),² took effect and superseded section 768.0710.³ For the purposes of this discussion, section 768.0755 effectively returned Florida law to its pre- Owens status, and provides that a person who slips and falls on a transitory foreign substance in a business establishment “must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.” § 768.0755(1), Fla. Stat. (2010).

On June 7, 2011, Appellees filed a motion seeking a determination that section 768.0755 was applicable to Kenz's case, arguing that the statute should apply retroactively because it is procedural in nature, rather than substantive. On October 28, 2011, the trial court granted the motion and ruled that section 768.0755 was to be given retroactive effect. On December 22, 2011, Appellees filed a motion for final summary judgment, which asserted that Kenz failed to prove Appellees had actual or constructive knowledge of the dangerous condition, as required by section 768.0755. Following a hearing, the trial court granted the motion for summary judgment, and on February 6, 2012, it entered a final summary judgment. This appeal followed.

II. STANDARD OF REVIEW

The standard of review for a summary judgment is de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

III. ANALYSIS

As the Florida Supreme Court explained in Smiley v. State, 966 So.2d 330, 334 (Fla.2007), the analysis of whether a change in the statutory law should receive retroactive application requires a determination whether the statute sought to be applied retroactively is substantive in nature, or procedural/remedial in nature. The distinction is important because “a substantive statute will not operate retrospectively absent clear legislative intent to the contrary.” Fla. Ins. Guar. Ass'n v. Devon Neighborhood Ass'n, 67 So.3d 187, 194 (Fla.2011) (quoting

[116 So.3d 464]

State Farm Mut. Auto. Ins. v. Laforet, 658 So.2d 55, 61 (Fla.1995)); Weingrad v. Miles, 29 So.3d 406, 410 (Fla. 3d DCA 2010), review denied,75 So.3d 1245 (Fla.2011). In contrast, a procedural/remedial statute “should be applied to pending cases in order to fully effectuate the legislation's intended purpose.” Smiley, 966 So.2d at 334 (quoting Arrow Air, Inc. v. Walsh, 645 So.2d 422, 424 (Fla.1994)); accord Yates v. Wal–Mart Stores, Inc., No. 5:10–cv–226/RS–GRJ, 2010 WL 4318795 (N.D.Fla. Oct. 27, 2010); Ziccardi v. Strother, 570 So.2d 1319, 1320–21 (Fla. 2d DCA 1990).

In determining whether a statute is procedural or substantive, this Court has stated that “[s]ubstantive law prescribes duties and rights, whereas procedural law concerns the means and methods to enforce those duties and rights.” Weingrad, 29 So.3d at 409 (citing Alamo Rent–A–Car, Inc. v. Mancusi, 632 So.2d 1352 (Fla.1994)). Whether section 768.0755 applies to Kenz's case, therefore, turns on whether the statute is substantive or procedural in nature.

Appellees argue that section 768.0755 is procedural in nature because it merely codifies a change to the plaintiff's burden of proof in a slip-and-fall case. Kenz, on the other hand, contends that the statute is substantive in nature, because it creates a new element the plaintiff must prove in a slip-and-fall case, namely, actual or constructive knowledge of the dangerous condition.

We begin our analysis by reviewing the requisite elements necessary to plead and prove a negligence cause of action. The three elements a plaintiff must plead and prove in a cause of action sounding in negligence are: (1) the existence of a duty recognized by law requiring the defendant to conform to a certain standard of conduct for the protection of others including the plaintiff; (2) a failure on the part of the defendant to perform that duty; and (3) an injury or damage to the plaintiff proximately caused by such failure. Tieder v. Little, 502 So.2d 923, 925 (Fla. 3d DCA 1987). Specifically, a business owner owes two duties to a business invitee: (1) to take ordinary and reasonable care to keep its premises reasonably safe for invitees; and (2) to warn of perils that were known or should have been known to the owner and of which the invitee could not discover. Delgado v. Laundromax, Inc., 65 So.3d 1087, 1089 (Fla. 3d DCA 2011).

By requiring that the plaintiff prove “that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it,” section 768.0755(1) does not create any new element of a cause of action for negligence. Rather, by requiring that the plaintiff prove actual or constructive knowledge, the statute codifies a means and method by which a plaintiff shows that the defendant-business establishment has breached its duty of care. Cf. Delgado, 65 So.3d at 1089 n. 1 (stating in dicta that section 768.0755 defines “how a breach of duty is proven by...