IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT
IN AND FOR LAKE COUNTY, FLORIDA
SHARON VOUGHT and LAURENCE
VOUGHT,
Case No: 2010-CA-1568
Plaintiff,
v.
WINN-DIXIE STORES, INC.,
Defendant.
/
PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION AND MEMORANDUM OF
LAW TO APPLY PREMISES LIABILITY STATUTE RETROACTIVELY
The Plaintiff, Sharon Vought, by and through undersigned counsel, hereby replies to the
Defendant’s Motion And Memorandum Of Law To Apply Premises Liability Statute Retroactive
(hereinafter “Defendant’s Retroactivity Motion.”)
The issue is whether § 768.0755, Florida Statutes (2010), should be applied retroactively,
thereby affecting Plaintiff’s instant cause of action.
I.
Evolution of Law Governing Slip and Fall On Transitory Objects in Florida
Before 2001, Florida law required a person who slipped and fell on a transitory foreign
substance to prove that the business owner had actual or constructive knowledge of the dangerous
condition.
However, in 2001, the Florida Supreme Court held that once the plaintiff had
established that he or she fell on a transitory foreign object, the burden would shift to the defendant
to prove reasonable care. Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 320 (Fla. 2001).
In 2002, apparently in response to Owens, the Florida Legislature enacted § 768.0710,
Florida Statutes (2002), entitled “Burden of proof in claims of negligence involving transitory
foreign objects or substances against persons or entities in possession.” This statute removed the
burden shifting aspect of Owens. Nevertheless, F.S. § 768.0710 still allowed the plaintiff to prove
negligence by showing that the defendant failed to exercise reasonable care “in the maintenance,
inspection, repair, warning, or mode of operation of the business premises.”
768.0710 Burden of proof in claims of negligence involving transitory foreign objects or
substances against persons or entities in possession or control of business premises.-(1) The person or entity in possession or control of business premises owes a duty of
reasonable care to maintain the premises in a reasonably safe condition for the safety
of business invitees on the premises, which includes reasonable efforts to keep the
premises free from transitory foreign objects or substances that might foreseeably give
rise to loss, injury, or damage.
(2) In any civil action for negligence involving loss, injury, or damage to a business invitee
as a result of a transitory foreign object or substance on business premises, the claimant
shall have the burden of proving that:
(a) The person or entity in possession or control of the business premises owed a
duty to the claimant;
(b) The person or entity in possession or control of the business premises acted
negligently by failing to exercise reasonable care in the maintenance, inspection,
repair, warning, or mode of operation of the business premises. Actual or
constructive notice of the transitory foreign object or substance is not a required
element of proof to this claim. However, evidence of notice or lack of notice offered
by any party may be considered together with all of the evidence; and
(c) The failure to exercise reasonable care was a legal cause of the loss, injury, or
damage.
§ 768.0710, Fla. Stat. (2008).
Florida Statute § 768.0710 specifically stated that “actual or constructive notice of the
transitory foreign object or substance is not a required element of proof to this claim.” Id.
Therefore, although the 2002 statute removed the burden-shifting created by the court in Owens,
the statute, like Owens, did not require the plaintiff to prove actual or constructive notice as
an element of the claim.
The Legislature revised the statute in 2010, repealing F.S. § 768.0710, and replacing it with
§ 768.0755, Florida Statutes (2010), and provided an effective date of July 1, 2010. When revising
the new law, the Legislature did not indicate that the statute should apply retroactively. (The
legislative history also provides that the statute was intended to return to the transitory object law
that existed prior to 2001. See Exhibit A.)
F.S. § 786.0755 is entitled “Premises liability for transitory foreign substances in a
business establishment” and provides:
(1) If a person slips and falls on a transitory foreign substance in a business establishment,
the injured person must prove that the business establishment had actual or
constructive knowledge of the dangerous condition and should have taken action to
remedy it. Constructive knowledge may be proven by circumstantial evidence showing
that:
(a) The dangerous condition existed for such a length of time that, in the exercise
of ordinary care, the business establishment should have known of the condition;
or
(b) The condition occurred with regularity and was therefore foreseeable.
(2) This section does not affect any common-law duty of care owed by a person or entity
in possession or control of a business premises.
§ 768.0755, Fla. Stat. (2010) (emphasis added).
Importantly, the older F.S. § 768.0710 did not require the plaintiff to prove the element of
actual or constructive knowledge, but the newer F.S. § 768.0755 does.
II.
There Is A Certified Conflict Regarding The Retroactivity Of F.S. § 768.0755
The Defendant failed to disclose that there is a certified conflict between several Florida
district courts of appeal regarding the retroactivity of Florida Statute §768.0755. Specifically, both
the First and Fourth District Courts of Appeal have concluded, for constitutional reasons, that
Florida Statute § 768. 0755 is not retroactive. Pembroke Lakes Mall Ltd. v. McGruder, 137 So.3d
418, 423-427 (4th DCA 2014) (holding Florida Statute § 768.0755 is not retroactive and certifying
conflict with the third district in Kenz, infra.); Feris v. Club Country of Fort Walton Beach, Inc.,
138 So.3d 531, 535-536 (1st DCA 2014) (stating, in dicta, that Florida Statute § 768.0755 is not
retroactive). Only the Third District Court of Appeal has disagreed. Kenz v. Miami-Dade County,
116 So.3d 461, 463-466 (3rd DCA 2013). The Fifth District Court of Appeal has not ruled on the
retroactivity of § F.S. 768.0755, so there is no binding precedent in this district.
III.
Florida Statute § 768.0755 Should Not Be Retroactively Applied
Florida Statute § 768.0755 should not be retroactively applied because the Legislature did not
clearly express its intent that the statute have retroactive application. In the alternative, if this
Court finds that the Legislature did clearly express its intent for retroactive application, F.S. §
768.0755 still should not be applied retroactively because doing so would violate constitutional
principles by impairing plaintiffs’ vested rights.
The Florida Supreme Court has adopted the
following test to determine whether a statute should be applied retroactively:
[A] reviewing court must ascertain (1) whether the Legislature clearly expressed its intent
that the statute have retroactive application; and if so, (2) whether retroactive application
would violate any constitutional principles.
Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 424-26 (Fla. Dist. Ct. App. 2014), reh'g
denied (Apr. 11, 2014); Feris v. Club Country of Fort Walton Beach, Inc., 138 So. 3d 531, 535
(Fla. Dist. Ct. App. 2014).
a. The Legislature Did Not Express Intent That F.S. § 768.0755 Should Be Applied
Retroactively
The first question is whether the Legislature expressed any intent that courts should
retroactively apply F.S. § 768.0755. The Pembroke Court found that “the legislature gave no
indication in section 768.0755 that the statute was to be applied retroactively.” Pembroke Lakes
Mall Ltd. at 425. Additionally, the Feris Court held that there was not clear evidence of legislative
intent for retroactivity. Feris at 536. The Feris Court did not address the issue of whether
retroactive application would violate constitutional principles and chose to apply F.S. § 768.0755
prospectively based on the lack of legislative intent to the contrary. Indeed, the law enacting
section F.S. § 768.0755 contains no express statement as to the Legislature's intent regarding
retroactive application. See Ch. 2010–8, §§ 1–3 Laws of Fla.; Feris v. Club Country of Fort Walton
Beach, Inc., 138 So. 3d 531, 536 (Fla. Dist. Ct. App. 2014).
In determining legislative intent where the Legislature made no express statements
regarding retroactive application, courts consider whether the Legislature included an effective
date for the legislation. “The legislature's inclusion of an effective date for an amendment is
considered to be evidence rebutting intent for retroactive application of a law.” Feris at 536.
Section 3 of Chapter 2010-8 provides that the new statute shall take effect July 1, 2010. Id. (The
legislative history does not discuss the retroactivity issue. Exhibit A.) At the very least, there
certainly is not “clear evidence of legislative intent for retroactivity,” which is required under the
first prong of the retroactivity test.
Given the Legislature’s inclusion of an effective date, together with no expressed
legislative intent to apply the statute retroactively, the statute should not be retroactively
applied.
The second question is whether the statute is procedural or substantive in nature. The Kentz
Court did not address the issue of legislative intent regarding F.S. § 768.0755 and instead chose to
focus solely on whether F.S. § 768.0755 is substantive or procedural in nature. This question must
be asked because “[e]ven in the absence of legislative indication that a statute should apply
retroactively, procedural and remedial statutes ‘should be applied to pending cases in order to fully
effectuate the legislation's intended purpose.’” Arrow Air, Inc. v. Walsh, 645 So.2d 422, 424
(Fla.1994). “The general rule against retroactive application of statutes does not apply to
procedural or remedial changes.” See Smiley, 966 So.2d at 334 (citing City of Lakeland v.
Catinella, 129 So.2d 133, 136 (Fla.1961)); State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d
55, 61 (Fla.1995) (“The general rule is that a substantive statute will not operate retrospectively
absent clear legislative intent to the contrary, but that a procedural or remedial statute is to operate
retrospectively.”) (citations omitted). Thus, the issue is whether section 768.0755 is procedural or
substantive. Pembroke Lakes Mall Ltd. at 425.
Florida Statute § 768.0755 is substantive law because it adds a new knowledge element
(namely, actual or constructive notice) to any transitory object / slip and fall case and thus should
only be applied prospectively. “[S]ubstantive law prescribes duties and rights and procedural law
concerns the means and methods to apply and enforce those duties and rights.” Alamo Rent–A–
Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994) (citation omitted).”
b. Retroactive Application Of F.S. § 768.0755 Would Impair Due Process And Other
Constitutional Rights In Vested Causes Of Action
Even if the Legislature had expressed a contrary intent, retroactive application of F.S. §
768.0755 would violate constitutional principles and thus should not be applied retroactively. The
problem with retroactive application of F.S. § 768.0755 is that applying the new statute to already
pending cases will abolish some causes of action entirely, despite their previous viability, thereby
unconstitutionally impairing vested property rights. The Florida Supreme Court has refused to
apply a statute retroactively if the statute “impairs vested rights, creates new obligations, or
imposes new penalties.” Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 425 (Fla. Dist.
Ct. App. 2014), reh'g denied (Apr. 11, 2014), citing State Farm Mut. Auto. Ins. Co. v. Laforet, 658
So.2d 55, 61 (Fla.1995). Further, “[a]n accrued cause of action constitutes a vested property right,
and a statute cannot be applied retroactively in a way that eliminates a party's vested property
right.” Id.
In a strikingly similar case, the Florida Supreme Court refused to apply a statute that would
destroy many previously viable tort causes of action to pending cases. Am. Optical Corp. v.
Spiewak, 73 So. 3d 120, 123 (Fla. 2011). Specifically, American Optical involved the potential
retroactivity of an asbestosis litigation statute passed while many asbestos cases were pending in
Florida. Id. Under the new version of the asbestos statute, the plaintiffs would have been required
to prove “as an indispensable element” certain very specific & highly elaborate physical
manifestations of their disease. Id. They would not have been required to prove those same
manifestations under the previous version of the statute. Id.
Despite crystal clear legislative
intent to the contrary, the Florida Supreme Court held that retroactive application of the asbestos
litigation statute to already accrued causes of action would not only impair, but actually destroy,
vested property rights, and thereby violate due process and other constitutional rights. Id. at 125133. Specifically, those without the newly required physical manifestations of asbestosis would
have their pending & previously vested cases dismissed. Id. Moreover, the Florida Supreme Court
has consistently held that “statutes that operate to abolish or abrogate a preexisting right, defense,
or cause of action cannot be applied retroactively.” Id. at 133.
In the instant case, those plaintiffs who had a viable cause of action pursuant to F.S. §
768.0710, but who cannot demonstrate actual or constructive knowledge pursuant to F.S. §
768.0755, will have their previously vested causes of action dismissed. Just like the injured victims
of asbestosis with pending cases in American Optical, retroactive application of F.S. § 768.0755
would impair the constitutionally protected property rights of any plaintiffs with pending transitory
object / slip and fall cases but without evidence of actual or constructive notice.
Therefore, Florida Statute § 768.0755 should not be retroactively applied because the
Legislature did not clearly express its intent that the statute have retroactive application. In the
alternative, if this Court finds that the Legislature did clearly express its intent for retroactive
application, F.S. § 768.0755 still should not be applied retroactively because doing so would
violate constitutional principles by impairing plaintiffs’ vested property rights.
c.
F.S. § 768.0755 Is Substantive, Not Procedural in Nature
The Kenz court, which is the only Florida appellate court that has found F.S. § 768.0755 to
be retroactive, correctly explained that procedural statutes are retroactive, while substantive
statutes are not (without clear legislative intent to the contrary). Kenz v. Miami-Dade Cnty., 116
So. 3d 461, 464 (Fla. 3rd DCA 2013). The court also accurately explained the distinction:
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.”
Kenz v. Miami-Dade Cnty., 116 So. 3d 461, 464 (Fla. Dist. Ct. App. 2013).
However, the justices in Kenz were wrong when they concluded that F.S. § 768.0755
should be retroactively applied because, under their interpretation, F.S. § 768.0755 did not add any
new element required to prove negligence. Id. When explaining their convoluted reasoning, the
court first listed the elements of a basic negligence / premises liability claim (essentially duty,
breach, causation and damages). Id. The court then concluded that F.S. § 768.0755 added nothing
to those elements, but instead prescribed the “means and method” of establishing the breach of
duty element. Id. Specifically, the court concluded that the statute only dealt with the burden of
proof, namely requiring the plaintiff to prove actual or constructive knowledge to establish the
element of breach of duty. Id. Numerous Florida cases have held that issues relating only to a
party’s burden of proof are generally procedural. Id.
As explained by the court in Pembroke, the court’s analysis in Kenz was erroneous because
the newer F.S. § 768.0755 adds a new knowledge element to any transitory object / slip and fall
case. Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 426 (Fla. Dist. Ct. App. 2014),
reh'g denied (Apr. 11, 2014). More specifically, the older F.S. § 768.0710 said that actual or
constructive notice was not “a required element to this claim,” whereas the newer F.S. § 768.0755
requires proof of actual or constructive notice. Id. Since adding a new element could eliminate
some cases altogether, the court in Pembroke concluded that the statute was substantive in nature
and, therefore, could not constitutionally be applied in a retroactive manner. Id.
See also Kelso
v. Big Lots Stores, Inc., No. 8:09–cv–01286–T–EAK–TGW, 2010 WL 2889882, *2 (M.D.Fla. July
21, 2010) (“[section 768.0755] adds a new element to the claim, creating a new legal obligation
and attaching new legal consequences to events that took place before the statute's enactment;
therefore, the plaintiff's substantive rights are affected.”).
IV.
Why the Kenz Court’s Analysis Is Wrong
a. The Kenz Court Misinterpreted the Florida Supreme Court’s Dicta In
Owens
The primary basis for the holding in Kenz was that F.S. § 768.0755 deals only with the
burden of proof. Kenz, 116 So. 3d at 464-466. As the court correctly noted, statutes impacting
only the burden of proof may be retroactively applied. Id.
However, as the Kenz court further explained in a telling footnote, the reason they
concluded F.S. § 768.0755 was purely related to the burden of proof was that the Florida Supreme
Court had previously declared, also in a footnote, that the rebuttable presumption created by the
Florida Supreme Court in Owens was one “affecting the burden of proof.” Kenz v. Miami-Dade
Cnty., 116 So. 3d 461, 463 n. 1 (Fla. Dist. Ct. App. 2013) (“In doing so, the court specifically
noted that the presumption was one ‘affecting the burden of proof.’”) (emphasis added). However,
careful review of footnote ten in Owens reveals that the Kenz court reasoning was woefully
misguided. Specifically, the Florida Supreme Court in Owens explained:
The presumption is one affecting the burden of proof pursuant to section 90.304, Florida
Statutes (2000). As we explained in Beal Bank, SSB v. Almand & Associates, 780 So.2d
45, 59 n. 20 (Fla. 2001):
Section 90.304 provides that “in civil actions, all rebuttable presumptions which
are not defined in s. 90.303 are presumptions affecting the burden of proof.”
Pursuant to section 90.302(2), a presumption affecting the burden of proof
“imposes upon the party against whom it operates the burden of proof concerning
the nonexistence of the presumed fact.” Thus, when evidence rebutting such a
presumption is introduced, the presumption does not automatically disappear. It is
not overcome until the trier of fact believes that the presumed fact has been
overcome by whatever degree of persuasion is required by the substantive law of
the case. See generally Charles W. Ehrhardt, Florida Evidence, §§ 302.1, 302.2,
303.1, 304.1 (2000 ed.).
Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 331, n. 10 (Fla. 2001).
Further, Florida Statute § 90.304, referenced in footnote 10 of the Owens case, entitled
“[p]resumption affecting the burden of proof defined,” states:
In civil actions, all rebuttable presumptions which are not defined in s. 90.303 are
presumptions affecting the burden of proof.
Fla. Stat. Ann. § 90.304 (West) (emphasis added).
Accordingly, when the Florida Supreme Court mentioned in Owens (in 2001) that their
decision related to the burden of proof, they were quite obviously referencing the then newly
created rebuttable presumption. In 2002, F.S. § 768.0710, entitled “burden of proof . . . ,” removed
that rebuttable presumption. In 2010, with the rebuttable presumption long since out of the picture,
F.S. § 768.0755 operated in an entirely different way than the 2002 deletion of the rebuttable
presumption, by adding the element of actual or constructive knowledge. The 2010 statute (F.S.
§ 768.0755) had nothing whatsoever to do with the long gone rebuttable presumption. So the
Florida Supreme Court’s footnote reference to the rebuttable presumption relating to the burden
of proof has nothing whatsoever to do with whether the 2010 statutory addition of the new
knowledge element, and the entire abolition of previously viable causes of action that lacked that
element, relates to the burden of proof, and only to the burden of proof, as required to hold that
this statute is only procedural and therefore can be retroactively applied.
V.
The Twenty-One Circuit Orders Attached To Defendant’s Motion Are
Misleading And Irrelevant
Without even mentioning the certified conflict between the district courts of appeal, the
Defendant instead attached twenty-one (21) circuit court orders finding that F.S. § 768.0755 should
be retroactively applied, all of which are completely outdated and, therefore, totally irrelevant and
highly misleading. None of those circuit court orders currently have any relevance since all but
two of them pre-date any district court of appeal rulings on this issue, and the remaining two predate the certified conflict (and those circuit courts were, at that time, unquestionably bound to
follow Kenz).
Although the orders are not controlling, the Plaintiff has nevertheless attached 33 circuit court
orders finding the opposite of Defendant’s orders (Exhibit B,) all with much lengthier and more
persuasive reasoning. There are also numerous federal district court orders finding that the statute
should not be applied retroactively. Compare Kelso v. Big Lots Stores, Inc., 8:09-CV-01286, 2010
WL 2889882 (M.D. Fla. July 21, 2010) (“[b]ecause there is no indication of legislative intent
to apply Florida Statute Section 768.0755 retroactively, and because the statute affects the
plaintiff's substantive rights, the statute may not be applied retroactively.”) (emphasis added);
Mills v. Target Corp., 5:10-CV-263-OC-32TEM, 2010 WL 4646701 (M.D. Fla. Nov. 9, 2010) (“.
. . section 768.0755 is a substantive change to the law in that it requires an entirely new item
of proof-namely that the plaintiff prove ‘actual or constructive knowledge [on the part of the
Defendant] of the dangerous condition ....’ Thus, section 768.0755 imposes upon plaintiffs a new
legal burden and a plaintiffs' substantive rights are affected thereby. The new law, section
768.0755, therefore applies only prospectively and the old law, section 768.0710, is applicable
in this case.”) (emphasis added; citations omitted); Castellanos v. Target Corp., 10-62456-CIV,
2011 WL 5178334 (S.D. Fla. Oct. 14, 2011) (“[t]his Court agrees with Kelso and its progeny that
§ 768.0755 is substantive. The statute does more than merely alter the burden of proof,
because it adds a new element to a negligence claim by requiring a plaintiff to prove actual
or constructive notice. . . .[b]ecause there is no indication that the legislature intended the statute
to be retroactive and because the statute affects a substantive right, § 768.0755 does not apply to
this case. Instead, the former statute, § 768.0710, governs.”) (citations omitted); Rivera v. WalMart Stores E., LP, 3:10-CV-956-J-20TEM, 2011 WL 7575393 (M.D. Fla. Jan. 13, 2011) (“[b]y
requiring Plaintiff to prove Defendant had actual or constructive knowledge of the
dangerous condition, the statute creates a new legal obligation and attaches new legal
consequences to events that took place before the statute's enactment. Thus, retroactive
application of the law should be rejected.”); Kenny v. United States, 8:10-CV-1083-T-27EAJ,
2012 WL 523624, n. 2 (M.D. Fla. Feb. 16, 2012) (“[t]he defense did not argue that Fla. Stat. §
768.0755 (2010), which repealed § 768.0710, applied retroactively, and for apparent good reason.
There is nothing which suggests that the Florida Legislature intended § 768.0755 to operate
retroactively.”); Vallot v. Logans Roadhouse, Inc., 6:12-CV-1561-ORL-31, 2013 WL 5305672
(M.D. Fla. Sept. 20, 2013) reconsideration denied, 6:12-CV-1561-ORL-31, 2013 WL 5519864
(M.D. Fla. Oct. 1, 2013) and aff'd sub nom. Vallot v. Logan's Roadhouse, Inc., 567 F. App'x 723
(11th Cir. 2014) (“in the absence of a ruling by the Florida Supreme Court, federal courts applying
Florida law must follow the rulings of Florida's district courts of appeal unless there is indication
the Florida Supreme Court would not follow a district court's decision. As such, this Court must
follow Kenz and apply § 768.0755 retroactively.”); Sammon v. Target Corp., 8:11-CV-1258-T30EAJ, 2012 WL 3984728 (M.D. Fla. Sept. 11, 2012) (“[t]he statute has since been repealed and
replaced by section 768.0755 (2010), however, it applies here because it was in effect at the time
of the accrual of Plaintiffs' claims.”) with Yates v. Wal-Mart Stores, Inc., 5:10-CV-226 RS-GRJ,
2010 WL 4318795 (N.D. Fla. Oct. 27, 2010) (holding statute should not be retroactively applied).1
However, much as the Plaintiff would like to rely on the “we have more and better reasoned
circuit and federal court orders than you do” argument, the reality is that none of the circuit court
orders matter, and the federal court orders are only mildly persuasive.
Exactly 19 of the
Defendant’s attached 21 circuit orders, and all of the Plaintiff’s 33 circuit court orders, pre-dated
any district court of appeal opinions on the issue. The only remaining two of the Defendant’s
attached circuit court orders, decided in 2013, were unquestionably bound to follow Kenz, which
was then the only DCA opinion on this issue, and which held that the statute should be retroactively
applied. As Sumter County Circuit Judge Hallman stated in McCormick v. Publix Supermarkets,
in September of 2013 (this being the first of the two circuit court orders that post-dated any DCA
opinion on the issue):
The decision rendered by Kenz v. Miami-Dade County, 116 So. 3d 461 (Fla. 3d DCA 2013) is
right on point to the issue of retroactivity presented in this case. When there is no binding
1
Yates was the only federal court that held that 768.0755 was retroactive (back in 2010,
before the certified conflict developed amongst Florida’s district courts of appeal).
Regarding the reasoning in Yates, the federal district court (for the Southern District) in
Castellanos cited with approval two other federal court opinions, all of which courts agreed:
Yates was decided without the benefit of opposition and does not appear to have applied
Florida's two-pronged test for retroactivity.
Castellanos v. Target Corp., 10-62456-CIV, 2011 WL 5178334 (S.D. Fla. Oct. 14, 2011) (citing
Rivera, Case No. 3:10–cv–956–J–20TEM (M.D.Fla. Jan. 12, 2011); Mills, 2010 WL 4646701
(M.D.Fla. Nov.9, 2010)).
precedent from the Florida Supreme Court or an appellate for the district in which a trial court
sits, the trial judge is bound to follow the decision of other appellate courts that are on point.
The decisions of the district courts of appeal are binding precedent throughout Florida. System
Components Corp. v. Florida Dept. of Transp., 14 So. 3d 967 (Fla. 2009). Consequently, this
Court is bound by the determination made by the Third Circuit in Kenz.
(Defendant’s Exhibit B.)
Similarly, Sumter Circuit Court Judge Hallman repeated himself in Gould v. Winn-Dixie
Stores, Inc., which he also decided in September of 2013 (this being the second of the only two
circuit court orders that post-dated any DCA opinion on the issue):
The decision rendered by Kenz v. Miami-Dade County, 116 So. 3d 461 (Fla. 3d DCA 2013) is
right on point to the issue of retroactivity presented in this case. When there is no binding
precedent from the Florida Supreme Court or an appellate court for the district in which a trial
court sits, the trial judge is bound to follow the decisions of the other appellate courts that are
on point. The decisions of the district courts of appeal are binding precedent throughout
Florida. System Components Corp. v. Florida Dept. of Transp., 14 So. 3d 967 (Fla. 2009).
Consequently, this Court is bound by the determination made by the Third Circuit in Kenz.
(Defendant’s Exhibit B.)
Both of the circuit courts which followed Kenz (in the Defendant’s Exhibit A) stated that they
were duty-bound to follow the only DCA opinion that existed at that time on this issue. Those two
circuit court judges were not free, as this Court is, to exercise their independent judgment because,
in the absence of a conflict or Florida Supreme Court ruling on any issue, circuit courts are bound
to follow any district court of appeal precedent, even if from a different jurisdiction. System
Components Corp. v. Florida Dept. of Transp., 14 So. 3d 967 (Fla. 2009).
However, since all of the circuit court orders attached to the Defendant’s motion (and in
Plaintiff’s competing Exhibit B) were decided, as previously explained, two other district courts
of appeal have found that F.S. §768.0755 should not be retroactively applied (one of which
certified conflict with Kenz). Pembroke Lakes Mall Ltd. v. McGruder, 137 So.3d 418, 423-427
(4th DCA 2014); Feris v. Club Country of Fort Walton Beach, Inc., 138 So.3d 531, 535-536 (1st
DCA 2014). Also, both of those opinions had much more compelling reasoning than Kenz. The
more persuasive reasoning in what are obviously the most relevant precedential opinions is the
likely reason the Defendant produced only outdated and irrelevant circuit court orders, rather than
transparently telling this Court that there is a certified conflict between three district courts of
appeal on this issue, and encouraging this Court to read those opinions and then exercise this
Court’s independent judgment regarding which are more persuasive.2
VI.
In The Alternative, Should This Court Find That F.S. § 768.0755 Is
Retroactive, Plaintiff Asks The Court To Find That The Negligent Mode Of
Operation Theory Is Still Viable
Assuming this Court were to decide that F.S. § 768.0755 should be retroactively applied,
the next issue is whether the negligent mode of operation theory is still viable under F.S. §
768.0755. Although the “negligent mode of operation” language existed in the older F.S. §
768.0710, but was not mentioned in the newer F.S. § 768.0755, the newer statute says that it “does
not affect any common law duty of care,” and the legislative history indicates that the Legislature
was trying to return to pre-2001 law. (Exhibit A.) (". . . approximates the law with respect to slip
and fall suits as it existed before 2001.") The negligent mode of operation theory existed prior to
2001.
Publix Super Mkt., Inc. v. Sanchez, 700 So. 2d 405, 406 (Fla. Dist. Ct. App. 1997)
disapproved of by Owens v. Publix Supermarkets, Inc., 802 So. 2d 315 (Fla. 2001). One federal
district court, and the Eleventh Circuit in the same case on appeal, have agreed that the negligent
mode of operation theory still exists under F.S. § 768.0755, because the statute allows the plaintiff
to proceed under any common law duty of care. Berard v. Target Corp., 2013 WL 5587940, *4
(M.D. Fla. 2013) aff'd, 559 F. App'x 977 (11th Cir. 2014) (“[p]laintiff also relies on the negligent
Overall, the Plaintiff feels confident this Court will agree that the much greater (as well
as more persuasive) weight of authority from all Florida federal, circuit and district courts of
appeal, both before and after the certified conflict arose, have held that F.S. § 768.0755 is not
retroactive.
2
mode of operation theory to prove her case. Section 768.0755(2) allows a plaintiff to proceed with
a premises liability case under a common law duty of care.”); see also Berard v. Target Corp., 559
F. App'x 977, *978 (11th Cir. 2014) (considering the negligent mode of operation theory under
F.S. § 768.0755).
Further, even if this Court concludes that the negligent mode of operation theory is still
viable (and therefore any cases relying on that theory would not be negatively impacted),
retroactive application of F.S. § 768.0755 would still impair vested property rights (and would
therefore be unconstitutional) because the negligent mode of operation theory is just one of a range
of alternate negligence theories the plaintiff could have utilized under the older F.S. § 768.0710
statute to prove her case. The other possible theories available under the older F.S. § 768.0710,
which did not require proof of actual or constructive notice, were negligent maintenance,
inspection, repair or warning, and which are separate and distinct theories of liability from the
negligent mode of operation.3
VII.
Conclusion
For the foregoing reasons, the Plaintiff respectfully requests that this Court deny the
Defendant’s Retroactivity Motion.
WHEREFORE, Plaintiff, respectfully requests this Honorable Court to deny Defendant’s
Motion to Apply the Premises Liability Statute Retroactively and to enter an Order denying said
request.
3
The Plaintiff concedes that the important alternative liability theories of negligent
maintenance, inspection, repair or warning are no longer viable under the newer statute F.S. §
768.0755 because those theories of liability did not exist prior to 2001, at least not without proof
of actual or constructive notice. The negligent mode of operation is the only theory of liability
that the Plaintiff contends still exists, without proof of actual or constructive notice.
Respectfully submitted this _______ day of December, 2014.