THE BURDEN OF PROOF AFTER A FALL
Florida Slip and Fall Claims: How to Prove Notice
By Miller & Jacobs Accident Attorneys
To prove notice under Florida Statute 768.0755, you must show that the business knew about the temporary substance or should have known about it, and should have acted to fix it. A fall alone does not prove notice or liability.
You may know what made you slip without knowing when it appeared or who saw it. Start with what you observed, then look for records that fill those gaps. Our Pompano Beach slip and fall attorneys can help review that evidence.
Discuss the EvidenceWhen this rule applies
A “transitory foreign substance” is a temporary substance, such as spilled liquid or dropped food. Section 768.0755 addresses falls on these substances at business establishments. It leaves the common-law duties of those who possess or control business premises intact.
A broken stair or other property defect may raise different issues. Our Pompano Beach premises liability guide covers the broader subject. A notice finding also leaves other parts of a negligence claim to prove, including breach of duty, causation, and harm.
What did the business know?
Actual knowledge means the business knew of the condition. Constructive knowledge means it should have known. The statute gives two ways to show constructive knowledge: the condition lasted long enough to be discovered through ordinary care, or it happened regularly and was foreseeable.
Actual knowledge
Look for a report made before the fall, a witness who saw an employee learn of the spill, or a record of a response to that same condition.
Keep in mind: An employee standing nearby does not, by itself, establish awareness.
Constructive knowledge: time
Look for evidence of when the substance appeared, how it changed, or marks showing activity through it before your fall.
Keep in mind: Knowing when the business last inspected an area does not tell you when the spill began.
Constructive knowledge: recurrence
Look for earlier complaints, repeated leaks, or repair records tied to the same recurring problem.
Keep in mind: One isolated spill does not automatically establish a recurring condition.
Clues to how long it was there
You do not always need a witness who watched the spill happen. Circumstantial evidence can help. These are facts that support an inference. Courts consider details such as footprints, cart tracks, drying, and changes in a substance's condition. Those details need context, as Sutton v. Wal-Mart Stores East (2023) explains.
The useful question is what a clue shows about time before your fall. A mark made as you slipped does not serve the same purpose as earlier tracks through the spill. Describe what you actually saw, including what you cannot tell.
What people mean by “plus factors”
This term refers to facts beyond the mere presence of a substance that help show it was there long enough. It is not a separate statutory shortcut. A dirty appearance can be a feature of the substance itself; it does not always show age.
Why the full record matters
Welch: more than dirty liquid
In Welch v. CHLN, Inc. (2023), the evidence included murky liquid and footprints in different directions that the injured person said were not hers. The court found a factual dispute about constructive notice and reversed a ruling that had ended the case before trial.
What the decision means: That ruling allowed the case to proceed. It did not decide that the restaurant was liable.
Safonte: a nearby employee was not enough
In Publix Super Markets v. Safonte (2024), another customer's yogurt spill existed for about two minutes. A nearby employee had his back to it, and the evidence did not establish that he knew of it. The court found the notice evidence insufficient and directed judgment for Publix.
What the decision means: The decision does not create a two-minute rule for every fall. The circumstances still matter.
Was this a recurring problem?
The recurring-condition route asks whether the dangerous condition happened regularly and was therefore foreseeable. Focus on the same problem, not a general claim that floors sometimes get wet.
Repeated work orders for a leaking cooler, earlier complaints about water in the same walking area, or records of repeated cleanup may help investigate recurrence. These are examples of records to look for, not findings that a particular business had notice. A repair record must still connect to the condition that caused the fall.
Match each record to a question
Video: what happened before the fall?
If footage exists, it may show a spill, movement through the area, or a response by staff. Ask about the period before and after the fall, not just the moment you went down.
Its limit: An unclear camera angle or someone walking past is not automatic proof that the condition was visible or known.
Logs: what was checked and when?
Inspection and cleaning records may help compare the business's account with witnesses and video. Check which area was covered, the recorded times, and what staff say they saw.
Its limit: A gap in a log does not prove the spill was present throughout that gap or shift the statutory burden to the business.
Maintenance: did it keep happening?
Complaints and repair records may identify an ongoing source of water or another substance. Compare dates, locations, and descriptions with the condition involved in your fall.
Its limit: A record about another area or a different defect may not support notice of this condition.
What to save while you can
Medical needs come first. If it is safe, use this checklist to keep your observations clear and useful. Photos are one type of evidence; they are not a requirement for every claim.
- Photograph the scene without changing it.
Take a wide view and closer views of the substance, tracks, nearby signs, and walking area. Keep the original files. Do not move items to make the scene look clearer.
- Write a timeline from what you know.
Record the location, time, what you saw before and after the fall, and who responded. Separate a witnessed fact from an estimate. Note if cleanup happened before you could take photos.
- Keep witness and incident details.
Save names and contact details from willing witnesses. Report the fall and keep any report number or copy you receive, along with messages about the incident.
- Ask promptly about preserving records.
A lawyer can identify relevant footage, inspection logs, and maintenance records and request their preservation. Do not assume cameras exist, footage is still available, or every business keeps records for the same period.
Evidence preservation and filing deadlines are different. Section 95.11(5)(a) sets a two-year limit for negligence actions. The 2023 change applies to causes of action accruing after its March 24, 2023 effective date. Earlier claims, other claim types, and exceptions need separate review. Have your date checked promptly.
Questions about proving notice
How many minutes are enough?
There is no fixed number that decides every case. The question is whether ordinary care should have led the business to discover the condition. Its visibility, duration, and the surrounding facts matter; Safonte applies that fact-specific standard.
Do I need an admission?
No. A pre-fall report or other evidence may show actual knowledge. Constructive knowledge has its own routes through duration or recurrence. Do not treat a denial as proof either way.
What if it was cleaned before I took photos?
That does not automatically resolve your claim. Witness accounts, video, reports, and other records may still help. Record what changed and when. Missing photos do not erase other evidence, but they can leave details harder to establish.
Speak With Our Slip and Fall Lawyers
You do not need a complete evidence file to start a conversation. Bring the date and location, your account of the condition, any photos or witness details, and what the business or insurer has said.
Miller & Jacobs can review what is known and explain possible next steps. Learn about partners Mark J. Miller and Rick S. Jacobs, or see our Orlando slip and fall help if that location fits your needs.
The consultation is free and confidential. There is no attorney fee unless compensation is recovered for you, subject to the written representation agreement.
Mark J. Miller and Rick S. Jacobs, partners at Miller & Jacobs
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