Slip-and-fall suits to lose traction in Florida

TAMPA — A piece of chicken brought Tyrin Cherry to his knees. Literally. And it could cost KFC $20,000.

In April 2009, Cherry, then 14, was leaving a Tampa location of the fast-food chain when he slipped on the chicken, his mother alleged in a lawsuit.

A Florida law that takes effect Thursday will make it tougher for business patrons like Cherry to win settlements in slip-and-fall cases.

The new statute puts responsibility on the injured person to prove that the business knew or should have known about the substance that caused the fall and failed to clean it up.

Previously, injured people had to prove only that an out-of-place substance caused the accident.

"The law reintroduces fairness and creates a level playing field for businesses and customers," said Samantha Hunter Padgett, deputy general counsel for the Florida Retail Federation.

But not everyone agrees.

Paul Jess, general counsel of the Florida Justice Association, said a victim usually is too busy caring for injuries to gather evidence.

"At that point, your only interest is getting to the emergency room, getting pain medications and getting patched up. You are not in a good position to know how long the banana peel was on the floor," Jess said.

Business owners are in a better position to investigate, he said. Existing law gave them incentive to take photographs and conduct interviews. But with the new law, there will be little motivation to do that and little chance for the injured person to prove a case, he said.

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Slip-and-fall lawsuits are filed every day in the Tampa Bay area and throughout Florida, known nationally as an easy place to win those cases.

Regina Epp said she slipped on vomit in a St. Petersburg parking lot and hit her head on a handicap sign.

Charles Kirton said he slipped on blueberries at a Clearwater Publix.

Both filed lawsuits, which are pending.

Though the impetus for such suits may vary, the results are often the same, said Timothy Kaye, a professor at Stetson University College of Law. Businesses pay out money long before a jury gets involved.

"Quite a lot of lawsuits are filed but very, very few of them ever get to court," Kaye said. "More and more cases are getting settled out of court."

The first thing attorneys consider are the injuries, said Luis Guillermo Figueroa, a personal injury lawyer at Nicholas and Patrick P.A. of Tampa.

"The nature of the injury mandates how much a case is worth," he said.

Then lawyers turn their attention to fault.

Typically, businesses offer settlements when it's difficult to prove they took proper precautions to prevent an accident, Figueroa said.

In Cherry's case, the fall left him with a torn ligament, a sprained back and a headache, according to a lawsuit filed by his mother, Uhura Cherry, in Hillsborough County.

His medical bills added up to more than $5,000, the lawsuit said.

KFC offered Cherry $20,000 to settle, court documents show.

Such offers are more often confidential. Several plaintiffs of bay area slip-and-fall lawsuits — including the Cherry family — declined to discuss their cases with the St. Petersburg Times.

But because Cherry is a minor, the settlement offer was documented in court. According to the court file, his attorneys would get more than $7,000 and about $2,500 would pay the teen's remaining medical bills.

• • •

Will the new law make much difference?

Kaye, the Stetson professor, isn't convinced.

"This is much more about politicking than it is legal, really," he said. "It's much more about legislators doing more for retail businesses."

A staff analysis of the bill in the House of Representatives predicted that the change would give businesses an advantage.

Retailers hope there will be less need for settlements once the new law takes effect, Hunter Padgett said. "Previously, whether or not a retailer fulfilled their duty was kind of out of the window," she said. "If you fell, then the retailer was forced to already be on the defense."

Lawyer Figueroa doesn't see lawsuits declining in number.

"I don't think they will go away," he said. "I think people will still get hurt. I think what it will do is make it more difficult to present a case."

Shelley Rossetter can be reached at (813) 226-3374 or srossetter@sptimes.com.

Slip-and-fall suits to lose traction in Florida 06/27/10 [Last modified: Sunday, June 27, 2010 10:52pm]

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