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A Times Editorial

Proposed legislation tilts too much toward business and away from injured

What the Florida Supreme Court giveth, the Florida Legislature may taketh away.

Several bills have been filed this session to overturn opinions by the state's highest court that favor the rights of injured victims over negligent businesses. Florida's business community is lobbying the friendly Republican-controlled Legislature for new laws that would make it much harder for injured people to collect damages. Maybe a few legal tweaks are needed, but these bills would tilt the law too heavily toward insulating businesses from liability. The Florida Supreme Court's instincts generally were good ones that largely should be left alone in these three areas:

Vehicle defects

How should cases be handled when a victim of a car accident suffers injuries that are exacerbated by a car's defects? That was the question in the 2001 Florida Supreme Court ruling D'Amario vs. Ford Motor Co. The court ruled that if a car's defects may have caused a secondary set of injuries, that issue should be treated separately instead of apportioning fault among all the parties involved in a crash.

In D'Amario, a young man was severely burned when the car he was riding in, driven by his intoxicated 15-year-old friend, crashed into a tree and burst into flames. The suit claimed Ford caused his injuries with a defective relay switch that failed to disrupt the flow of power to the fuel pump, resulting in the fire. Ford wanted the drunken driver to be held most at fault for causing the injuries. But the court ruled a car's capacity for withstanding crashes should be a distinct inquiry. Otherwise, car manufacturers would largely escape responsibility for injuries caused by their defective products and there would be less incentive to build safe vehicles.

This is a sensible approach. But Sen. Garrett Richter, R-Naples, and Rep. Marlene O'Toole, R-Lady Lake, have introduced bills (SB 744, HB 433) to allow carmakers to shift the blame for their unsafe cars back on to negligent drivers.

Child liability waivers

Christopher Jones died after being thrown off the all-terrain vehicle he was riding at a motorsports park. The Florida Supreme Court ruled in 2008 in Kirton vs. Fields that the liability waiver that Christopher's parent signed for the 14-year-old was invalid. The court said any such waiver is unenforceable as a matter of public policy.

Parents routinely sign liability waivers for their children in areas ranging from sports to amusement rides. Some businesses and charitable groups feared they would be put out of business by the threat of lawsuits any time a child is hurt. A more balanced remedy would allow parents to execute a waiver of liability for all inherent risks associated with an activity and still hold negligent amusement parks and other venues responsible for any injuries they cause.

But that is not what is being proposed by Rep. Mike Horner, R-Kissimmee, and Sen. Carey Baker, R-Eustis. The bills they offer (CS/HB 285, SB 1578) go too far in the other direction and would enable businesses to avoid virtually all liability. It wouldn't matter if an amusement park had faulty equipment or poorly trained staff. A liability waiver signed by a parent would absolve the business, regardless of how badly injured the child or how negligent the business.

The House bill goes so far as to say that a child who is sexually assaulted by staff would have to show that the business consented to or knowingly condoned the assault in order to successfully sue. What kind of incentive is that to ensure safe conditions and a professional workforce?

Slip and fall liability

Businesses such as supermarkets have a duty to clean spills and dropped food so customers do not slip and fall. But when injuries do happen, whose burden is it to demonstrate that the store was or wasn't properly maintained? Should the victim have to show the supermarket had knowledge of the spill, or should the business have to show it practices regular upkeep? That was the issue in Owens vs. Publix, a 2001 ruling by the Florida Supreme Court.

Evelyn Owens slipped on a piece of banana lying on the floor of a Publix supermarket and was injured. The high court said that because the supermarket is in a better position to know its own maintenance schedule, it has the burden of demonstrating that the store is kept in a safe condition. This would encourage store owners to keep their stores clean and safe and maintain housekeeping records.

But businesses claimed this looser standard opened them up to too much risk. In 2002, legislators modified the law to require that the injured person prove that the business was negligently maintained. But the injured person would not have to make the more difficult showing that the store had actual or constructive knowledge that a hazardous and slippery foreign substance was on the floor.

Now two bills, HB 689 and SB 1224, sponsored by Rep. Gary Aubuchon, R-Cape Coral and Sen. Andy Gardiner, R-Orlando, would return the burden to the injured person to show the store knew or should have known that the hazard was there. That burden is too great and reduces the incentive for stores to be vigilantly maintained. There is no reason to fiddle with the compromise in current law.

Florida law should protect people from negligent businesses that don't look out for the safety of their customers. It does that pretty well now, thanks to a compassionate high court.

Proposed legislation tilts too much toward business and away from injured 03/06/10 [Last modified: Friday, March 5, 2010 6:24pm]
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