Senate Bill sb2566

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    Florida Senate - 2005                                  SB 2566

    By Senator Webster





    9-1479A-05

  1                      A bill to be entitled

  2         An act relating to negligence; creating s.

  3         768.0755, F.S.; providing that if a person

  4         slips and falls on a transitory foreign

  5         substance in a retail establishment, the

  6         injured person must prove that the retail

  7         establishment had knowledge of the condition

  8         and that the condition existed for a sufficient

  9         time for the retail establishment to have taken

10         action to remedy the condition; providing that

11         constructive knowledge may be proven by

12         circumstantial evidence; amending s. 768.81,

13         F.S.; providing for the apportionment of

14         damages if an unnamed person commits an

15         intentional tort or a criminal act from which

16         the litigation arises; redefining the term

17         "negligence cases" to include claims for

18         negligent security in which the defendant is

19         sued for failing to prevent the commission of

20         an intentional tort; providing that the

21         apportionment of damages does not apply to any

22         action in which an intentional tortfeasor is

23         sued and seeks to apportion fault to a

24         negligent tortfeasor; repealing s. 768.0710,

25         F.S., relating to the duty to maintain premises

26         in a reasonably safe condition for the safety

27         of business invitees; reenacting s. 25.077,

28         F.S., relating to the duty of the clerk of

29         court to report certain information concerning

30         negligence cases, to incorporate the amendment

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    Florida Senate - 2005                                  SB 2566
    9-1479A-05




 1         made to s. 768.81, F.S., in a reference

 2         thereto; providing an effective date.

 3  

 4  Be It Enacted by the Legislature of the State of Florida:

 5  

 6         Section 1.  Section 768.0755, Florida Statutes, is

 7  created to read:

 8         768.0755  Premises liability for transitory foreign

 9  substances in a retail establishment.--If a person slips and

10  falls on a transitory foreign substance in a retail

11  establishment, the injured person must prove that the retail

12  establishment had actual or constructive knowledge of the

13  dangerous condition and that the condition existed for a

14  sufficient length of time so that, in the exercise of ordinary

15  care, the retail establishment should have known of the

16  dangerous condition and taken action to remedy it.

17  Constructive knowledge may be proven by circumstantial

18  evidence showing that:

19         (1)  The dangerous condition existed for such a length

20  of time that in the exercise of ordinary care, the retail

21  establishment should have known of the condition; or

22         (2)  The condition occurred with regularity and was

23  therefore foreseeable.

24         Section 2.  Subsections (3) and (4) of section 768.81,

25  Florida Statutes, are amended to read:

26         768.81  Comparative fault.--

27         (3)  APPORTIONMENT OF DAMAGES.--In cases to which this

28  section applies, the court shall enter judgment against each

29  party liable on the basis of the such party's percentage of

30  fault and not on the basis of the doctrine of joint and

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    Florida Senate - 2005                                  SB 2566
    9-1479A-05




 1  several liability, except as provided in paragraphs (a), (b),

 2  and (c):

 3         (a)  Where a plaintiff is found to be at fault, the

 4  following shall apply:

 5         1.  Any defendant found 10 percent or less at fault

 6  shall not be subject to joint and several liability.

 7         2.  For any defendant found more than 10 percent but

 8  less than 25 percent at fault, joint and several liability

 9  shall not apply to that portion of economic damages in excess

10  of $200,000.

11         3.  For any defendant found at least 25 percent but not

12  more than 50 percent at fault, joint and several liability

13  shall not apply to that portion of economic damages in excess

14  of $500,000.

15         4.  For any defendant found more than 50 percent at

16  fault, joint and several liability shall not apply to that

17  portion of economic damages in excess of $1 million.

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19  For any defendant under subparagraph 2., subparagraph 3., or

20  subparagraph 4., the amount of economic damages calculated

21  under joint and several liability shall be in addition to the

22  amount of economic and noneconomic damages already apportioned

23  to that defendant based on that defendant's percentage of

24  fault.

25         (b)  Where a plaintiff is found to be without fault,

26  the following shall apply:

27         1.  Any defendant found less than 10 percent at fault

28  shall not be subject to joint and several liability.

29         2.  For any defendant found at least 10 percent but

30  less than 25 percent at fault, joint and several liability

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    Florida Senate - 2005                                  SB 2566
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 1  shall not apply to that portion of economic damages in excess

 2  of $500,000.

 3         3.  For any defendant found at least 25 percent but not

 4  more than 50 percent at fault, joint and several liability

 5  shall not apply to that portion of economic damages in excess

 6  of $1 million.

 7         4.  For any defendant found more than 50 percent at

 8  fault, joint and several liability shall not apply to that

 9  portion of economic damages in excess of $2 million.

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11  For any defendant under subparagraph 2., subparagraph 3., or

12  subparagraph 4., the amount of economic damages calculated

13  under joint and several liability shall be in addition to the

14  amount of economic and noneconomic damages already apportioned

15  to that defendant based on that defendant's percentage of

16  fault.

17         (c)  With respect to any defendant whose percentage of

18  fault is less than the fault of a particular plaintiff, the

19  doctrine of joint and several liability shall not apply to any

20  damages imposed against the defendant.

21         (d)  In order to allocate any or all fault to a

22  nonparty, a defendant must affirmatively plead the fault of a

23  nonparty and, absent a showing of good cause, identify the

24  nonparty, if known, or describe the nonparty as specifically

25  as practicable, either by motion or in the initial responsive

26  pleading when defenses are first presented, subject to

27  amendment any time before trial in accordance with the Florida

28  Rules of Civil Procedure.

29         (e)  In order to allocate any or all fault to a

30  nonparty and include the named or unnamed nonparty on the

31  verdict form for purposes of apportioning damages, a defendant

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    Florida Senate - 2005                                  SB 2566
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 1  must prove at trial, by a preponderance of the evidence, the

 2  fault of the nonparty in causing the plaintiff's injuries.

 3         (f)  In any action to which this section applies, the

 4  trier of fact shall first determine if liability exists on the

 5  part of an unnamed person who committed an intentional tort or

 6  a criminal act from which the litigation arose. If such

 7  liability exists, as a part of the verdict form, the trier of

 8  fact shall apportion fault according to this determination.

 9         (4)  APPLICABILITY.--

10         (a)  This section applies to negligence cases.  For

11  purposes of this section, "negligence cases" includes, but is

12  not limited to, civil actions for damages based upon theories

13  of negligence, claims for negligent security and the like in

14  which the defendant is sued for failing to prevent or reduce

15  the likelihood of the commission of an intentional tort,

16  strict liability, products liability, professional malpractice

17  whether couched in terms of contract or tort, or breach of

18  warranty and like theories. In determining whether a case

19  falls within the term "negligence cases," the court shall look

20  to the substance of the action and not the conclusory terms

21  used by the parties.

22         (b)  This section does not apply to any action brought

23  by any person to recover actual economic damages resulting

24  from pollution, to any action in which an intentional

25  tortfeasor is sued and seeks to apportion fault to a negligent

26  tortfeasor, to any action based upon an intentional tort, or

27  to any cause of action as to which application of the doctrine

28  of joint and several liability is specifically provided by

29  chapter 403, chapter 498, chapter 517, chapter 542, or chapter

30  895.

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    Florida Senate - 2005                                  SB 2566
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 1         Section 3.  Section 768.0710, Florida Statutes, is

 2  repealed.

 3         Section 4.  For the purpose of incorporating the

 4  amendment made by this act to section 768.81, Florida

 5  Statutes, in references thereto, section 25.077, Florida

 6  Statutes, is reenacted to read:

 7         25.077  Negligence case settlements and jury verdicts;

 8  case reporting.--Through the state's uniform case reporting

 9  system, the clerk of court shall report to the Office of the

10  State Courts Administrator, beginning in 2003, information

11  from each settlement or jury verdict and final judgment in

12  negligence cases as defined in s. 768.81(4), as the President

13  of the Senate and the Speaker of the House of Representatives

14  deem necessary from time to time. The information shall

15  include, but need not be limited to: the name of each

16  plaintiff and defendant; the verdict; the percentage of fault

17  of each; the amount of economic damages and noneconomic

18  damages awarded to each plaintiff, identifying those damages

19  that are to be paid jointly and severally and by which

20  defendants; and the amount of any punitive damages to be paid

21  by each defendant.

22         Section 5.  This act shall take effect July 1, 2005.

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    Florida Senate - 2005                                  SB 2566
    9-1479A-05




 1            *****************************************

 2                          SENATE SUMMARY

 3    Provides that if a person slips and falls on a transitory
      foreign substance in a retail establishment, the injured
 4    person must prove the retail establishment had knowledge
      of the condition and that the condition existed for a
 5    sufficient time for the retail establishment to have
      taken action to remedy the condition. Provides that
 6    constructive knowledge may be proven by circumstantial
      evidence.  Provides for the apportionment of damages if
 7    an unnamed person commits an intentional tort or a
      criminal act from which the litigation arises. Provides
 8    that the apportionment of damages does not apply to any
      action in which an intentional tortfeasor is sued and
 9    seeks to apportion fault to a negligent tortfeasor. (See
      bill for details.)
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