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Florida Legislature’s Trifecta

In its most recent session, the Florida Legislature addressed three areas of state law that address problems which, in the past, have contributed to South Florida’s reputation as a Judicial Hellhole.

Last year, this report highlighted Florida’s lax standard for proof in the state’s all too common slip-and-fall claims. Under Florida law then, as a practical matter, retailers, restaurants, and grocery stores were liable for the alleged injuries of anyone who claimed to slip and fall on their property. This untenable situation arose out of a 2001 Florida Supreme Court decision that eliminated the need for a plaintiff to show that a property owner or his employees knew or should have known of the dangerous condition.

The high court’s decision required Florida business owners, all but impossibly, to prove a negative – namely, that they could not have prevented the accident. And because slip-and-falls are among the oldest frauds in the book, the decision immediately made Florida extremely attractive for slip-and-fall artists and their ensuing lawsuits. But thankfully for businesses, their employees and jobseekers, the Florida Legislature adopted, and Governor Charlie Christ signed, a new law providing a more logical framework for slip-and-fall liability. The new law restores a logical standard of constructive notice that protects businesses, upon which the state’s economy depends, from parasitic fraudsters without jeopardizing the meritorious claims of truly injured parties.

Florida legislators this year also restored the rights of parents to sign a liability waiver on behalf of their minor child, superseding a 2008 Florida Supreme Court ruling. The new law takes into account parental rights and the rights of children to have access to activities such as horseback and ATV riding, scuba diving and a variety of other sports, all of which include inherent risks. The law appropriately favors the interests of families over those of personal injury lawyers who would rather be free to file a lawsuit every time an active child skins a knee or breaks a bone.

Finally, with the urging of outgoing Attorney General Bill McCollum, Sunshine State lawmakers enacted legislation that ensures transparency when the state hires private-sector lawyers to represent the state. It also limits the amount private attorneys can siphon off the state’s recovery to no more than $50 million — an extraordinary amount to most people, but apparently not obscene in the minds of some contingency fee lawyers. The law will help avoid “pay-to-play” situations that have plagued a number of states, wherein elected officials coincidentally offer cushy contingency contracts to some of their biggest campaign contributors.

Florida Governor-elect Rick Scott’s pledge to work for a more fair and predictable civil justice system as a key initiative during his administration bodes well for the future.