DEMAND FOR SETTLEMENT - PREMISES LIABILITY / SLIP AND FALL

STATE OF FLORIDA

[FIRM NAME]
Attorneys at Law
[Street Address]
[City, Florida ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of Florida

DATE: [Date]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL

[Claims Representative Name / General Counsel]
[Property Owner / Management Company / Insurance Company Name]
[Street Address]
[City, State ZIP]

RE: PREMISES LIABILITY DEMAND - SLIP AND FALL
Our Client: [Client Full Name]
Date of Incident: [Date of Fall]
Location of Incident: [Full Address of Property]
Property Owner: [Property Owner Name]
Claim Number: [Claim Number, if assigned]

Dear [Recipient Name]:

This firm represents [Client Name] ("Claimant") for injuries sustained on [Date of Incident] at premises owned and/or controlled by your insured/client, located at [Property Address] in [City], Florida. This letter constitutes our formal demand for settlement.

I. FLORIDA-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations - IMPORTANT 2023 CHANGE

Effective March 24, 2023, the Florida statute of limitations for negligence actions was reduced to two (2) years. Fla. Stat. Section 95.11(3)(a).

For incidents occurring before March 24, 2023, the four-year statute may apply.

This claim arises from an incident that occurred on [Date], and therefore the limitations period expires on [Expiration Date].

B. Modified Comparative Negligence - IMPORTANT 2023 CHANGE

Effective March 24, 2023, Florida changed from pure comparative negligence to modified comparative negligence under Fla. Stat. Section 768.81.

Under the current law:
- A plaintiff may recover if their fault is not greater than the fault of all defendants combined
- If plaintiff is 50% or less at fault, damages are reduced by the percentage of plaintiff's fault
- If plaintiff is more than 50% at fault, recovery is completely barred

For causes of action accruing before March 24, 2023, the prior pure comparative negligence rule may apply.

Our client exercised reasonable care at all times and bears no responsibility for this incident.

C. Florida's Transitory Foreign Substance Statute - Fla. Stat. Section 768.0755

Florida's slip and fall law is governed by Fla. Stat. Section 768.0755, which imposes specific requirements on plaintiffs in transitory substance cases:

For Transitory Substances (Foreign Substances):

The statute requires the plaintiff to prove that:
1. The business establishment had actual or constructive knowledge of the dangerous condition; AND
2. The business establishment should have taken action to remedy it.

Constructive Knowledge may be proven by circumstantial evidence showing that:
- The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; OR
- The condition occurred with regularity and was therefore foreseeable

IMPORTANT: This statute eliminated the "mode of operation" doctrine that previously existed under Fla. Stat. Section 768.0710 (repealed 2010).

Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 521 (Fla. 4th DCA 2014) - Applied Section 768.0755 requirements.

D. Premises Liability Classification of Entrants

Florida follows the traditional common law classifications:

1. Invitees (Highest Duty)
An invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor. Post v. Lunney, 261 So. 2d 146 (Fla. 1972).

The landowner owes invitees a duty to:
- Maintain the premises in a reasonably safe condition
- Warn of concealed dangers known to the owner but unknown to the invitee
- Make reasonable inspections to discover possible dangerous conditions

2. Licensees
A licensee enters with permission for the visitor's own purposes. The owner owes a duty to:
- Warn of known dangers
- Refrain from willful or wanton conduct

3. Trespassers
Owed only a duty to refrain from intentional misconduct or gross negligence.

Our client was a business invitee entitled to the highest duty of care.

E. Notice Requirements Under Fla. Stat. Section 768.0755

CRITICAL: Under Florida law, proving notice is essential and often the most contested element.

Actual Knowledge: The owner or employees knew of the dangerous condition.

Constructive Knowledge requires proof of one of the following:
1. Duration-Based: The condition existed for such a length of time that, in the exercise of ordinary care, the business should have known of it; OR
2. Regularity-Based: The condition occurred with such regularity that it was foreseeable

Evidence relevant to constructive notice:
- Physical characteristics of the substance (dirty, tracked-through, dried, accumulated)
- Location in high-traffic area
- Time since last inspection
- Prior similar incidents
- Business practices that create recurring hazards

Delgado v. Laundromax, Inc., 65 So. 3d 1087 (Fla. 3d DCA 2011).

F. Mode of Operation Doctrine - NO LONGER APPLICABLE

Florida eliminated the mode of operation doctrine in 2010. The previous Fla. Stat. Section 768.0710 was repealed and replaced with Section 768.0755, which requires proof of actual or constructive notice in all cases.

The "mode of operation" concept may be relevant only to the "regularity and foreseeability" prong of constructive notice.

G. Open and Obvious Danger Doctrine

Under Florida law, a property owner generally has a reduced duty regarding open and obvious dangers. Ashcroft v. Calder Race Course, Inc., 492 So. 2d 1309 (Fla. 1986).

However, the doctrine is not absolute:
- The owner may still be liable for foreseeable harm
- Goes to comparative fault analysis under current law
- The "distraction" doctrine may apply

H. Natural Accumulation Rule - LIMITED APPLICATION IN FLORIDA

Given Florida's climate, the natural accumulation rule (for ice/snow) has very limited application. Water accumulation from rain is more relevant:

• Property owners have a duty to address foreseeable water accumulation
• No duty to remove natural accumulations during ongoing storms
• May have duty to address conditions created by property design or drainage
  Chaney v. Coastal Recreational Properties, Inc., 591 So. 2d 1073 (Fla. 2d DCA 1992).

I. Res Ipsa Loquitur

Florida recognizes res ipsa loquitur where:
1. The instrumentality causing the injury was in the defendant's exclusive control
2. The accident is one that ordinarily does not occur without negligence
3. The plaintiff did not contribute to the accident
Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So. 2d 1339 (Fla. 1978).

Limited Application in Slip and Fall: Generally not applicable to transitory substance cases where notice must be proven.

J. Landlord vs. Tenant Liability

Florida landlord liability principles:
- Common Areas: Landlord owes duty for areas retained under control. Mansur v. Eubanks, 401 So. 2d 1328 (Fla. 1981).
- Leased Premises: Generally tenant assumes control
- Landlord Liability: May exist for:
- Latent defects known at time of lease
- Conditions violating building codes
- Areas where landlord retained control
- Covenant to repair
- Fla. Stat. Section 83.51: Statutory duties for residential landlords

K. Government Immunity - Florida Sovereign Immunity

Claims against government entities are governed by Fla. Stat. Section 768.28:

Waiver of Immunity: Florida has waived sovereign immunity for tort claims within certain limits.

Damage Caps:
- $200,000 per person
- $300,000 per incident (total)
- Claims exceeding caps require legislative claims bill

Notice Requirement: 3 years from incident to file suit (same as general limitations period for government claims under prior law; verify current requirements).

Conditions Precedent: May require pre-suit notice procedures depending on entity.

L. Damage Caps - 2023 TORT REFORM

Non-Economic Damages (2023 Reform):

Fla. Stat. Section 768.0427 (effective March 24, 2023) imposes caps on non-economic damages in negligence cases involving death or catastrophic injury from medical negligence. Premises liability cases against non-medical defendants generally do not have non-economic damage caps.

Punitive Damages: Capped at the greater of:
- 3x compensatory damages, or
- $500,000
Fla. Stat. Section 768.73

M. Prejudgment Interest

Fla. Stat. Section 768.79 and Rule 1.442 - Offers of judgment with significant consequences for rejection.

II. PRESERVATION OF EVIDENCE - LITIGATION HOLD NOTICE

YOU ARE HEREBY DIRECTED TO IMMEDIATELY PRESERVE ALL EVIDENCE relating to this incident and the subject premises, including but not limited to:

• All surveillance video footage from the date of incident
• Surveillance footage from 48 hours before and after the incident
• Incident/accident reports
• Witness statements
• Maintenance logs and repair records
• Inspection records and checklists
• Prior complaints regarding hazardous conditions
• Prior incidents or falls at the same location
• Photographs of the incident location
• Written policies and procedures for maintenance
• Training records for employees
• All communications regarding the incident

Florida recognizes spoliation as an independent tort and basis for sanctions. Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005).

III. STATEMENT OF FACTS

A. The Premises

The incident occurred at [Property Address], which is [describe property type]. At all relevant times, [Property Owner Name] owned, operated, maintained, and/or controlled the subject premises.

B. The Hazardous Condition

On the date of the incident, a dangerous and hazardous condition existed on the premises, specifically:

[DESCRIBE THE HAZARDOUS CONDITION IN DETAIL - be specific about the nature of the transitory substance if applicable]

C. The Incident

On [Date of Incident], at approximately [Time], our client was lawfully present on the premises as a business invitee when [describe the fall in detail].

D. Notice Under Fla. Stat. Section 768.0755

Florida law requires proof of actual or constructive knowledge. We establish notice as follows:

[Choose applicable theory:]

Actual Knowledge: Your insured had actual knowledge of the hazardous condition because [describe evidence - e.g., employee awareness, prior complaints, created by employees].

Constructive Knowledge - Duration: The hazardous condition existed for such a length of time that your insured should have discovered and remediated it. Evidence includes:
- [Physical characteristics suggesting duration - dirty, dried, tracked-through, accumulated]
- [Time since last documented inspection]
- [Location in high-traffic area]

Constructive Knowledge - Regularity: The hazardous condition occurred with such regularity that it was foreseeable:
- [Evidence of prior similar incidents]
- [Business operations that create recurring hazards]
- [Pattern of complaints]

IV. LIABILITY ANALYSIS

A. Duty of Care

As a business invitee, our client was owed the highest duty of care under Florida law. Your insured had a duty to:
1. Maintain the premises in a reasonably safe condition
2. Make reasonable inspections to discover dangerous conditions
3. Warn of or remedy dangerous conditions that it knew or should have known of

B. Breach of Duty Under Fla. Stat. Section 768.0755

Your insured breached its duty of care by:
- Failing to maintain the premises in a reasonably safe condition
- Failing to conduct reasonable inspections
- Failing to discover the hazardous condition despite actual or constructive knowledge
- Failing to warn of or remedy the dangerous condition
- [Additional specific breaches]

C. Comparative Fault Analysis

Our client exercised reasonable care at all times:
- [Describe client's reasonable conduct]
- Our client had no reason to anticipate the dangerous condition
- The hazard was not open and obvious

Our client bears no fault whatsoever for this incident. Under Florida's modified comparative negligence rule (effective March 24, 2023), plaintiff fault greater than 50% bars recovery. Our client was entirely without fault.

D. Causation

The dangerous condition was the direct and proximate cause of our client's injuries.

V. INJURIES AND MEDICAL TREATMENT

A. Summary of Injuries

As a direct and proximate result of the fall, our client sustained the following injuries:

[LIST INJURIES]

B. Medical Treatment

Emergency Treatment:
[Describe emergency care]

Follow-Up Treatment:
[Describe ongoing treatment]

Current Status and Prognosis:
[Describe current condition and prognosis]

VI. DAMAGES

A. Medical Expenses

Future Medical Expenses: $[Amount]

B. Lost Wages

C. Pain and Suffering

[Describe pain and suffering]

D. Summary of Damages

VII. SETTLEMENT DEMAND

Based upon the clear liability of your insured, the severity of our client's injuries, and the substantial damages incurred, we hereby demand:

$[DEMAND AMOUNT]

This demand will remain open for thirty (30) days from the date of this letter, expiring on [Expiration Date].

Offer of Judgment Implications

Please be advised that if this matter proceeds to litigation and a formal offer of judgment is made and rejected pursuant to Fla. Stat. Section 768.79, significant cost and fee consequences may apply.

VIII. DOCUMENTATION ENCLOSED

• Complete medical records and bills
• Photographs of the incident location
• Photographs of injuries
• Incident report (if obtained)
• Employment records and lost wage documentation
• [Additional documentation]

IX. CONCLUSION

The evidence establishes clear liability on the part of your insured under Fla. Stat. Section 768.0755. Your insured had actual or constructive knowledge of the dangerous condition and failed to take action. This failure caused our client's serious injuries.

We urge prompt attention to this matter.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
Florida Bar No. [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

FLORIDA-SPECIFIC PRACTICE NOTES

• 2023 TORT REFORM: Major changes effective March 24, 2023 - SOL reduced to 2 years; changed to modified comparative negligence (51% bar). Verify date of accrual.

• Fla. Stat. Section 768.0755: Transitory foreign substance statute - MUST prove actual or constructive knowledge. Mode of operation eliminated in 2010.

• Constructive Knowledge: Two prongs - duration-based OR regularity-based. Focus evidence gathering on these elements.

• No Mode of Operation: Florida eliminated this doctrine in 2010. Evidence of business practices only relevant to "regularity and foreseeability."

• Spoliation: Florida recognizes independent tort claim for spoliation - Martino v. Wal-Mart.

• Government Claims: $200,000/$300,000 caps under Fla. Stat. Section 768.28.

• Offers of Judgment: Fla. Stat. Section 768.79 - Significant fee-shifting consequences.

• Venue: Fla. Stat. Section 47.011 - County where cause of action arose or where defendant resides.

• Prejudgment Interest: Fla. Stat. Section 55.03 - Available from date demand is made or suit filed.

• Bad Faith: Florida allows direct bad faith actions in certain circumstances - Berges v. Infinity Ins. Co., 896 So. 2d 665 (Fla. 2004).