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The Florida Retail Federation is making good on its threat to try to undo a landmark Florida Supreme Court ruling in November that gave injury victims stronger legal footing in slip-and-fall lawsuits against supermarkets and other premises owners. The Tallahassee, Fla.-based federation has drafted a two-page bill to make it harder for plaintiffs to get their negligence lawsuits in front of juries. The bill essentially would re-establish the tough common-law standard in place prior to the high court’s ruling. Bill Herrle, the federation’s vice president of government relations, says his organization has approached several lawmakers, including Rep. J.D. Alexander, R-Winter Haven, to sponsor the legislation. Alexander did not return calls for comment. The deadline for filing new legislation is today. In a unanimous 42-page ruling, the Florida Supreme Court rewrote the rules for slip-and-fall cases, dramatically shifting the burden of proof away from the plaintiff and onto the defendant. Now, if a customer takes a tumble it’s up to the store to prove that it exercised reasonable care to keep its floors clean. Plaintiff attorneys viewed the supreme court ruling as improving their clients’ chances in slip-and-fall cases by increasing the odds of getting the cases to juries. Defense lawyers warned that the decision would open the floodgates to frivolous lawsuits. Lobbyist Herrle says his organization is attempting to do “nothing more than return Florida statutes to where they were previous to Justice [Barbara] Pariente’s rewriting of the Florida statutes.” Pariente was the author of the opinion. Although Herrle declined to give the Florida Daily Business Review a copy of the proposed bill, he said it “simply reasserts that the burden of proof rests with the plaintiff as we have always understood civil litigation to be.” Herrle contends that some of the other justices worried about the language of the ruling. He cited Justice Major B. Harding’s statement in his concurring opinion: “The majority goes too far in deciding the cases at hand and essentially rewrites Florida’s law regarding slip and fall cases.” Two slip-and-fall lawsuits, which were dismissed by the lower courts, formed the basis for the supreme court’s ruling. The cases involved older female shoppers in grocery stores, who slipped on pieces of banana and suffered injuries. They filed negligence lawsuits and managed to get their cases before a jury. But before jurors began deliberations, the judges issued directed verdicts in favor of the defendants. The judges held that the plaintiffs failed to show that the banana was on the floor long enough to establish a duty on the part of the store management to discover the hazard and take remedial steps. The defect in the plaintiffs’ cases, they found, was lack of evidence that the banana turned brown while on the floor rather than before falling to the floor. For decades prior to the supreme court ruling, slip-and-fall plaintiffs in Florida had to prove that a premise’s manager knew about and failed to clean up a transient foreign substance on the floor in order to get their cases heard before a jury. In many cases, this turned on arcane and sometimes comical details about the nature and degree of the substance’s decay. News of the federation’s proposed bill came as a surprise to Bambi Blum, the solo Miami appellate lawyer who successfully argued the slip-and-fall issue before the supreme court. “To return things to the way they were would embroil us in the same quagmire as we were before, without clear-cut guidelines for trying these types of cases,” Blum says. Joseph Williams, who wrote an amicus brief on behalf of the Academy of Florida Trial Lawyers, says the federation’s attempts to legislatively override the supreme court is “an attempt by special interests and the state to insulate other special interests from having any responsibility for their actions.” Herrle insists that his group’s bill is not an attempt to overrule the supreme court. Rather, he says, it’s an effort to “exert the Legislature’s prerogative in writing statutes.” But Paul Jess, general counsel for the Academy of Florida Trial Lawyers, downplays both the legal impact of the Supreme Court ruling on slip-and-fall cases and the likelihood of Herrle’s bill passing. “Between reapportionment and the budget,” he says, “I think [the Legislature] will have plenty of controversy to keep it busy.”

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