PERSONAL INJURY | PREMISES LIABILITY | SLIP AND FALL | FLORIDA LAW UPDATE
A Florida appellate decision clarifies the high evidentiary burden injured customers face. Plaintiffs must prove a store possessed actual or constructive knowledge of a hazardous condition before recovering damages.
Published: October 5, 2026
Case: Kincaid v. Wal-Mart, Inc. and Jane Doe, Store Manager
Citation: No. 4D2024-2245
Court: Florida Fourth District Court of Appeal
Decision Date: March 18, 2026
The Applicable Law
Florida Statute Section 768.0755 governs slip and fall cases involving transitory foreign substances in business establishments. This law, enacted in 2010, requires injured customers to prove that the business had either actual or constructive knowledge of the dangerous condition.
The statute states: «If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.»
Constructive knowledge – when a business should have known about a dangerous condition – can be proven by showing either:
- The dangerous condition existed for such a length of time that the business should have known about it through ordinary care, OR
- The condition occurred with regularity and was therefore foreseeable
Key Legal Rule: Business owners are not automatically liable for slip and fall injuries. Injured patrons must present evidence showing the business knew or should have known about the specific hazard.
What Happened in This Case
According to the facts described in the court’s opinion, the plaintiff was shopping in the meat department of a Walmart store in early 2021 when she slipped on a substance in an aisle. The record reflected that she did not fall completely but caught herself on her shopping cart. After regaining her balance, the evidence showed she noticed a «squashed» orange gel pack on the floor surrounded by a clear, jelly-like substance.
The court’s opinion described that the plaintiff observed other uncrushed gel packs «tucked under» the meat bunker. According to the allegations in the case, the incident resulted in significant medical treatment, including knee surgery, cervical spine fusion, lumbar fusion, and subsequent lumbar surgery. The evidence described in the court’s opinion was that although the plaintiff had visited this particular Walmart store many times before, she had never seen «anything like» the gel packs in the store.
A Walmart employee testified that orange gel packs were typically used by Walmart employees to absorb water from leaks or condensation and were placed in noticeable chains. The court noted that «gel packs could rupture—most commonly when stepped on by customers—and that a ruptured pack would leave a slippery gel substance on the floor.» However, the employee did not recall any ongoing leaks in the meat department or any prior slip-and-fall incidents in that department.
The plaintiff sued Walmart in December 2021 for failure to maintain the premises and failure to warn of a hazardous condition. Walmart moved for summary judgment in April 2024, and the circuit court granted the motion.
The Court’s Analysis
Summary Judgment Standard Under Florida Law
The court explained that Florida’s summary judgment rule was revised in 2021 to align with federal standards. As the court stated: «To survive summary judgment, the nonmoving party bearing the ultimate burden of proof at trial must come forward with evidence sufficient to withstand a directed verdict motion.»
The court emphasized that «there must be evidence on which the jury could reasonably find for the plaintiff» and that «the mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient.»
Important Distinction: Summary judgment is appropriate when no reasonable jury could find in favor of the injured person based on the evidence presented. Courts look for genuine disputes about material facts, not just any evidence that might support the plaintiff’s position.
Actual Knowledge Analysis
The court defined actual knowledge as existing «when the business or one of its agents knows of or creates the dangerous condition.» The plaintiff argued that Walmart had actual knowledge because employees knew they used gel packs to absorb water, knew the gel packs could rupture and leak a slippery substance, and failed to follow policies about warning signs.
However, the court rejected this argument, explaining: «Actual knowledge requires proof that an employee knew the specific dangerous condition existed, not merely that an employee performed an action that could create a hazard.»
The court cited several supporting cases, including Whitlow v. Tallahassee Memorial HealthCare, Inc., 421 So. 3d 729 (Fla. 1st DCA 2023), which noted that «an employee could knowingly push a stretcher and not necessarily know that he is leaving behind a potentially hazardous condition.»
As the court concluded: «The plaintiff did not point to evidence that Walmart or its employees, at the time of the plaintiff’s slip, knew of a ruptured gel pack in the aisle, or knew of a slippery gel substance in the aisle, or had put it there.»
Constructive Knowledge Analysis
For constructive knowledge, the plaintiff focused on arguing that dangerous conditions occurred with regularity and were foreseeable because Walmart employees used gel packs that could rupture if not monitored properly.
The court found this argument insufficient, noting: «The slip-and-fall incidents at this Walmart shown in the record were mostly in the front of the store from rain/rainwater, or customers leaving freezers open and creating condensation.» The Walmart employee «testified that while he had responded to numerous slip-and-falls throughout the store, slips on gel packs were rare and he could not remember any that were in the meat department.»
Critical Point: General knowledge that a type of hazard could occur is not enough. The business must have known that the specific dangerous condition existed or that substantially similar incidents occurred regularly in the same area.
The court referenced multiple cases supporting this principle, including Speedway, LLC v. Cevallos, 331 So. 3d 731, 735 (Fla. 4th DCA 2021), which required proof «that buildup actually occurred at the time and location of her fall and that it contributed to her fall.»
Policy Evidence Insufficient
The plaintiff also argued that Walmart’s policy requiring warning signs when using gel packs showed the company knew of foreseeable recurring hazards. The court rejected this argument, stating: «The existence of a (vaguely identified) clean-up or warning policy alone does not substitute for evidence that a dangerous condition occurred with sufficient regularity to impute constructive knowledge.»
The court cited Levine v. Costco Wholesale Group, 2023 WL 3600657, at *5 (S.D. Fla. March 6, 2023), which noted: «It seems counterintuitive and against public policy to construe Defendant’s safety policies against it, and thereby to use Defendant’s efforts to ensure safety on its premises as affirmative evidence that it had constructive notice of a hazard.»
Frequently Asked Questions
If I slip and fall in a store, is the store automatically responsible for my injuries?
No. Under Florida Statute Section 768.0755, you must prove that the store had actual or constructive knowledge of the specific dangerous condition that caused your fall. Simply proving that you were injured on their property is not enough to establish liability.
What’s the difference between actual and constructive knowledge in slip and fall cases?
Actual knowledge means the store or its employees specifically knew about the dangerous condition – they saw it, created it, or were told about it. Constructive knowledge means the store should have known about it because the condition existed for a long time or similar conditions occurred regularly in that location.
Can I use a store’s safety policies against them in a slip and fall case?
Generally, no. Florida courts have held that having safety policies doesn’t prove a store knew about specific dangerous conditions. In fact, courts are reluctant to penalize businesses for implementing safety measures, as this would discourage stores from adopting policies designed to protect customers.
How do I prove a store knew about the condition that caused my fall?
You need specific evidence, such as witness testimony that employees saw the hazard, surveillance footage showing how long the condition existed, incident reports about similar problems in the same area, or evidence that an employee created the dangerous condition. General testimony about potential hazards isn’t sufficient.
What if I can prove similar accidents happened before at the same store?
The accidents must have been substantially similar and occurred with regularity in the same general area where you fell. A few isolated incidents over many years typically won’t establish constructive knowledge. The pattern must show that the store should have anticipated and prevented the specific type of dangerous condition that caused your injury.
Slip and fall cases in Florida are complex and require specific evidence to prove a store’s knowledge of dangerous conditions. The legal standards are demanding, and success often depends on thorough investigation immediately after the incident to preserve evidence and identify witnesses.
At Maderal Byrne & Furst PLLC, we understand the intricacies of Florida’s premises liability laws and know how to build strong cases for injured clients. We work with investigators, safety experts, and medical professionals to gather the evidence needed to prove your case under Florida’s strict legal requirements.
Contact Maderal Byrne & Furst PLLC today for a free consultation.
Case Reference
Kincaid v. Wal-Mart, Inc. and Jane Doe, Store Manager, No. 4D2024-2245 (Fla. 4th DCA March 18, 2026)
Applicable Statutes:
- Florida Statute Section 768.0755 (2020)
Legal Disclaimer
LEGAL DISCLAIMER: This blog post is provided for general informational and educational purposes only. It does not constitute legal advice and does not create an attorney-client relationship. The law is subject to change, and the application of legal principles varies depending on the specific facts of each case. If you have questions about your specific situation, you should consult a licensed Florida attorney. This post discusses legal concepts and principles addressed in the cited court opinion and context of that opinion. It is not intended to make any assertions about the truth of any allegations or evidence relating to any party to that case.
Citations & Sources
- Kincaid v. Wal-Mart, Inc. and Jane Doe, Store Manager, No. 4D2024-2245 (Fla. 4th DCA March 18, 2026)
- Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)
- Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 424–26 (Fla. 4th DCA 2014)
- Whitlow v. Tallahassee Memorial HealthCare, Inc., 421 So. 3d 729 (Fla. 1st DCA 2023)
- Speedway, LLC v. Cevallos, 331 So. 3d 731, 735 (Fla. 4th DCA 2021)
- Florida Statute Section 768.0755 (2020)
Source URL: https://flcourts-media.flcourts.gov/content/download/2486233/opinion/Opinion_2024-2245.pdf
