Florida Statute 768.0710 (2002) provided, that in slip and fall cases, actual or constructive notice of the transitory foreign object or substance is not a required element of proof. In 2010, the Florida legislature repealed section 768.0710 (2002) and replaced it with section 768.0755 (2010), adding the requirement that an injured person must prove that the business establishment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. In Kenz v. Miami, 2013 Fla. App. LEXIS 6592, the Third District Court of Appeals ruled that section 768.0755 (2010) does not create a new element to a cause of action for negligence and merely codifies the means and method by which a plaintiff shows that the defendant-business establishment has breached its duty of care. Therefore, the Court concluded that the statute reflects a procedural change and should be applied retroactively to accidents that occurred prior to the statute’s effective date. In Pembroke Lakes Mall Ltd. v. McGruder, 2014 Fla. App. LEXIS 2578, the Forth District Court of Appeals ruled that section 768.0755 (2010) was far more than a simple procedural change, but rather is a substantive change creating a new element of proof in order for a plaintiff to establish negligence and therefore should not be applied retroactively. Accordingly, in the Third District Court of Appeals, which covers Miami-Dade and Monroe counties, trial courts must follow Kenz and apply Florida Statute 768.0755 (2010) retroactively requiring the plaintiff to prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it . In the Fourth District Court of Appeals, which covers Broward and Palm Beach counties, trial courts must now follow McGruder and not apply Florida Statute 768.0755 (2010) retroactively to accidents that occurred prior to the statute’s effective date.
