Kenz v. Miami-Dade County
2013 Fla. App. LEXIS 6592
| Fla. Dist. Ct. App. | 2013Background
- Kenz slipped on liquid at Miami International Airport on May 13, 2008 and sued in July 2009 against Miami-Dade County and Unicco Service Co.
- At the time of the accident, Florida Statutes 768.0710 (2002) governed transitory foreign-substance negligence and did not require actual or constructive notice.
- On July 1, 2010, 768.0755 (2010) took effect, superseding 768.0710 and returning to the pre-Owens burden that the plaintiff must prove knowledge of the dangerous condition.
- Appellees moved on June 7, 2011 to apply 768.0755 retroactively; the trial court granted retroactive application on October 28, 2011.
- Final summary judgment for Appellees was entered on February 6, 2012 after a hearing; the trial court relied on retroactive application of 768.0755.
- Standard of review for summary judgment is de novo; applicability of the statute turns on whether it is substantive or procedural.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 768.0755 applies retroactively to Kenz. | Kenz contends 0755 is substantive and should not apply retroactively. | Appellees contend 0755 is procedural/remedial and should apply retroactively. | 0755 is procedural and retroactive; affirm summary judgment. |
| If 0710 governs, did there exist actual or constructive notice of the dangerous condition? | Kenz argues proof of notice is not required under 0710. | Appellees argue no evidence of notice; summary judgment proper. | Even under 0710, no notice shown; summary judgment proper. |
Key Cases Cited
- Smiley v. State, 966 So.2d 330 (Fla. 2007) (retroactivity depends on substantive vs. procedural nature)
- Weingrad v. Miles, 29 So.3d 406 (Fla. 3d DCA 2010) (burden of proof is procedural; hierarchy of law)
- Shaps v. Provident Life & Accident Insurance Co., 826 So.2d 250 (Fla.2002) (burden of proof generally procedural)
- Litvin v. St. Lucie Cnty. Sheriff’s Dep’t, 599 So.2d 1353 (Fla.1st DCA 1992) (evidentiary vehicle changes are procedural)
- Ziccardi v. Strother, 570 So.2d 1319 (Fla.2d DCA 1990) (burden-shifting provisions treated as procedural)
- Stuart L. Stein, P.A. v. Miller Indus., Inc., 564 So.2d 539 (Fla.4th DCA 1990) (burden of proof changes not substantive)
- City of Clermont v. Rumph, 450 So.2d 573 (Fla.1st DCA 1984) (statutory amendments affecting proof burdens are procedural)
- American Optical Corp. v. Spiewak, 73 So.3d 120 (Fla.2011) (retroactivity of asbestos-act impairment distinct from ordinary statutory changes)