In general, there is a rebuttable presumption of negligence on the part of a rear driver in rear end collision cases. The burden rests on the rear driver to present evidence that “fairly and reasonably tends to show” that the presumption of negligence was misplaced. The presumption dissipates once evidence of the same is presented and the case then must go to the jury to hear further evidence, reconcile conflicts and evaluate the credibility of witnesses. Examples that have rebutted the presumption of negligence include: abrupt arbitrary stops in places where it could not reasonably be expected or unexpected change of lanes; mechanical failures which caused the rear driver to collide with the lead driver; and instances where the lead vehicle is illegally and therefore unexpectedly stopped.
One of the most useful defenses in premises liability cases is the defendant’s lack of notice of the allegedly dangerous condition. The Florida Legislature has favorably shifted the standard of proof in slip and fall cases in a statute that becomes effective July 1, 2010, under Florida Statute §768.0755. It will read:
Premises liability for transitory foreign substances in a business establishment
- 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 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.
- This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.
If a plaintiff is unable to establish the defendant had actual or constructive knowledge of the transitory foreign substance under the statute, plaintiff’s case should fail. Business owners will hopefully save time and expense in defending claims where the business owner had no actual or constructive knowledge of the alleged dangerous condition.
The Florida Supreme Court on April 1, 2010, in the case of Attorney’s Title Insurance Fund, Inc. v. Joseph Gorka, 35 Fla. L. Weekly S196 (Fla. April 1, 2010), held that joint offers of settlement that were conditioned on the mutual acceptance of both property owners were invalid and unenforceable for purposes of imposing attorney’s fees pursuant to the Offer of Judgment Statute. The Florida Supreme Court held that joint offers conditioned on the mutual acceptance of all joint offerees were invalid and unenforceable because they were conditioned such that neither offeree could independently evaluate or settle his or her respective claim by accepting the proposal.