Skip to Content

Trial Court Slips and Falls in Granting Motion for New Trial

December 6, 2016

On October 21, 2016, Florida’s Second DCA issued a decision in a slip-and-fall case against Wal-Mart that found the trial court erred when it set aside the jury verdict and granted Plaintiff’s motion for a new trial on the basis that Wal-Mart’s failure to follow its own safety policy clearly demonstrated a finding of negligence. Wal-Mart Stores, Inc. v. Wittke, 2016 WL 6137357.[1]

The plaintiff filed suit against Wal-Mart alleging negligence for injuries sustained in a slip-and-fall accident that occurred in December 2009. The case was ultimately tried in June 2015 and the jury returned a verdict in favor of Wal-Mart. The plaintiff moved for a new trial which the trial court granted, setting aside the jury verdict on the basis that, “the evidence presented to the jury during trial clearly demonstrated that [plaintiff’s] injuries were the result of [Wal-Mart’s] failure to follow its own safety policies and procedures.” Wal-Mart appealed.

The Second DCA reversed on appeal, holding that the trial court improperly equated the standard of care with compliance with internal policies and procedures, “effectively determining that a breach of policies and procedures is a per se breach of the standard of care.”

Inciting to prior case law the court held that internal safety policies do not themselves establish the standard of care owed to the plaintiff. The court reasoned that a written policy may be instructive in determining whether the defendant acted negligently, and may be admissible if deemed relevant to the standard of care.

Accordingly, the appellate court reversed the trial court’s order granting the motion for a new trial and remanded with instructions to reinstate the jury verdict in favor of the defendant.


Under Florida law the property owner or occupant owes a duty to its business invitees: 1) to warn of concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through the exercise of due care, and 2) to use ordinary care to maintain its premises in a reasonably safe condition. The recent decision in Wittke is consistent with existing Florida common law which has long held that internal safety policies do not establish the standard of care owed to business invitees. While safety policies may be relevant to the duty of care in a premises liability scenario, they do not replace the “true” duty of care.

Of course, a loss may still occur despite the existence of safety policies. To this end, Wittke could prove useful to practitioners who defend businesses in the event a plaintiff (or, as in this case, the trial judge) uses the defendant’s own safety policy as the benchmark for establishing the requisite duty of care.

[1] This opinion has not been released for publication in the permanent law reports. Until released, it is subject to revision or withdrawal.