The legal system in our country can vary from one day to the next as to whether you have a case or a cause of action against one defendant or another and what the burden of proof will be in the courtroom.
If you cause of action arose when the law said “substantially certain to happen” and the law changed to “virtually certainty to happen”, the burden of proof changes for the injured worker as happened in the workers compensation laws.
The same thing occurred with the law regarding sinkhole coverage in Florida when the law changed to require damage to the structural foundation of the slap before your policy required the homeowner’s carrier to pay the first dollar.
The first thing your lawyer do is to examine whether the statute itself states whether the statute is intended to be prospective or retroactive.
The Florida Supreme Court has adopted a two-pronged test for determining whether a statute may apply retroactively: a reviewing court must ascertain (1) whether the Legislature clearly expressed its intent that the statute have retroactive application; and if so, (2) whether retroactive application would violate any constitutional principles.
The Court noted that “the Legislature’s inclusion of an effective date for an amendment is considered to be evidence rebutting intent for retroactive application of a law,” but provided that ” ‘clearly expressed’ legislative intent for retroactive application,” may supersede the presumption against retroactive application raised by inclusion of an effective date.
Finally, the Court observed that courts may apply statutory construction of the “language, structure, purpose, and legislative history of the enactment” to determine if a statute is intended to be retroactive.
This is presently seen in the augments that Plaintiff’s lawyer often have on each slip and fall case with the defense bar as to whether F.S. 768.0755 which replaced the repealed section 768.0710 is prospective only or retroactive. The new statute expressly states that the former statue is repealed; and section 3 provides that the new statute shall take effect July 1, 2010.
Thus, whenever the circumstance do not establish “clear evidence of legislative intent for retroactivity,” which is required under the first prong of the retroactivity test required by Devon Neighborhood, 67 So. 3d at 196, is not present.
However, the defense bar will contend that F.S. 768.055 is procedural rather than substantive and request the trial court to apply the statue retroactively.
In Kenz v. Miami-Dade County, 116 So. 3d 461 (Fla. 3d DCA 2013), the Third District reviewed whether the trial court erred by granting summary judgment for the defendant county based on the court’s retroactive application of section 768.0755, instead of the older section 768.0710. Kenz, 116 So. 3d at 462.
The Kenz court did not apply the first prong of the two-part test for retroactivity, but confined its analysis solely to “whether the statute sought to be applied retroactively is substantive in nature, or procedural/remedial in nature.” Kenz held that substantive changes require clear legislative intent for retroactive application, but “a procedural/remedial statute ‘should be applied to pending cases in order to fully effectuate the legislation’s intended purpose.’ ” Id. at 463-64 (quoting Smiley v. State, 966 So. 2d 330, 334 (Fla. 2007)).
Whether the statute will apply retroactively or prospectively may depend on how the sitting judge feels about whether the statue is substantive or procedural.
A recent Federal decision out of the Middle District of Florida appears to have followed the decision from the court in Kenz v. Miami-Dade County, 116 So. 3d 461 (Fla. 3d DCA 2013). In Michael Vallot v. Logans Roadhouse, the Plaintiff did not know (1 ) if he ever saw the greasy substance before he fell; ( 2) how the greasy substance came to be on the floor; ( 3 ) what caused the greasy substance to be on the floor; ( 4 ) if the substance was there one minute before he fell; (5) whether any employees knew that the substance was on the floor and ( 6 ) who spilled the substance or how it got to be on the floor. Here, the court felt that there was no evidence that Logan had actual or constructive knowledge the substance on the floor under either F.S. 768.0755 or former F. S. 768.710.