Partly at Fault for Your Slip and Fall in Florida? You May Still Recover

Yes. Under Florida’s modified comparative negligence rule, you can still recover damages from a property owner even if you were partly at fault for your fall, as long as your share of fault is 50 percent or less. Your recovery is reduced by your percentage of fault, not eliminated. Only if a judge or jury finds you more than 50 percent responsible does Florida law bar you from recovering anything at all.

What is the actual rule, how much fault is too much?

Florida law follows a modified comparative negligence system under Fla. Stat. § 768.81(6). This means your ability to recover money depends on your share of fault. If you are found 50 percent or less at fault, you can still recover, but your award is reduced by your percentage of fault. For example, if you are 30 percent at fault, you recover 70 percent of your total damages. If you are exactly 50 percent at fault, you recover 50 percent. But if you are found 51 percent or more at fault, you recover nothing. This rule took effect March 24, 2023, under HB 837, replacing Florida’s old pure comparative negligence system. The change raised the stakes in every slip and fall case. You also have two years from the date of your fall to file a lawsuit if your injury occurred on or after March 24, 2023, per Fla. Stat. § 95.11. Medical malpractice claims under Chapter 766 follow different rules, but standard premises liability cases like store falls are governed by this new threshold.

How will the store or its insurance company argue that the fall was your fault?

In Hialeah, defense teams routinely argue that the injured person contributed to their own fall. Common arguments include footwear choice, phone use, carrying items that block vision, and ignoring warning signs. Because summer afternoon downpours often leave Hialeah store entrances wet, insurers may claim you should have anticipated wet floors. They may argue that wearing chancletas (flip-flops) shows poor judgment, since open-toe, backless sandals offer little traction on slick tile. If you were texting or scrolling while walking, they may say you were distracted. Carrying grocery bags that blocked your view of the floor could be used to assign you more fault. And if a wet-floor sign was present, they may argue it fulfilled the store’s duty and shifted all responsibility to you. Their goal is to push your fault above 50 percent so you recover nothing under Fla. Stat. § 768.81(6). These are arguments, not facts, a jury weighs them against the store’s own failures.

Does ‘open and obvious’ automatically kill my claim?

No. Florida recognizes the “open and obvious” doctrine, which says a property owner does not always have to warn about hazards that a reasonable person would easily notice. But this does not automatically end your claim. The store still has a duty to keep its premises reasonably safe, even for visible hazards. A clearly wet entrance or broken step may be obvious, but that does not excuse the owner from fixing it or taking steps to reduce the risk. Obviousness often goes to your comparative fault percentage, it may increase your share, but it does not necessarily bar your claim by itself. For example, a Hialeah store soaked by a daily summer rainstorm may have an “obvious” puddle at the door, yet still be liable if it had no mat, no drainage, and no staff checking the area. In many cases, obviousness is weighed in the fault calculation under Fla. Stat. § 768.81 rather than treated as a complete defense, although courts can find some conditions so obvious and not inherently dangerous that the owner is not liable.

A real-world example: how the percentages actually work in a Hialeah store fall

Picture this: After a heavy summer rain, a customer enters a grocery store on a busy Hialeah street. The tile near the door is soaked. The store placed a wet-floor sign but no mat, and its logs show no one inspected or dried the area in the past hour. The customer wears chancletas and carries two grocery bags. They slip and fracture a wrist. In scenario A, the store is 80 percent at fault and the customer 20 percent, the customer recovers 80 percent of their damages. In scenario B, the split is 60-40, the customer recovers 60 percent. But in scenario C, if the customer is found 55 percent at fault and the store 45 percent, the customer recovers nothing because they exceeded the 50-percent threshold under Fla. Stat. § 768.81(6). Every percentage point matters now more than ever. The chancletas and bags raise the customer’s fault; the missing mat, lack of inspection, and duration of the puddle raise the store’s. This is a hypothetical illustration only, actual outcomes depend on the specific evidence.

What evidence shifts fault back onto the store and away from you?

Key evidence can reduce your assigned fault and increase the store’s responsibility. First, maintenance and inspection logs may show the wet condition existed for a long time with no action taken. Second, surveillance video can prove how long the hazard was there and whether employees ignored it, but you must act fast, because stores may overwrite footage quickly. Third, incident reports or prior complaints may reveal a recurring problem with wet entrances during rain, showing the store knew or should have known about the risk. Fourth, physical conditions like the absence of mats, drainage, or non-slip flooring help prove the store failed its duty. Under Fla. Stat. § 768.0755, constructive knowledge exists if the hazard lasted long enough that ordinary care would have discovered it, or if similar conditions happened before. In Hialeah’s rainy season, a store with no plan for wet entrances has a weaker defense. A lawyer’s preservation letter, sent immediately, is often the only way to secure this evidence before it disappears.

What should you never say in the incident report, and what should you do instead?

The incident report the store writes becomes a key document for its insurer. Never say “I wasn’t paying attention” or “I was on my phone”, those words feed directly into a high fault percentage. Never say “I’m fine” or “It’s not serious,” because injuries like fractures or internal damage may not show up right away. Never sign a report without reading it, and never agree to give a recorded statement to the store’s insurance adjuster without talking to a lawyer first. An adjuster’s questions may draw out statements that suggest partial fault. Instead, stick to the facts: state where and how you fell, ask for a copy of the report before you leave, take photos of the hazard and surrounding area, get names of any witnesses, and see a doctor the same day. A medical record linking your injury to the fall date helps counter later claims that you exaggerated symptoms.

Frequently asked questions

I was wearing flip-flops when I fell, does that mean the store wins?
Not necessarily. Footwear is one factor in the fault analysis, but it does not automatically make you more than 50 percent at fault. The store’s actions, or lack of action, matter just as much.

The store put up a wet-floor sign. Does that mean I can’t sue?
No. A sign may reduce the store’s fault, but it does not eliminate its duty to maintain a reasonably safe entrance. If the hazard was severe or long-lasting, the store may still bear significant responsibility.

I was looking at my phone when I fell. Am I more than 50 percent at fault?
Possibly, but not certainly. Distraction is weighed against the store’s conduct. If the store ignored a known, recurring hazard, your phone use alone may not push you over the 50-percent threshold.

How long do I have to file a slip and fall lawsuit in Florida after a fall in a Hialeah store?
If your fall happened on or after March 24, 2023, you have two years from the date of the injury to file a lawsuit under Fla. Stat. § 95.11.

I was also in a car accident. Is the fault rule the same?
Yes. Florida’s modified comparative negligence rule under Fla. Stat. § 768.81(6) applies to most personal injury cases, including car crashes and slip and fall claims. The 51-percent bar works the same way.

Related reading: I fell in a store in Hialeah. Can I make a claim? · The 14-day PIP rule in Florida: what happens if you wait to see a doctor after a Hialeah car accident · How long do I have to file an injury lawsuit in Florida? The two-year rule after HB 837 · The driver who hit me in Hialeah has no insurance. What now?

Hurt in an accident in Hialeah? Call Wolfson & Leon at (305) 285-7071 for a free consultation. We speak Spanish, and there is no fee unless we win.