IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

TERESA YATES, and her spouse, 

LEE YATES

Plaintiffs,

vs. CASE NO. 5:10-cv-226/RS-GRJ

WAL-MART STORES, INC., d/b/a

Walmart Supercenter Store #818, 

Defendant.

_________________________________________/

ORDER

Before me is Defendant’s Motion Seeking Determination That Provisions of 

Florida Statute §768.0755 Apply to Establish Plaintiffs’ Burden of Proof (Docs. 8 and 9). 

Because the Plaintiffs have not filed a response, this Motion is considered in light of N.D. 

Fla. Loc. R. 7.1(C). 

Background

This is a slip-and-fall case where Mr. Yates allegedly suffered injuries at 

Defendant’s place of business on July 3, 2006 (Doc. 3, attach. 1). Subsequent to this 

injury, the Florida legislature enacted a new statue changing what an “injured party must 

prove” in slip-and-fall cases. FLA. STAT. §768.0755 (2010). The statute took effect on 

July 1, 2010. Id. The sole issue presented by this motion is whether the burden of proof 

required by Fla. Stat. §768.0755 applies where the statute took effect after the injury 

giving rise to the cause of action, but before trial. 
Analysis

Whether a statute has retroactive effect turns on the character of the statute in 

question--whether the statute is either substantive or procedural. Smiley v. State, 966 So. 

2d 330, 334 (Fla. 2007). As a general rule, in the absence of clear legislative intent to the 

contrary, a law affecting substantive rights is presumed to apply prospectively. Arrow 

Air v. Walsh, 645 So. 2d 422, 424 (Fla. 1994). On the other hand, where statutes are 

procedural, no such presumption exists. Rather, “whenever possible, such [procedural] 

legislation should be applied to pending cases in order to fully effectuate the legislation's 

intended purpose.” Smiley, 966 So. 2d at 334 (citing Arrow Air, 654 So. 2d at 424). See 

also Cunningham v. State Plant Board, 112 So. 2d 905, 906 (Fla. Dist. Ct. App. 2d Dist. 

1959) (noting that statutes relating to “modes of procedure” do not come within the 

general rule against the retrospective operation of statutes). 

“A substantive law creates, defines, and regulates rights as opposed to procedural 

or remedial law which prescribes a method of enforcing the rights or obtaining redress for 

their invasion.” Richardson v. Honda Motor Co., 686 F. Supp. 303, 304 (M.D. Fla. 

1988) (citation omitted). See also Alamo Rent-A-Car v. Mancusi, 632 So. 2d 1352, 1358 

(Fla. 1994) (“[S]ubstantive law prescribes duties and rights and procedural law concerns 

the means and methods to apply and enforce those duties and rights.”). “Burden of proof 

requirements are procedural in nature.” Walker & La Berge, Inc. v. Halligan, 344 So. 2d 

239, 243 (Fla. 1977). See also Shaps v. Provident Life & Accident Ins. Co., 826 So. 2d 

250, 254 (Fla. 2002) (“[G]enerally in Florida the burden of proof is a procedural issue.”).
There is no doubt that the newly enacted legislation is a change to the burden of 

proof required in slip-and-fall cases. The prior statute, FLA. STAT. §768.0710 (2010) 

(repealed), was aptly titled “Burden of proof in claims of negligence involving transitory 

foreign objects or substances against persons or entities in possession or control of 

business premises.” Thus, the statute that took its place, Fla. Stat. § 768.0755, is 

procedural in nature and requires retroactive application. 

IT IS ORDERED that the Defendant’s Motion Seeking Determination That 

Provisions of Florida Statute §768.0755 Apply to Establish Plaintiffs’ Burden of Proof

(Docs. 8 and 9) is granted and I find that §768.0755 is applicable to this cause of action. 

ORDERED on October 27, 2010

/S/ Richard Smoak

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE