All premises owners owe a duty to their invitees to exercise reasonable care to maintain their premises in a safe condition. See, e.g., Everett v. Restaurant & Catering Corp., 738 So.2d 1015, 1016 (Fla. 2d DCA 1999).
Despite this general proposition, when a person slips and falls on a transitory foreign substance, the rule has developed that the injured person must prove that the premises owner had actual knowledge or constructive knowledge of the dangerous condition “in that the condition existed for such a length of time that in the exercise of ordinary care, the premises owner should have known of it and taken action to remedy it.” Colon v. Outback Steakhouse of Florida, Inc., 721 So.2d 769, 771 (Fla. 3d DCA 1998).
Constructive knowledge may be established by circumstantial evidence showing that: (1) “the dangerous condition existed for such a length of time that in the exercise of ordinary care, the premises owner should have known of the condition;” or (2) “the condition occurred with regularity and was therefore foreseeable.” Brooks v. Phillip Watts Enter., Inc., 560 So.2d 339, 341 (Fla. 1st DCA 1990). In the latter category, evidence of recurring or ongoing problems that could have resulted from operational negligence or negligent maintenance becomes relevant to the issue of foreseeability of a dangerous condition.
All of these factors lead us to conclude that premises liability cases involving transitory foreign substances are appropriate cases for shifting the burden to the premises owner or operator to establish that it exercised reasonable care under the circumstances, eliminating the specific requirement that the customer establish that the store had constructive knowledge of its existence in order for the case to be presented to the jury. Presumptions, which are created either judicially or legislatively and arise from considerations of fairness, public policy, and probability, are used to allocate the burden of proof. See generally Charles W. Ehrhardt, Florida Evidence §301.1 (2000 ed.) Accordingly, we adopt the following holding to be applied to slip-and- fall cases in business premises involving transitory foreign substances. We hold that the existence of a foreign substance on the floor of a business premises that causes a customer to fall and be injured is not a safe condition and the existence of that unsafe condition creates a rebuttable presumption that the premises owner did not maintain the premises in a reasonably safe condition.
Thus, once the plaintiff establishes that he or she fell as a result of a transitory foreign substance, a rebuttable presumption of negligence arises. At that point, the burden shifts to the defendant to show by the greater weight of evidence that it exercised reasonable care in the maintenance of the premises under the circumstances. The circumstances could include the nature of the specific hazard and the nature of the defendant’s business. Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 331 (Fla. 2001). See also Melkonian v. Broward County Bd. of County Com’rs., 844 So.2d 785, 787 (Fla. 4th DCA 2003). However, see Florida Statutes §768.0710 (2005) (Burden of proof in claims of negligence involving transitory foreign objects or substances against persons or entities in possession or control of business premises.).
Transatory Foreign Substances, Defined: By “transitory foreign substance,” we refer generally to any liquid or solid substance, item or object located where it does not belong. See Black’s Law Dictionary 660 (7th ed. 1999) (A foreign substance is “[a] substance found . . . where it is not supposed to be found”). Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 317 (Fla. 2001).