39 Fla. L. Weekly D1750a
Knowledge of dangerous condition — Constructive knowledge — No error in
granting summary judgment in favor of defendant where plaintiff failed to prove
that defendant had constructive knowledge of any alleged transitory foreign
substance requiring remedial action — Plaintiff failed to present any evidence
that wet conditions occurred with regularity in area where she fell, and also
failed to present any evidence that what plaintiff described as “unnoticeable”
water on floor, which allegedly caused fall, lasted for more than one to four
corporation, Appellee. 1st District. Case No. 1D13-3781. Opinion filed August
20, 2014. An appeal from the Circuit Court for Clay County. Don H. Lester,
Judge. Counsel: Michelline Haynes Ruth and Denise M. Stocker of the Law Office
of Ron Sholes, P.A., Jacksonville, for Appellant. Joseph T. Kissane, Blake H.
Cole and Keegan R. Shelby of Cole, Scott & Kissane, P.A., Jacksonville, for
judgment in favor of Appellee Winn-Dixie in a “slip-and-fall” negligence action.
For the reasons explained below, we affirm.
maintained the floor of its premises by permitting a dangerous condition (a wet
floor) to exist, and that this dangerous condition “existed for a sufficient
length of time” so that Winn-Dixie knew or should have known about it and
corrected it. Appellant alleged that Winn-Dixie’s failure to do so resulted in
her slipping and falling, causing injury and attendant damages. Winn-Dixie
denied any negligence.
accompanied a disabled companion for whom she was providing care to the
Winn-Dixie store to assist him with his shopping. When they arrived at the store
it was “[b]right and sunny,” and there had been no rain that morning. Appellant
went into the store to retrieve an electric cart for her companion, and the two
entered the store, spending approximately 30 minutes shopping.
vehicle, the weather, as Appellant described it, was “steamy,” although it did
not appear as if it had sprinkled or rained. They were outside the store for
five or ten minutes before Appellant went to return the electric cart. She
explained that she “got as far as the handicapped poles, and it started
misting.” Appellant testified that it was a very light, “misting” rain.
Appellant testified that less than one minute elapsed between the time she
started riding the cart back to the store and her arrival inside the front
entrance area. Appellant parked the cart, got off, and started walking toward
the door but slipped and fell when she was less than a foot away from the cart.
Appellant testified that she saw no water or other liquid substance before she
fell. She could not say whether she saw any such substance on the floor after
she fell, although she claimed she saw “wet tracks” from the wheels of the cart.
When asked if she saw any water tracks, Appellant responded: “I just know that
my shoes got damp from the floorboard of the electric cart” while bringing the
cart back to the store. Appellant described the condition that allegedly caused
her fall as “just drops of water” that were “unnoticeable”; thus, she did not
see the substance before her fall. Furthermore, she was not sure how long the
water was there.
surveillance camera that showed two of his assistants inspecting the area where
Appellant fell two to three minutes before the incident happened. When asked if
it rained on the day in question, Williams responded that he believed it did,
but “I don’t know if it just stopped or just started.” The video did not show
the area outside the store, but did show the incident. When asked why he
believed it rained, Williams responded: “Because in the video, it shows that we
had an umbrella rack up,” which are “plastic bags where your umbrella gets into,
and that’s to keep them from dripping.” These are put out “[b]efore a rain or
during a rain.”
a rain or after, we put a mat down on the entrance door, two cones, and the
umbrella rack.” He confirmed that he did not see the mats in place in the video
footage from the time of the incident. When asked why the mats were not down,
Williams answered, “I’d be just guessing. I don’t know if it had stopped
raining, if it hadn’t rained yet and they were in the process of doing it.” As
for if he knew why the umbrella rack was there, Williams replied, “I would be
just guessing, but I would assume it had just rained or was about to rain.”
Williams testified that there were no safety cones in place according to the
video. He could not recall if any previous falls had occurred in the area
Appellant fell, and he did not know what caused Appellant to fall.
arguing that the recently-enacted section 768.0755, Florida Statutes, requires
“proof of actual or constructive knowledge of the presence of a transitory
foreign substance,” which can be proven by “showing that the dangerous condition
existed for such a length of time that in the exercise of ordinary care, the
business establishment should have known of the condition . . . .” Applying this
statute to the evidence, Winn-Dixie argued that, viewing all facts in
Appellant’s favor, there was no evidence that Winn-Dixie had actual or
constructive knowledge of water on the floor before Appellant’s fall and that,
although Appellant “presented conflicting testimony concerning the potential
sources of the ‘unnoticeable’ drops of water on the floor where she fell, [this]
testimony is based on speculation and assumptions.”
under a constructive, not actual, knowledge theory of negligence, and relied on
her view of Williams’ testimony that Winn-Dixie had initiated, but did not
finish, its rainy-day procedure. Appellant argued that Winn-Dixie should have
either installed the warning cones or rainy-weather mats in the affected area.
In 2010, the Florida legislature enacted Section 768.0755, Florida
Statutes, the clear intent of which is to re-position the burden of proof in
constructive knowledge negligence actions fully onto a plaintiff. Although this
action arose before the enactment of Section 768.0755, it has now been held that
the statute has retroactive application. Kenz v. Miami-Dade County, [116
So. 3d 461] (Fla. 3rd DCA 2013). Clearly, therefore, the burden to demonstrate
constructive knowledge of the alleged dangerous condition herein lies with the
In the case at bar, there is competent, substantial, detailed
testimony confirming that it began to rain or mist less than one minute before
the plaintiff’s fall. The plaintiff’s only evidence to the contrary is the
speculative, vague testimony of the store director that it might have been
raining before the plaintiff’s fall, but it was equally possible that it had not
yet rained. There is no other evidence in the record to support a contention
that WD had constructive knowledge of the “un-noticeable” drops of water on the
Appellant’s burden under section 768.0755, and that it “believe[d] that if that
statute is to have any meaning, and if the clear legislative intent is to be
given any effect, the record facts in this case must defeat the plaintiff’s
claim.” The court denied Appellant’s motion for rehearing, and this appeal
Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). Summary
judgment is proper “if the pleadings and summary judgment evidence on file show
that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). On
reviewing a summary judgment order, an appellate court must “view the facts in a
light most favorable to the nonmoving party . . . .” Maronda Homes, Inc. of
Fla. v. Lakeview Reserve Homeowners Ass’n, Inc., 127 So. 3d 1258, 1268 (Fla.
(1) If a person slips and falls on a transitory foreign substance in
a business establishment, the injured person must prove that the business
establishment had actual or constructive knowledge of the dangerous condition
and should have taken action to remedy it. Constructive knowledge may be
proven by circumstantial evidence showing that:
(a) The dangerous condition existed for such a length of time that,
in the exercise of ordinary care, the business establishment should have known
of the condition; or
(b) The condition occurred with regularity and was therefore
(2) This section does not affect any common-law duty of care owed by
a person or entity in possession or control of a business premises.
theory of negligence. Viewing the evidence in the light most favorable to
Appellant, she failed to overcome her statutory burden of establishing such
she herself described as unnoticeable drops of water on the floor where she
slipped and fell. Appellant argues that Winn-Dixie had constructive knowledge of
this “unnoticeable” dangerous condition “based on the fact that the condition
occurred with such frequency” that it should have known of its existence. Below,
Appellant argued that “the presence of the umbrella racks [was] constructive
knowledge of the dangerous condition.” Neither the record nor the law supports
policy to implement its “rainy-day” plan of putting out the umbrella bag rack,
orange cones, and floor mats when it either looked as though it was about to
rain, or was already raining. Because the umbrella bag rack was visible in the
surveillance video, he assumed it was either raining or about to rain at the
time Appellant fell. He also testified that the video showed two of his
employees inspecting the area where Appellant fell just three minutes before it
happened. Thus, when considering the uncontradicted aspects of Williams’
testimony as well as Appellant’s testimony, the presence of the umbrella bag
rack indicated that the store was aware that it looked as though it was about to
rain, or perhaps had just started raining. According to Appellant, however, it
had only started raining (or “misting”) about one minute before she fell.
Therefore, at most, the unnoticeable drops of water were on the floor area in
question less than four minutes before the fall.
that the alleged dangerous condition must exist “for such a length of time that,
in the exercise of ordinary care, the business establishment should have known
of the condition” before constructive knowledge of the condition can be imputed.
Support for this conclusion is found in Gaidymowicz v. Winn-Dixie Stores,
Inc., 371 So. 2d 212, 214 (Fla. 3d DCA 1979), in which the evidence showed
that the store manager had been down the aisle only five minutes before the
customer’s fall, finding nothing. The court held that this was not a sufficient
time to correct the dangerous condition.
complete its rainy-day precautions before she fell. This ignores the statute’s
provision that, unless a “condition occur[s] with regularity and was therefore
foreseeable,” the duty to act is activated by actual or constructive notice of
the presence of a transitory foreign substance, not simply the possibility that
it might become present. Here, not only did Appellant fail to present any
evidence that wet conditions occurred with regularity in the area where she
fell, she also failed to present any evidence that the alleged wet condition
lasted for more than one to four minutes. Also, although “[e]vidence that no
inspection had been made during a particular period of time prior to an accident
may warrant an inference that the dangerous condition existed long enough so
that the exercise of reasonable care would have resulted in
discovery,”2 here, there was an inspection
of the subject area about three minutes before the incident, and Appellant
testified that the “misting” started only one minute before the incident.
Walton Beach, Inc., 138 So. 3d 531 (Fla. 1st DCA 2014), where this court
held that the trial court erred by entering summary judgment in a slip-and-fall
case. In Feris, this court determined that summary judgment was improper
because there was circumstantial evidence of “active” negligence by employees of
the premises (i.e., not enforcing the rule against allowing drinks on the dance
floor), a recurrence of spills on the dance floor, and the existence of liquid
on the floor for a sufficient amount of time so as to put the premises owner on
notice. 138 So. 3d at 535.
question or of prior incidents in that area. At most, the alleged “unnoticeable”
water was present for no more than four minutes. Nor was there any evidence of
active negligence by Winn-Dixie employees.
to Appellant, we hold that Appellant failed to overcome the statutory burden of
proving that Winn-Dixie had constructive knowledge of any alleged “transitory
foreign substance” requiring remedial action, and affirm the trial court’s entry
of final summary judgment.
conclusion concerning the retroactive effect of section 768.0755 in Feris v.
Club Country of Fort Walton Beach, Inc., 138 So. 3d 531 (Fla. 1st DCA 2014).
Appellant states that the statute is the “current standard for premises
liability actions . . . .” Thus, any argument that the trial court applied the
incorrect statute is waived, and we need not decide the issue here.
Inc., 358 So. 2d 1385, 1387 (Fla. 4th DCA 1978).
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