42
Fla. L. Weekly D2599a
Fla. L. Weekly D2599a
Torts
— Premises liability — Slip and fall — Trial court properly entered summary
judgment for defendant in action alleging that plaintiff slipped and fell on
liquid substance in defendant’s store where no evidence was presented that
defendant had actual or constructive knowledge of the liquid substance on the
floor — There is no requirement that a summary judgment contain a statement of
the court’s basis for awarding summary judgment
— Premises liability — Slip and fall — Trial court properly entered summary
judgment for defendant in action alleging that plaintiff slipped and fell on
liquid substance in defendant’s store where no evidence was presented that
defendant had actual or constructive knowledge of the liquid substance on the
floor — There is no requirement that a summary judgment contain a statement of
the court’s basis for awarding summary judgment
BLANCA LAGO, Appellant, v. COSTCO
WHOLESALE CORPORATION, Appellee. 3rd District. Case No. 3D16-1899. L.T. Case
No. 15-12095. December 13, 2017. An Appeal from the Circuit Court for
Miami-Dade County, Thomas J. Rebull, Judge. Counsel: Kula & Associates,
Elliot B. Kula, W. Aaron Daniel, and William D. Mueller, for appellant. Kelley
Kronenberg, Harold S. Stevens, and Jason E. Handin (Fort Lauderdale), for
appellee.
WHOLESALE CORPORATION, Appellee. 3rd District. Case No. 3D16-1899. L.T. Case
No. 15-12095. December 13, 2017. An Appeal from the Circuit Court for
Miami-Dade County, Thomas J. Rebull, Judge. Counsel: Kula & Associates,
Elliot B. Kula, W. Aaron Daniel, and William D. Mueller, for appellant. Kelley
Kronenberg, Harold S. Stevens, and Jason E. Handin (Fort Lauderdale), for
appellee.
(Before ROTHENBERG, C.J., and SCALES
and LUCK, JJ.)
and LUCK, JJ.)
(LUCK, J.) Blanca Lago slipped on a
liquid substance and fell and broke her knee as she was walking into a Costco
Wholesale Corporation store in Miami. The fall resulted in Lago’s lawsuit
against Costco for negligent maintenance of its property. Lago appeals the
trial court’s order granting summary judgment in favor of Costco, and we affirm
because there was no genuine dispute of material fact about Costco’s knowledge
of the liquid substance on its entranceway floor.
liquid substance and fell and broke her knee as she was walking into a Costco
Wholesale Corporation store in Miami. The fall resulted in Lago’s lawsuit
against Costco for negligent maintenance of its property. Lago appeals the
trial court’s order granting summary judgment in favor of Costco, and we affirm
because there was no genuine dispute of material fact about Costco’s knowledge
of the liquid substance on its entranceway floor.
Factual
Background and Procedural History
Background and Procedural History
On March 7, 2015, Lago’s neighbor
invited Lago to accompany her to Costco at 13450 Southwest 120th Street, in
Miami. Lago had never been to Costco before. When they arrived, the neighbor
went to get a shopping cart and Lago started to walk towards the entrance. As
she walked, Lago felt her right leg go out from under her and she fell on her
left knee.1 Lago screamed in pain and a crowd
surrounded her. A Costco employee helped Lago up and sat her near the entrance
until an ambulance came to take her to the hospital.
invited Lago to accompany her to Costco at 13450 Southwest 120th Street, in
Miami. Lago had never been to Costco before. When they arrived, the neighbor
went to get a shopping cart and Lago started to walk towards the entrance. As
she walked, Lago felt her right leg go out from under her and she fell on her
left knee.1 Lago screamed in pain and a crowd
surrounded her. A Costco employee helped Lago up and sat her near the entrance
until an ambulance came to take her to the hospital.
Lago sued Costco for the injuries
she suffered from the fall. Lago alleged that she fell on a slippery liquid
substance, and it was Costco’s duty as a business owner to make sure there was
nothing on its floor that could cause invitees like Lago to hurt themselves.
she suffered from the fall. Lago alleged that she fell on a slippery liquid
substance, and it was Costco’s duty as a business owner to make sure there was
nothing on its floor that could cause invitees like Lago to hurt themselves.
Costco moved for summary judgment
because there was no genuine issue of material fact about the company’s actual
or constructive knowledge of the slippery liquid substance. The trial court
granted Costco’s motion, and entered summary judgment in favor of the company.
This appeal followed.
because there was no genuine issue of material fact about the company’s actual
or constructive knowledge of the slippery liquid substance. The trial court
granted Costco’s motion, and entered summary judgment in favor of the company.
This appeal followed.
Standard
of Review
of Review
Our standard in reviewing the trial court’s summary judgment
order is de novo. In evaluating the trial court’s order, we must determine if
the record evidence presented to the trial court shows there is no genuine
dispute regarding the material facts. We view the facts in the light most
favorable to . . . the non-moving party below.
order is de novo. In evaluating the trial court’s order, we must determine if
the record evidence presented to the trial court shows there is no genuine
dispute regarding the material facts. We view the facts in the light most
favorable to . . . the non-moving party below.
Delgado v. Laundromax, Inc., 65 So. 3d 1087, 1088 (Fla. 3d DCA 2011) (citations
omitted).
omitted).
Discussion
Lago contends the trial court erred
by: (1) entering an unelaborated order; and (2) granting summary judgment for
Costco on the notice issue based solely on Lago’s deposition. As to Lago’s
first contention, we have said that “[w]hile it might be desirable for the
trial judge to specify his reasons for granting or denying a summary judgment there
does not appear to be any rule or decision that requires him to do so.” Newman
v. Shore, 206 So. 2d 279, 280 (Fla. 3d DCA 1968); see also Reid
v. Associated Eng’g of Osceola, Inc., 295 So. 2d 125, 127 (Fla. 4th DCA
1974) (“The summary judgment does not contain any statement as to the basis
upon which the court determined that the defendants were entitled to judgment
as a matter of law. There is no requirement that such be done, and we are not
critical of its omission. We merely note in passing that if trial courts
followed the practice of setting forth the basis of their holding in granting
summary judgments (when such was not otherwise clearly evident from the
record), it would facilitate appellate review.”). Here, even if the order
didn’t say so, the reason for granting summary judgment was clear from Costco’s
motion, Lago’s response, and the transcribed summary judgment hearing.
by: (1) entering an unelaborated order; and (2) granting summary judgment for
Costco on the notice issue based solely on Lago’s deposition. As to Lago’s
first contention, we have said that “[w]hile it might be desirable for the
trial judge to specify his reasons for granting or denying a summary judgment there
does not appear to be any rule or decision that requires him to do so.” Newman
v. Shore, 206 So. 2d 279, 280 (Fla. 3d DCA 1968); see also Reid
v. Associated Eng’g of Osceola, Inc., 295 So. 2d 125, 127 (Fla. 4th DCA
1974) (“The summary judgment does not contain any statement as to the basis
upon which the court determined that the defendants were entitled to judgment
as a matter of law. There is no requirement that such be done, and we are not
critical of its omission. We merely note in passing that if trial courts
followed the practice of setting forth the basis of their holding in granting
summary judgments (when such was not otherwise clearly evident from the
record), it would facilitate appellate review.”). Here, even if the order
didn’t say so, the reason for granting summary judgment was clear from Costco’s
motion, Lago’s response, and the transcribed summary judgment hearing.
As to Lago’s second contention,
Costco, as the defendant moving for summary judgment, had to show there was no
genuine issue of material fact on one or more of the elements of Lago’s
negligence claim: (a) Costco owed a duty to Lago; (b) it breached that duty;
(c) there was a causal connection between Costco’s breach and Lago’s knee
injury; and (d) Lago suffered damages as a result of the breach. See Wilson-Greene
v. City of Miami, 208 So. 3d 1271, 1274 (Fla. 3d DCA 2017) (“A negligence
claim has four elements: (1) a duty by defendant to conform to a certain
standard of conduct; (2) a breach by defendant of that duty; (3) a causal
connection between the breach and injury to plaintiff; and (4) loss or damage
to plaintiff.”); Delgado, 65 So. 3d at 1089 (“The elements of negligence
are: (1) a duty to the plaintiff; (2) the defendant’s breach of that duty; (3)
injury to the plaintiff arising from the defendant’s breach; and (4) damage
caused by the injury to the plaintiff as a result of the defendant’s breach of
duty.”). Normally, the duties owed by a business to one of its invitees are:
“(1) to take ordinary and reasonable care to keep its premises reasonably safe
for invitees; and (2) to warn of perils that were known or should have been
known to the owner of which the invitee could not discover.” Delgado, 65
So. 3d at 1089.
Costco, as the defendant moving for summary judgment, had to show there was no
genuine issue of material fact on one or more of the elements of Lago’s
negligence claim: (a) Costco owed a duty to Lago; (b) it breached that duty;
(c) there was a causal connection between Costco’s breach and Lago’s knee
injury; and (d) Lago suffered damages as a result of the breach. See Wilson-Greene
v. City of Miami, 208 So. 3d 1271, 1274 (Fla. 3d DCA 2017) (“A negligence
claim has four elements: (1) a duty by defendant to conform to a certain
standard of conduct; (2) a breach by defendant of that duty; (3) a causal
connection between the breach and injury to plaintiff; and (4) loss or damage
to plaintiff.”); Delgado, 65 So. 3d at 1089 (“The elements of negligence
are: (1) a duty to the plaintiff; (2) the defendant’s breach of that duty; (3)
injury to the plaintiff arising from the defendant’s breach; and (4) damage
caused by the injury to the plaintiff as a result of the defendant’s breach of
duty.”). Normally, the duties owed by a business to one of its invitees are:
“(1) to take ordinary and reasonable care to keep its premises reasonably safe
for invitees; and (2) to warn of perils that were known or should have been
known to the owner of which the invitee could not discover.” Delgado, 65
So. 3d at 1089.
But in Florida Statutes section
768.0755 the legislature modified a business’s duties when its invitees are
injured by “transitory foreign substances.”2 See Walker v. Winn-Dixie Stores,
Inc., 160 So. 3d 909, 911 (Fla. 1st DCA 2014) (“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.” (quotation omitted)); see also
Encarnacion v. Lifemark Hosps. of Fla., 211 So. 3d 275, 278 (Fla. 3d DCA
2017) (“[W]here a business invitee slips and falls on a ‘transitory substance’
in a business establishment . . . proof of the breach element of the claim
against an owner of the establishment is statutorily constrained . . . .”).
Section 768.0755 provides:
768.0755 the legislature modified a business’s duties when its invitees are
injured by “transitory foreign substances.”2 See Walker v. Winn-Dixie Stores,
Inc., 160 So. 3d 909, 911 (Fla. 1st DCA 2014) (“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.” (quotation omitted)); see also
Encarnacion v. Lifemark Hosps. of Fla., 211 So. 3d 275, 278 (Fla. 3d DCA
2017) (“[W]here a business invitee slips and falls on a ‘transitory substance’
in a business establishment . . . proof of the breach element of the claim
against an owner of the establishment is statutorily constrained . . . .”).
Section 768.0755 provides:
(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:
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
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 foreseeable.
condition occurred with regularity and was therefore foreseeable.
§ 768.0755(1), Fla. Stat. (2015). In
moving for summary judgment, Costco had to show there was no genuine dispute
about its actual or constructive knowledge of the slippery liquid substance on
the entranceway floor.
moving for summary judgment, Costco had to show there was no genuine dispute
about its actual or constructive knowledge of the slippery liquid substance on
the entranceway floor.
Under similar facts, we have
affirmed summary judgment for business establishments in slip-and-fall cases.
In Delgado, decided before the effective date of section 768.0755, the
plaintiff testified
affirmed summary judgment for business establishments in slip-and-fall cases.
In Delgado, decided before the effective date of section 768.0755, the
plaintiff testified
she did
not: (1) know where the water came from; (2) see water anywhere else other than
where she slipped; (3) know how long the water was on the floor before she
slipped; or (4) know of anyone at Laundromax who knew the water was on the
floor before she walked in. Further, there is no evidence in the record that it
was raining or that it had recently rained . . . .
not: (1) know where the water came from; (2) see water anywhere else other than
where she slipped; (3) know how long the water was on the floor before she
slipped; or (4) know of anyone at Laundromax who knew the water was on the
floor before she walked in. Further, there is no evidence in the record that it
was raining or that it had recently rained . . . .
Delgado, 65 So. 3d at 1090. In other words, the court said, the
“only evidence” was “(1) that the floor was wet; and (2) [the plaintiff]
slipped and fell.” Id. From this, the court agreed with the trial court
that the business defendant was not negligent. Id. Without more
evidence, “the mere presence of water on the floor was not enough to establish
constructive notice.” Id.
“only evidence” was “(1) that the floor was wet; and (2) [the plaintiff]
slipped and fell.” Id. From this, the court agreed with the trial court
that the business defendant was not negligent. Id. Without more
evidence, “the mere presence of water on the floor was not enough to establish
constructive notice.” Id.
Also, in Encarnacion, we
described the summary judgment evidence, which consisted of the plaintiff’s
deposition testimony and answers to interrogatories, this way:
described the summary judgment evidence, which consisted of the plaintiff’s
deposition testimony and answers to interrogatories, this way:
there is
no evidence in the record suggesting the existence of the foreign substance on
the floor was known to the hospital. In the absence of evidence of actual
knowledge, it was incumbent on the plaintiff to come forward with
circumstantial evidence that Palmetto General Hospital, in the exercise of
ordinary caution, should have known of the condition. In this case, however,
the answers to interrogatories and depositions do not establish how long the
substance had been on the floor.
no evidence in the record suggesting the existence of the foreign substance on
the floor was known to the hospital. In the absence of evidence of actual
knowledge, it was incumbent on the plaintiff to come forward with
circumstantial evidence that Palmetto General Hospital, in the exercise of
ordinary caution, should have known of the condition. In this case, however,
the answers to interrogatories and depositions do not establish how long the
substance had been on the floor.
Encarnacion, 211 So. 3d at 278. The plaintiff’s testimony did present
additional facts that “the substance on the floor was ‘oily,’ ‘dirty’, and
‘dark,’ ” but even that was “insufficient to create a jury issue.” Id.; see
also McCarthy v. Broward College, 164 So. 3d 78, 81 (Fla. 4th DCA
2015) (affirming summary judgment for the business establishment because the
plaintiff “was unable to identify the liquid in the elevator, determine how
long it had been there, or establish if anyone at Broward College had actual or
constructive notice of its presence”).
additional facts that “the substance on the floor was ‘oily,’ ‘dirty’, and
‘dark,’ ” but even that was “insufficient to create a jury issue.” Id.; see
also McCarthy v. Broward College, 164 So. 3d 78, 81 (Fla. 4th DCA
2015) (affirming summary judgment for the business establishment because the
plaintiff “was unable to identify the liquid in the elevator, determine how
long it had been there, or establish if anyone at Broward College had actual or
constructive notice of its presence”).
Here, too, there was no dispute
about Costco’s actual or constructive notice of the liquid.3 As to actual notice, Lago testified
she did not see any Costco employee around the liquid or by the entrance before
or when she fell. As to constructive notice, Lago’s testimony was almost
identical to the Delgado plaintiff. Lago testified that it was not
raining (the slip and fall happened under an overhang in front of the Costco
entrance), she did not see the liquid on the floor before she fell, she didn’t
know what the liquid was (other than that it was wet), and she didn’t know how
long it had been there. Lago saw no one else slip in the same busy entranceway
before and after her fall.
about Costco’s actual or constructive notice of the liquid.3 As to actual notice, Lago testified
she did not see any Costco employee around the liquid or by the entrance before
or when she fell. As to constructive notice, Lago’s testimony was almost
identical to the Delgado plaintiff. Lago testified that it was not
raining (the slip and fall happened under an overhang in front of the Costco
entrance), she did not see the liquid on the floor before she fell, she didn’t
know what the liquid was (other than that it was wet), and she didn’t know how
long it had been there. Lago saw no one else slip in the same busy entranceway
before and after her fall.
As in Delgado and Encarnacion,
the undisputed summary judgment evidence was that the floor was wet and Lago
slipped and fell. Without additional facts suggesting the liquid had been there
for a long period of time or this happened regularly, the trial court properly
granted summary judgment in favor of Costco. We affirm.
the undisputed summary judgment evidence was that the floor was wet and Lago
slipped and fell. Without additional facts suggesting the liquid had been there
for a long period of time or this happened regularly, the trial court properly
granted summary judgment in favor of Costco. We affirm.
Affirmed.
__________________
1This part
of the opinion comes from Lago’s deposition. Lago gave a different account in
her complaint, where she alleged that she slipped and fell as she was walking
back from the Costco gas station.
of the opinion comes from Lago’s deposition. Lago gave a different account in
her complaint, where she alleged that she slipped and fell as she was walking
back from the Costco gas station.
2A
“transitory foreign substance” refers “generally to any liquid or solid
substance, item or object located where it does not belong.” Owens v. Publix
Supermarkets, Inc., 802 So. 2d 315, 317 n.1 (Fla. 2001).
“transitory foreign substance” refers “generally to any liquid or solid
substance, item or object located where it does not belong.” Owens v. Publix
Supermarkets, Inc., 802 So. 2d 315, 317 n.1 (Fla. 2001).
3Lago
offered an unauthenticated expert report from another case and a print out from
a weather website as counter-evidence, but the trial court properly struck
these items as hearsay that could not be considered as summary judgment
evidence under Rule 1.510. See First Union Nat’l Bk. of Fla. v. Ruiz,
785 So. 2d 589, 591 (Fla. 5th DCA 2001) (“[M]erely attaching an unsworn
document . . . to a motion for summary judgment does not, without more, satisfy
the procedural strictures inherent in Florida Rule of Civil Procedure
1.510(e).”). Lago has not appealed this part of the trial court’s summary
judgment decision.
offered an unauthenticated expert report from another case and a print out from
a weather website as counter-evidence, but the trial court properly struck
these items as hearsay that could not be considered as summary judgment
evidence under Rule 1.510. See First Union Nat’l Bk. of Fla. v. Ruiz,
785 So. 2d 589, 591 (Fla. 5th DCA 2001) (“[M]erely attaching an unsworn
document . . . to a motion for summary judgment does not, without more, satisfy
the procedural strictures inherent in Florida Rule of Civil Procedure
1.510(e).”). Lago has not appealed this part of the trial court’s summary
judgment decision.
* * *