27
Fla. L. Weekly Fed. D7aTop of Form
Fla. L. Weekly Fed. D7aTop of Form
Torts
— Premises liability — Slip and fall — Plaintiff who slipped and fell on
water or liquid by shopping cart retrieval area in front of defendant’s store
filed single count complaint alleging defendant breached its duty of care to
plaintiff as a business invitee by failing to adequately and properly operate
and maintain the area, thereby creating a dangerous condition or trap —
Knowledge of dangerous condition — Construing all justifiable inferences in
plaintiff’s favor, genuine issues of material fact remain that preclude entry
of summary judgment in favor of defendant — Genuine factual issues remain, for
example, regarding whether and when defendant had constructive knowledge of the
liquid on the floor, or whether the liquid existed at the subject location for
such a length of time that defendant should have known about it, and whether
dangerous conditions occurred at this area such that defendant should have
anticipated the dangerous condition that caused plaintiff’s injury —
Subsequent trial should not be limited to the aforementioned examples
— Premises liability — Slip and fall — Plaintiff who slipped and fell on
water or liquid by shopping cart retrieval area in front of defendant’s store
filed single count complaint alleging defendant breached its duty of care to
plaintiff as a business invitee by failing to adequately and properly operate
and maintain the area, thereby creating a dangerous condition or trap —
Knowledge of dangerous condition — Construing all justifiable inferences in
plaintiff’s favor, genuine issues of material fact remain that preclude entry
of summary judgment in favor of defendant — Genuine factual issues remain, for
example, regarding whether and when defendant had constructive knowledge of the
liquid on the floor, or whether the liquid existed at the subject location for
such a length of time that defendant should have known about it, and whether
dangerous conditions occurred at this area such that defendant should have
anticipated the dangerous condition that caused plaintiff’s injury —
Subsequent trial should not be limited to the aforementioned examples
YVONNE GARDNER, Plaintiff, v. TARGET
CORPORATION, Defendant. U.S. District Court, Southern District of Florida. Case
No. 16-80743-CIV-ZLOCH. July 27, 2017. William J. Zloch, Sr. Judge. Counsel:
Peter A. Dyson, Metnick, Levy & Dyson, Delray Beach, for Plaintiff. Jon
Derrevere, Derrevere Hawkes Black & Cozad, West Palm Beach, for Defendant.
CORPORATION, Defendant. U.S. District Court, Southern District of Florida. Case
No. 16-80743-CIV-ZLOCH. July 27, 2017. William J. Zloch, Sr. Judge. Counsel:
Peter A. Dyson, Metnick, Levy & Dyson, Delray Beach, for Plaintiff. Jon
Derrevere, Derrevere Hawkes Black & Cozad, West Palm Beach, for Defendant.
ORDER
THIS MATTER is before the Court upon
Defendant Target Corporation’s Motion For Final Summary Judgment (DE 39). The
Court has carefully reviewed said Motion, the entire court file and is
otherwise fully advised in the premises.
Defendant Target Corporation’s Motion For Final Summary Judgment (DE 39). The
Court has carefully reviewed said Motion, the entire court file and is
otherwise fully advised in the premises.
Plaintiff Yvonne Gardner
(hereinafter “Plaintiff”) initiated the above-styled cause with the filing of a
Complaint (DE 1-2) in the Circuit Court of the Fifteenth Judicial Circuit in
and for Palm Beach County, and Defendant Target Corporation (hereinafter
“Defendant”) removed this case to this Court. See DE 1. In the sole
Count of the Complaint (DE 1-2), Plaintiff alleges that Defendant breached its
duty of care to Plaintiff, a business invitee, by failing to adequately and
properly operate and maintain its shopping cart retrieval area free from liquid
and therefore by creating a dangerous condition or trap; by failing to inspect,
discover, and correct this dangerous condition; by failing to give notice of
this dangerous condition; and, by failing to instruct its employees as to
safety measures and precautions. As a direct and proximate result of
Defendant’s negligence, Plaintiff alleges various damages due to her injuries.
By its instant Motion For Summary Judgment (DE 39), Defendant argues that
Plaintiff has produced no evidence to meet her burden of demonstrating that it
had actual knowledge of the liquid on the floor or constructive knowledge that
this dangerous condition existed for such a length of time that it should have
known of the liquid with the exercise of ordinary care. Defendant submits that
Plaintiff has likewise failed to produce evidence of the regularity of this
dangerous condition such that it would have been foreseeable.
(hereinafter “Plaintiff”) initiated the above-styled cause with the filing of a
Complaint (DE 1-2) in the Circuit Court of the Fifteenth Judicial Circuit in
and for Palm Beach County, and Defendant Target Corporation (hereinafter
“Defendant”) removed this case to this Court. See DE 1. In the sole
Count of the Complaint (DE 1-2), Plaintiff alleges that Defendant breached its
duty of care to Plaintiff, a business invitee, by failing to adequately and
properly operate and maintain its shopping cart retrieval area free from liquid
and therefore by creating a dangerous condition or trap; by failing to inspect,
discover, and correct this dangerous condition; by failing to give notice of
this dangerous condition; and, by failing to instruct its employees as to
safety measures and precautions. As a direct and proximate result of
Defendant’s negligence, Plaintiff alleges various damages due to her injuries.
By its instant Motion For Summary Judgment (DE 39), Defendant argues that
Plaintiff has produced no evidence to meet her burden of demonstrating that it
had actual knowledge of the liquid on the floor or constructive knowledge that
this dangerous condition existed for such a length of time that it should have
known of the liquid with the exercise of ordinary care. Defendant submits that
Plaintiff has likewise failed to produce evidence of the regularity of this
dangerous condition such that it would have been foreseeable.
I.
Background
Background
Plaintiff slipped and fell on water
or liquid by the shopping cart retrieval area in the front of Defendant’s store
in West Palm Beach on October 13, 2015.1 Before the fall, Plaintiff did not
see liquid on the floor. Plaintiff describes the liquid on the floor
differently from employees of Defendant who observed the liquid, none of these
employees admitting to having actually seen the liquid prior to Plaintiff’s
fall. Video footage captures Plaintiff’s fall at 11:25 a.m., and additionally,
includes footage from thirty minutes before and after the fall. The video does
not show any source of the liquid which caused Plaintiff’s fall. Descriptions
of the exact size of the puddle of water vary. Plaintiff remembers its color
differently from Defendant’s employees, who describe it as clear liquid, free
from debris. Dennis Morford, an employee of Defendant was working at a pizza
counter diagonally across the main aisle from the cart area at a distance of
approximately fifteen feet, and while he did not see liquid on the floor prior
to the fall, after Plaintiff’s fall, he saw the puddle on the floor from his
position behind the pizza counter. Another of Defendant’s employees present on
the day of the accident, Joseph Romano,2 noted that the area where Plaintiff
fell gets wet from rain and spills. It was not raining on the day in question.
Mr. Moreford was the first of Defendant’s employees to respond to the accident,
and he was followed by Ben Richter, the acting store manager.
or liquid by the shopping cart retrieval area in the front of Defendant’s store
in West Palm Beach on October 13, 2015.1 Before the fall, Plaintiff did not
see liquid on the floor. Plaintiff describes the liquid on the floor
differently from employees of Defendant who observed the liquid, none of these
employees admitting to having actually seen the liquid prior to Plaintiff’s
fall. Video footage captures Plaintiff’s fall at 11:25 a.m., and additionally,
includes footage from thirty minutes before and after the fall. The video does
not show any source of the liquid which caused Plaintiff’s fall. Descriptions
of the exact size of the puddle of water vary. Plaintiff remembers its color
differently from Defendant’s employees, who describe it as clear liquid, free
from debris. Dennis Morford, an employee of Defendant was working at a pizza
counter diagonally across the main aisle from the cart area at a distance of
approximately fifteen feet, and while he did not see liquid on the floor prior
to the fall, after Plaintiff’s fall, he saw the puddle on the floor from his
position behind the pizza counter. Another of Defendant’s employees present on
the day of the accident, Joseph Romano,2 noted that the area where Plaintiff
fell gets wet from rain and spills. It was not raining on the day in question.
Mr. Moreford was the first of Defendant’s employees to respond to the accident,
and he was followed by Ben Richter, the acting store manager.
II.
Standard of Review
Standard of Review
Under Federal Rule of Civil
Procedure 56(a), summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” The party seeking summary judgment
Procedure 56(a), summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” The party seeking summary judgment
always
bears the initial responsibility of informing the district court of the basis
for its motion, and identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine
issue of material fact.
bears the initial responsibility of informing the district court of the basis
for its motion, and identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine
issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quotation omitted). “An issue of
fact is ‘material’ if, under the applicable substantive law, it might affect
the outcome of the case. An issue of fact is ‘genuine’ if the record taken as a
whole could lead a rational trier of fact to find for the nonmoving party.” Hickson
Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1259-60 (11th Cir. 2004) [17
Fla. L. Weekly Fed. C195a] (citing Allen v. Tyson Foods, 121 F.3d 642,
646 (11th Cir. 1997)) (further citations omitted). “Only when that burden has
been met does the burden shift to the non-moving party to demonstrate that
there is indeed a material issue of fact that precludes summary judgment.” Clark
v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Avirgan
v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). “If the movant succeeds in
demonstrating the absence of a material fact, the burden shifts to the
non-movant to show the existence of a genuine issue of fact.” Burger King
Corp. v. E-Z Eating, 41 Corp., 572 F.3d 1306, 1313 (11th Cir. 2009) [21
Fla. L. Weekly Fed. C1973a] (citing Fitzpatrick v. City of Atlanta, 2
F.3d 1112, 1116 (11th Cir. 1993)).
fact is ‘material’ if, under the applicable substantive law, it might affect
the outcome of the case. An issue of fact is ‘genuine’ if the record taken as a
whole could lead a rational trier of fact to find for the nonmoving party.” Hickson
Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1259-60 (11th Cir. 2004) [17
Fla. L. Weekly Fed. C195a] (citing Allen v. Tyson Foods, 121 F.3d 642,
646 (11th Cir. 1997)) (further citations omitted). “Only when that burden has
been met does the burden shift to the non-moving party to demonstrate that
there is indeed a material issue of fact that precludes summary judgment.” Clark
v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Avirgan
v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). “If the movant succeeds in
demonstrating the absence of a material fact, the burden shifts to the
non-movant to show the existence of a genuine issue of fact.” Burger King
Corp. v. E-Z Eating, 41 Corp., 572 F.3d 1306, 1313 (11th Cir. 2009) [21
Fla. L. Weekly Fed. C1973a] (citing Fitzpatrick v. City of Atlanta, 2
F.3d 1112, 1116 (11th Cir. 1993)).
The moving party is entitled to
“judgment as a matter of law” when the non-moving party fails to make a
sufficient showing of an essential element of the case to which the non-moving
party has the burden of proof. Celotex Corp., 477 U.S. at 322; Everett
v. Napper, 833 F.2d 1507, 1510 (11th Cir. 1987). All justifiable inferences
are to be drawn in the light most favorable to the nonmoving party. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
“judgment as a matter of law” when the non-moving party fails to make a
sufficient showing of an essential element of the case to which the non-moving
party has the burden of proof. Celotex Corp., 477 U.S. at 322; Everett
v. Napper, 833 F.2d 1507, 1510 (11th Cir. 1987). All justifiable inferences
are to be drawn in the light most favorable to the nonmoving party. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
III.
Discussion
Discussion
The Court applies Florida law to
this case over which the Court exercises its diversity jurisdiction. Garcia
v. Wal-Mart Stores, Inc., No. 6:14-cv-255-0r1-40TBS, 2015 WL 898582, at *2
(M.D. Fla. Mar. 3, 2015) (citing Pendergast v. Sprint Nextel Corp., 592
F.3d 1119, 1132-33 (11th Cir. 2010) [22 Fla. L. Weekly Fed. C380b]. “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.” Delgado v. Laundromax, Inc., 65 So.3d 1087,
1089 (Fla. Dist. Ct. App. 2011) [36 Fla. L. Weekly D1270a] (citing
Westchester Exxon v. Valdes, 524 So.2d 452, 454 (Fla. Dist. Ct. App. 1988).
In addition, the business owner owes specific duties to the business invitee,
such as the Plaintiff in this case: to take ordinary reasonable care to
maintain a safe premise and to warn of known perils or perils of which it
should have known that an invitee could not discover. Id. (citing
Westchester Exxon, 524 So.2d at 455). In 2010, Florida repealed and
replaced a statute which defines the proof required for a breach of duty
involving an accident caused by a transitory substance, such as liquid on the
floor, in this case. That statute states:
this case over which the Court exercises its diversity jurisdiction. Garcia
v. Wal-Mart Stores, Inc., No. 6:14-cv-255-0r1-40TBS, 2015 WL 898582, at *2
(M.D. Fla. Mar. 3, 2015) (citing Pendergast v. Sprint Nextel Corp., 592
F.3d 1119, 1132-33 (11th Cir. 2010) [22 Fla. L. Weekly Fed. C380b]. “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.” Delgado v. Laundromax, Inc., 65 So.3d 1087,
1089 (Fla. Dist. Ct. App. 2011) [36 Fla. L. Weekly D1270a] (citing
Westchester Exxon v. Valdes, 524 So.2d 452, 454 (Fla. Dist. Ct. App. 1988).
In addition, the business owner owes specific duties to the business invitee,
such as the Plaintiff in this case: to take ordinary reasonable care to
maintain a safe premise and to warn of known perils or perils of which it
should have known that an invitee could not discover. Id. (citing
Westchester Exxon, 524 So.2d at 455). In 2010, Florida repealed and
replaced a statute which defines the proof required for a breach of duty
involving an accident caused by a transitory substance, such as liquid on the
floor, in this case. That statute states:
(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:
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.
(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.
section does not affect any common-law duty of care owed by a person or entity
in possession or control of a business premises.
Fla. Stat. § 768.0755. “When
considering whether there is an issue of fact for submission to a jury in
transitory foreign substances cases, courts look to the length of time the
condition existed before the accident occurred.” Wilson-Greene v. City of
Miami, 208 So.3d 1271, 1275 (Fla. Dist. Ct. App. 2017) [42 Fla. L. Weekly
D237a]. The length of time a liquid remained on the floor relates to whether a
Defendant had constructive knowledge of that substance even if, as in this
case, actual knowledge has not been established or acknowledged by Defendant.
As to the other method of establishing that Defendant should have known of the
dangerous condition, covered in section (b) of the above-cited statute, one
court addressing the issue, noted that, “While none of the deposition testimony
offered by [plaintiff] establishes how the substance that caused [plaintiff’s]
accident came to be on the dance floor, each deponent testified that patrons in
the dance room where the fall occurred routinely took drinks onto the dance
floor, which commonly resulted in spills on the dance floor.” Feris v. Club
Country of Fort Walton Beach, Inc., 138 So.3d 531, 534 (Fla. Dist. Ct. App.
2014) [39 Fla. L. Weekly D922a].
considering whether there is an issue of fact for submission to a jury in
transitory foreign substances cases, courts look to the length of time the
condition existed before the accident occurred.” Wilson-Greene v. City of
Miami, 208 So.3d 1271, 1275 (Fla. Dist. Ct. App. 2017) [42 Fla. L. Weekly
D237a]. The length of time a liquid remained on the floor relates to whether a
Defendant had constructive knowledge of that substance even if, as in this
case, actual knowledge has not been established or acknowledged by Defendant.
As to the other method of establishing that Defendant should have known of the
dangerous condition, covered in section (b) of the above-cited statute, one
court addressing the issue, noted that, “While none of the deposition testimony
offered by [plaintiff] establishes how the substance that caused [plaintiff’s]
accident came to be on the dance floor, each deponent testified that patrons in
the dance room where the fall occurred routinely took drinks onto the dance
floor, which commonly resulted in spills on the dance floor.” Feris v. Club
Country of Fort Walton Beach, Inc., 138 So.3d 531, 534 (Fla. Dist. Ct. App.
2014) [39 Fla. L. Weekly D922a].
Construing all justifiable
inferences in Plaintiff’s favor as it must, the Court finds that there remain
genuine issues of material fact in dispute that preclude the entry of summary
judgment. For example, genuine factual issues remain regarding whether and when
Defendant had constructive knowledge of the liquid on the floor, or whether the
liquid existed at the subject location for such a length of time that Defendant
should have known about it. Additionally, it remains disputed whether dangerous
conditions occurred at this area such that Defendant should have anticipated
the dangerous condition that caused Plaintiff’s injury. Reference by the Court
to the aforementioned examples should not be construed to limit a subsequent
trial to these issues alone.
inferences in Plaintiff’s favor as it must, the Court finds that there remain
genuine issues of material fact in dispute that preclude the entry of summary
judgment. For example, genuine factual issues remain regarding whether and when
Defendant had constructive knowledge of the liquid on the floor, or whether the
liquid existed at the subject location for such a length of time that Defendant
should have known about it. Additionally, it remains disputed whether dangerous
conditions occurred at this area such that Defendant should have anticipated
the dangerous condition that caused Plaintiff’s injury. Reference by the Court
to the aforementioned examples should not be construed to limit a subsequent
trial to these issues alone.
Accordingly, after due
consideration, it is
consideration, it is
ORDERED AND ADJUDGED that Defendant Target Corporation’s Motion For Final Summary
Judgment (DE 39) be and the same is hereby DENIED.
Judgment (DE 39) be and the same is hereby DENIED.
__________________
1The
following facts are taken from Defendant’s Statement Of Material Facts,
contained within its Motion For Final Summary Judgment (DE 39) and Plaintiff’s
Response To Defendant’s Statement Of Material Facts And Additional Material
Facts (DE 44). In addition, the Court has also viewed the video footage of the
incident. DE 63.
following facts are taken from Defendant’s Statement Of Material Facts,
contained within its Motion For Final Summary Judgment (DE 39) and Plaintiff’s
Response To Defendant’s Statement Of Material Facts And Additional Material
Facts (DE 44). In addition, the Court has also viewed the video footage of the
incident. DE 63.
2Mr. Romano
is described as an individual with special needs, but he provided deposition
testimony referenced by both Parties. The Parties dispute his ability to
understand the nature and purpose of providing testimony at his deposition.
is described as an individual with special needs, but he provided deposition
testimony referenced by both Parties. The Parties dispute his ability to
understand the nature and purpose of providing testimony at his deposition.
* * *