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Fla. L. Weekly D304aTop of Form
Fla. L. Weekly D304aTop of Form
Torts
— Premises liability — Slip and fall on transitory foreign substance in
hallway of hospital’s emergency room — Trial court properly entered summary
judgment for defendant hospital and hospital’s contract cleaning company where
there was no evidence that defendants had actual or constructive knowledge of
the dangerous condition — Under provisions of contract with hospital, cleaning
company had no duty to constantly patrol or supervise the area where the
accident occurred
— Premises liability — Slip and fall on transitory foreign substance in
hallway of hospital’s emergency room — Trial court properly entered summary
judgment for defendant hospital and hospital’s contract cleaning company where
there was no evidence that defendants had actual or constructive knowledge of
the dangerous condition — Under provisions of contract with hospital, cleaning
company had no duty to constantly patrol or supervise the area where the
accident occurred
CARMEN
ENCARNACION, Appellant, vs. LIFEMARK HOSPITALS OF FLORIDA, etc., et al.,
Appellees. 3rd District. Case No. 3D15-0834. L.T. Case No. 13-1003. Opinion
filed February 1, 2017. An Appeal from the Circuit Court for Miami-Dade County,
Jorge E. Cueto, Judge. Counsel: Eaton & Wolk, PL, and Douglas F. Eaton, for
appellant. Falk, Waas, Hernandez, Cortina, Solomon, & Bonner, P.A., and
Glenn Falk, Sr., Scott L. Mendlestein and Richard A. Warren; Bice Cole Law
Firm, P.L., and Neil A. Covone, for appellees.
ENCARNACION, Appellant, vs. LIFEMARK HOSPITALS OF FLORIDA, etc., et al.,
Appellees. 3rd District. Case No. 3D15-0834. L.T. Case No. 13-1003. Opinion
filed February 1, 2017. An Appeal from the Circuit Court for Miami-Dade County,
Jorge E. Cueto, Judge. Counsel: Eaton & Wolk, PL, and Douglas F. Eaton, for
appellant. Falk, Waas, Hernandez, Cortina, Solomon, & Bonner, P.A., and
Glenn Falk, Sr., Scott L. Mendlestein and Richard A. Warren; Bice Cole Law
Firm, P.L., and Neil A. Covone, for appellees.
(Before
ROTHENBERG and SCALES, JJ., and SHEPHERD, Senior Judge.)
ROTHENBERG and SCALES, JJ., and SHEPHERD, Senior Judge.)
(SHEPHERD,
Senior Judge.) Carmen Encarnacion appeals from a summary final judgment in a
slip-and-fall case she brought against Lifemark Hospitals of Florida, Inc.,
doing business as Palmetto General Hospital, and the Hospital’s contract
cleaning company, Hospital Housekeeping Systems, Inc., for injuries suffered
from a fall in the emergency room hallway of the hospital. The thrust of Ms.
Encarnacion’s argument to the trial court was that a genuine issue of material
fact existed concerning whether the hospital and its housekeeping vendor knew
or should have known of the dangerous condition. The trial court found there
was no genuine issue of material fact and granted final summary judgment to the
hospital and cleaning company. We agree and affirm the decision of the trial
court, albeit with a slightly different analysis. A brief summary of the facts
of the case are necessary to explain our decision.
Senior Judge.) Carmen Encarnacion appeals from a summary final judgment in a
slip-and-fall case she brought against Lifemark Hospitals of Florida, Inc.,
doing business as Palmetto General Hospital, and the Hospital’s contract
cleaning company, Hospital Housekeeping Systems, Inc., for injuries suffered
from a fall in the emergency room hallway of the hospital. The thrust of Ms.
Encarnacion’s argument to the trial court was that a genuine issue of material
fact existed concerning whether the hospital and its housekeeping vendor knew
or should have known of the dangerous condition. The trial court found there
was no genuine issue of material fact and granted final summary judgment to the
hospital and cleaning company. We agree and affirm the decision of the trial
court, albeit with a slightly different analysis. A brief summary of the facts
of the case are necessary to explain our decision.
FACTS
Ms.
Encarnacion arrived at Palmetto General Hospital at approximately 4:45 p.m. on
March 11, 2011, to assist her elderly mother, who had arrived in the emergency
room a few hours earlier after having suffered a stroke. She found her mother
still in the emergency room, resting comfortably. A hospital nurse advised Ms.
Encarnacion that her mother needed to be admitted to the hospital, but that
they would have to wait a short time for a bed to come available. After five
hours, Ms. Encarnacion decided to seek out a nurse to determine the status of
their wait. As Ms. Encarnacion left the room, she saw a man who she thought was
an Emergency Medical Services (EMS) paramedic with a spray bottle in the
hallway, cleaning a stretcher. She attempted to walk around the area where the
man was cleaning, but slipped and fell due to what she “guess[ed],” was spray
liquid on the floor.
Encarnacion arrived at Palmetto General Hospital at approximately 4:45 p.m. on
March 11, 2011, to assist her elderly mother, who had arrived in the emergency
room a few hours earlier after having suffered a stroke. She found her mother
still in the emergency room, resting comfortably. A hospital nurse advised Ms.
Encarnacion that her mother needed to be admitted to the hospital, but that
they would have to wait a short time for a bed to come available. After five
hours, Ms. Encarnacion decided to seek out a nurse to determine the status of
their wait. As Ms. Encarnacion left the room, she saw a man who she thought was
an Emergency Medical Services (EMS) paramedic with a spray bottle in the
hallway, cleaning a stretcher. She attempted to walk around the area where the
man was cleaning, but slipped and fell due to what she “guess[ed],” was spray
liquid on the floor.
Almost
two years later, on January 9, 2013, Ms. Encarnacion sued the Hospital and soon
thereafter joined Hospital Housekeeping Systems. Shortly after suit was filed,
Ms. Encarnacion submitted a statement of claim to the Risk Management Division
of Miami-Dade County in which she stated that the substance she slipped on was
the same as that being used by the EMS paramedic. She repeated this assertion
in her answers to the hospital’s interrogatories, stating again that she
slipped because of a slippery substance which “EMS personnel was using to clean
a stretcher in the hallway.”
two years later, on January 9, 2013, Ms. Encarnacion sued the Hospital and soon
thereafter joined Hospital Housekeeping Systems. Shortly after suit was filed,
Ms. Encarnacion submitted a statement of claim to the Risk Management Division
of Miami-Dade County in which she stated that the substance she slipped on was
the same as that being used by the EMS paramedic. She repeated this assertion
in her answers to the hospital’s interrogatories, stating again that she
slipped because of a slippery substance which “EMS personnel was using to clean
a stretcher in the hallway.”
On
July 15, 2013, six months into the lawsuit, Ms. Encarnacion became a little
less certain about the identity of the person who was cleaning the stretcher,
stating the man “may be a rescue.” She also testified there were no signs
indicating the floor was wet; that aside from the spray bottle, she did not see
any mop bucket, dripping mops, or food service items in the hallway; and the
substance on the floor was “oily”, dirty”, and “dark.” About a month later, in
a subsequent deposition, Ms. Encarnacion asserted that the substance smelled
like a cleaning product similar to “Pine Sol,” she did not know how long the
substance had been on the floor, and she thought that “because [the man’s]
uniform was kind of gray, dark gray, [she assumed] that he was an EMS.”
July 15, 2013, six months into the lawsuit, Ms. Encarnacion became a little
less certain about the identity of the person who was cleaning the stretcher,
stating the man “may be a rescue.” She also testified there were no signs
indicating the floor was wet; that aside from the spray bottle, she did not see
any mop bucket, dripping mops, or food service items in the hallway; and the
substance on the floor was “oily”, dirty”, and “dark.” About a month later, in
a subsequent deposition, Ms. Encarnacion asserted that the substance smelled
like a cleaning product similar to “Pine Sol,” she did not know how long the
substance had been on the floor, and she thought that “because [the man’s]
uniform was kind of gray, dark gray, [she assumed] that he was an EMS.”
Both
the Hospital and Hospital Housekeeping Systems moved for summary judgment on
the ground there was a complete lack of evidence that either the Hospital or
Hospital Housekeeping Systems had actual or constructive knowledge of the
condition and, based on Ms. Encarnacion’s answers to interrogatories, it was
undisputed that the person using the spray was an EMS paramedic. The Hospital
further asserted that it employed reasonable measures to maintain its emergency
department in a reasonably safe condition by having its own security personnel
police the emergency room area on a regular basis to correct any dangerous
condition, and by employing Hospital Housekeeping Systems, which assigned two
housekeepers to the emergency department twenty-four hours per day, seven days
per week. Absent from the record were cleaning schedules, cleaning logs or
employee testimony concerning the extent to which the Hospital’s security
personnel or Hospital Housekeeping Systems performed their assigned and
contractual tasks. On this record, the trial court granted summary judgment in
favor of the Hospital and Hospital Housekeeping Systems, Inc.
the Hospital and Hospital Housekeeping Systems moved for summary judgment on
the ground there was a complete lack of evidence that either the Hospital or
Hospital Housekeeping Systems had actual or constructive knowledge of the
condition and, based on Ms. Encarnacion’s answers to interrogatories, it was
undisputed that the person using the spray was an EMS paramedic. The Hospital
further asserted that it employed reasonable measures to maintain its emergency
department in a reasonably safe condition by having its own security personnel
police the emergency room area on a regular basis to correct any dangerous
condition, and by employing Hospital Housekeeping Systems, which assigned two
housekeepers to the emergency department twenty-four hours per day, seven days
per week. Absent from the record were cleaning schedules, cleaning logs or
employee testimony concerning the extent to which the Hospital’s security
personnel or Hospital Housekeeping Systems performed their assigned and
contractual tasks. On this record, the trial court granted summary judgment in
favor of the Hospital and Hospital Housekeeping Systems, Inc.
STANDARD
OF REVIEW
OF REVIEW
Summary
judgment is proper when the pleadings, discovery and affidavits show there is
“no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Fla. R. Civ. P. 1.510. Material facts are
those which may affect the outcome of the case. Winn-Dixie Stores, Inc. v.
Dolgencorp., Inc., 964 So. 2d 261, 263-264 (Fla. 4th DCA 2007) (“An issue
of fact is ‘material’ if it is a legal element of the claim under the
applicable substantive law which might affect the outcome of the case.”)
(citing Byrd v. BT Foods, Inc., 948 So. 2d 921, 923) (Fla. 4th DCA
2007). A dispute as to a material fact is genuine if there is sufficient
evidence for a reasonable jury to return a verdict for the non-moving party. Bishop
v. R. J. Reynolds Tobacco Co., 96 So. 3d 464, 467 (Fla. 5th DCA 2012)
(“Issues of fact are ‘genuine’ only if a reasonable jury, considering the
evidence presented, could find for the non-moving party.”) (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)); see also Dreggors
v. Wausau Ins. Co., 995 So. 2d 547, 549 (Fla. 5th DCA 2008).
judgment is proper when the pleadings, discovery and affidavits show there is
“no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Fla. R. Civ. P. 1.510. Material facts are
those which may affect the outcome of the case. Winn-Dixie Stores, Inc. v.
Dolgencorp., Inc., 964 So. 2d 261, 263-264 (Fla. 4th DCA 2007) (“An issue
of fact is ‘material’ if it is a legal element of the claim under the
applicable substantive law which might affect the outcome of the case.”)
(citing Byrd v. BT Foods, Inc., 948 So. 2d 921, 923) (Fla. 4th DCA
2007). A dispute as to a material fact is genuine if there is sufficient
evidence for a reasonable jury to return a verdict for the non-moving party. Bishop
v. R. J. Reynolds Tobacco Co., 96 So. 3d 464, 467 (Fla. 5th DCA 2012)
(“Issues of fact are ‘genuine’ only if a reasonable jury, considering the
evidence presented, could find for the non-moving party.”) (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)); see also Dreggors
v. Wausau Ins. Co., 995 So. 2d 547, 549 (Fla. 5th DCA 2008).
ANALYSIS
We
apply this standard separately to each defendant.
apply this standard separately to each defendant.
I.
Palmetto General Hospital
Palmetto General Hospital
“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.” Wilson-Greene v. City of Miami, No. 3D14-3094,
slip op. at 4 (Fla. 3d DCA Jan. 25, 2017) (citing Bartsch v. Costello,
170 So. 3d 83, 86 (Fla. 4th DCA 2015)). It is undisputed that Ms. Encarnacion
was a business invitee on the hospital premises and, therefore, the hospital
owed her a duty to exercise reasonable care to maintain their premises in a
safe condition. Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418,
423 (Fla. 4th DCA 2014). However, where a business invitee slips and falls on a
“transitory substance” in a business establishment as occurred here, proof of
the breach element of the claim against an owner of the establishment is
statutorily constrained by section 768.0755 of the Florida Statutes (2013). The
statute reads as follows:
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.” Wilson-Greene v. City of Miami, No. 3D14-3094,
slip op. at 4 (Fla. 3d DCA Jan. 25, 2017) (citing Bartsch v. Costello,
170 So. 3d 83, 86 (Fla. 4th DCA 2015)). It is undisputed that Ms. Encarnacion
was a business invitee on the hospital premises and, therefore, the hospital
owed her a duty to exercise reasonable care to maintain their premises in a
safe condition. Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418,
423 (Fla. 4th DCA 2014). However, where a business invitee slips and falls on a
“transitory substance” in a business establishment as occurred here, proof of
the breach element of the claim against an owner of the establishment is
statutorily constrained by section 768.0755 of the Florida Statutes (2013). The
statute reads as follows:
768.0755. Premises liability
for transitory foreign substances in a business establishment
for transitory foreign substances in a business establishment
(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:
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
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.
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.
affect any common-law duty of care owed by a person or entity in possession or
control of a business premises.
(Emphasis
added.)
added.)
Here,
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. In fact, if Ms. Encarnacion’s testimony is
believed, the liquid was being deposited on the floor by a non-hospital
employee at the same time Ms. Encarnacion fell. See McCarthy v.
Broward College, 164 So. 3d 78 (Fla. 4th DCA 2015) (affirming summary
judgment for defendant where there was no evidence of how long the substance
was on the floor before the fall); Walker v. Winn-Dixie Stores, Inc.,
160 So. 3d 909 (Fla. 1st DCA 2014) (same); Delgado v. Laundromax, Inc.,
65 So. 3d 1087 (Fla. 3d DCA 2011) (same).
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. In fact, if Ms. Encarnacion’s testimony is
believed, the liquid was being deposited on the floor by a non-hospital
employee at the same time Ms. Encarnacion fell. See McCarthy v.
Broward College, 164 So. 3d 78 (Fla. 4th DCA 2015) (affirming summary
judgment for defendant where there was no evidence of how long the substance
was on the floor before the fall); Walker v. Winn-Dixie Stores, Inc.,
160 So. 3d 909 (Fla. 1st DCA 2014) (same); Delgado v. Laundromax, Inc.,
65 So. 3d 1087 (Fla. 3d DCA 2011) (same).
Parenthetically,
we note Ms. Encarnacion’s belated testimony that the substance on the floor was
“oily,” “dirty” and “dark,” even if true, as we must assume for our purposes
here, is insufficient to create a jury issue. For such testimony to create a
jury issue, the testimony must be accompanied by a “plus,” namely some
additional fact or facts from which a jury can reasonably conclude that the
substance was on the floor long enough to have become discolored without
assuming other facts, such as the substance, in its original condition, was not
“oily,” “dirty” and “dark.” See Wilson-Greene slip op. at 6.
we note Ms. Encarnacion’s belated testimony that the substance on the floor was
“oily,” “dirty” and “dark,” even if true, as we must assume for our purposes
here, is insufficient to create a jury issue. For such testimony to create a
jury issue, the testimony must be accompanied by a “plus,” namely some
additional fact or facts from which a jury can reasonably conclude that the
substance was on the floor long enough to have become discolored without
assuming other facts, such as the substance, in its original condition, was not
“oily,” “dirty” and “dark.” See Wilson-Greene slip op. at 6.
II.
Hospital Housekeeping Systems
Hospital Housekeeping Systems
The
liability of Hospital Housekeeping Systems in this case turns on a slightly
different point, its contractually assumed obligations. Wilson-Greene,
slip op. at 4 (“Where a contract exists, ‘a defendant’s liability extends to
persons foreseeably injured by his failure to use reasonable care in
performance of a contractual promise’ ”) (citing Maryland Maint. Serv., Inc.
v. Palmieri, 559 So. 2d 74, 76 (Fla. 3d DCA 1990). The cleaning
specifications for the Emergency Department of the hospital, insofar as the
plaintiff has elected to provide them to us in the record, states: “Emergency
department shall be cleaned on a UCR bases, 24-7 and police cleaned, as
necessary.” As in Wilson-Greene, Hospital Housekeeping Systems had no
duty to constantly patrol or supervise the area where the accident occurred.
liability of Hospital Housekeeping Systems in this case turns on a slightly
different point, its contractually assumed obligations. Wilson-Greene,
slip op. at 4 (“Where a contract exists, ‘a defendant’s liability extends to
persons foreseeably injured by his failure to use reasonable care in
performance of a contractual promise’ ”) (citing Maryland Maint. Serv., Inc.
v. Palmieri, 559 So. 2d 74, 76 (Fla. 3d DCA 1990). The cleaning
specifications for the Emergency Department of the hospital, insofar as the
plaintiff has elected to provide them to us in the record, states: “Emergency
department shall be cleaned on a UCR bases, 24-7 and police cleaned, as
necessary.” As in Wilson-Greene, Hospital Housekeeping Systems had no
duty to constantly patrol or supervise the area where the accident occurred.
For
these reasons, we affirm the summary judgment entered in favor of the Hospital
and Hospital Housekeeping Systems.
these reasons, we affirm the summary judgment entered in favor of the Hospital
and Hospital Housekeeping Systems.
Affirmed.
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