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Fla. L. Weekly D237aTop of Form
Fla. L. Weekly D237aTop of Form
Torts
— Premises liability — Slip and fall as result of plaintiff stepping in soup
on floor of lobby of building owned by city — Trial court did not err in
entering summary judgment for defendant owner of building and defendant
maintenance company where there was no showing that defendants breached a duty
of care owed to plaintiff or that defendants had constructive notice of the
dangerous condition — Language of maintenance company’s contract with city did
not place a heightened standard of care on maintenance company, and it did not
owe a duty to building patrons to constantly patrol and supervise the area —
In order for jury to have found that because soup was cold, soup had been on
floor for such a period of time that defendants had constructive notice of its
presence, jury would have been required to stack inferences
— Premises liability — Slip and fall as result of plaintiff stepping in soup
on floor of lobby of building owned by city — Trial court did not err in
entering summary judgment for defendant owner of building and defendant
maintenance company where there was no showing that defendants breached a duty
of care owed to plaintiff or that defendants had constructive notice of the
dangerous condition — Language of maintenance company’s contract with city did
not place a heightened standard of care on maintenance company, and it did not
owe a duty to building patrons to constantly patrol and supervise the area —
In order for jury to have found that because soup was cold, soup had been on
floor for such a period of time that defendants had constructive notice of its
presence, jury would have been required to stack inferences
HARRIETTE
WILSON-GREENE, Appellant, vs. THE CITY OF MIAMI, et al., Appellees. 3rd
District. Case No. 3D14-3094. L.T. Case No. 11-32791. Opinion filed January 25,
2017. An Appeal from the Circuit Court for Miami-Dade County, Ronald C.
Dresnick, Judge. Counsel: Lindsey M. Tenberg (Lighthouse Point), for appellant.
Walton Lantaff Schroeder & Carson and Stephanie M. Suarez and Michael H.
Galex; Victoria Méndez, City Attorney, and Kerri L. McNulty, Assistant City
Attorney, for appellees.
WILSON-GREENE, Appellant, vs. THE CITY OF MIAMI, et al., Appellees. 3rd
District. Case No. 3D14-3094. L.T. Case No. 11-32791. Opinion filed January 25,
2017. An Appeal from the Circuit Court for Miami-Dade County, Ronald C.
Dresnick, Judge. Counsel: Lindsey M. Tenberg (Lighthouse Point), for appellant.
Walton Lantaff Schroeder & Carson and Stephanie M. Suarez and Michael H.
Galex; Victoria Méndez, City Attorney, and Kerri L. McNulty, Assistant City
Attorney, for appellees.
(Before
SUAREZ, C.J., and SALTER, J., and SHEPHERD, Senior Judge.)
SUAREZ, C.J., and SALTER, J., and SHEPHERD, Senior Judge.)
(SHEPHERD,
Senior Judge.) This is an appeal from an order granting summary judgment on
liability in favor of a building owner and a maintenance company in a
slip-and-fall accident case. We affirm.
Senior Judge.) This is an appeal from an order granting summary judgment on
liability in favor of a building owner and a maintenance company in a
slip-and-fall accident case. We affirm.
Factual
and Procedural Background
and Procedural Background
The
accident in this case occurred in May 2008 at the lobby elevator bank at Miami
Riverside Center, a building owned by the City of Miami. Vista Maintenance
Services, Inc., had the maintenance contract for the building at the time of
the accident. On the day of the incident, the plaintiff, Harriette
Wilson-Greene, arrived at the building between 11:00 a.m. and noon to deliver
some paperwork to the inspection division of the City Building Department,
located on the second floor of the building. According to her own testimony,
she took an elevator from the lobby to the second floor, just as she had done
on two or three prior occasions. She did not see any substance on the floor
before she entered the elevator nor did she see any substance on the floor
during her previous visits to the building.
accident in this case occurred in May 2008 at the lobby elevator bank at Miami
Riverside Center, a building owned by the City of Miami. Vista Maintenance
Services, Inc., had the maintenance contract for the building at the time of
the accident. On the day of the incident, the plaintiff, Harriette
Wilson-Greene, arrived at the building between 11:00 a.m. and noon to deliver
some paperwork to the inspection division of the City Building Department,
located on the second floor of the building. According to her own testimony,
she took an elevator from the lobby to the second floor, just as she had done
on two or three prior occasions. She did not see any substance on the floor
before she entered the elevator nor did she see any substance on the floor
during her previous visits to the building.
Wilson-Greene
testified she spent “longer than 15 minutes” on the second floor conducting her
business, and then returned to the lobby using an elevator in the same elevator
bank. According to her testimony, after taking just a couple of steps out of
the elevator, Wilson-Greene slipped and fell backwards in the hallway between
the two facing banks of elevators that serve the building, hit her head, and
lost consciousness. When she regained consciousness, she observed a green
substance all over her feet, sandals, between her legs, and on parts of her
upper body. She also testified the substance was “not hot.” The building
incident report, which the parties stipulated was authentic, states the
accident occurred at 11:15 a.m. and the substance was “soup that was on the
floor in the hallway of the elevators.” Wilson-Greene said the manager of the
building’s security company told her the substance was green pea soup. Although
there is a restaurant in the lobby of the building, there is no evidence in the
record that the restaurant was serving pea soup that day.1
testified she spent “longer than 15 minutes” on the second floor conducting her
business, and then returned to the lobby using an elevator in the same elevator
bank. According to her testimony, after taking just a couple of steps out of
the elevator, Wilson-Greene slipped and fell backwards in the hallway between
the two facing banks of elevators that serve the building, hit her head, and
lost consciousness. When she regained consciousness, she observed a green
substance all over her feet, sandals, between her legs, and on parts of her
upper body. She also testified the substance was “not hot.” The building
incident report, which the parties stipulated was authentic, states the
accident occurred at 11:15 a.m. and the substance was “soup that was on the
floor in the hallway of the elevators.” Wilson-Greene said the manager of the
building’s security company told her the substance was green pea soup. Although
there is a restaurant in the lobby of the building, there is no evidence in the
record that the restaurant was serving pea soup that day.1
Vista
moved for summary judgment on the ground that it did not owe Wilson-Greene a
legal duty to “constantly patrol and supervise the area where the incident
occurred.” Alternatively, if the court found it did owe a duty to
Wilson-Greene, Vista argued it had no actual or constructive notice of the
dangerous condition. At the hearing on Vista’s motion for summary judgment, the
City ore tenus moved for summary judgment on the same grounds. The trial court
granted summary judgment in favor of both Vista and the City, and Wilson-Greene
appeals from the judgments.
moved for summary judgment on the ground that it did not owe Wilson-Greene a
legal duty to “constantly patrol and supervise the area where the incident
occurred.” Alternatively, if the court found it did owe a duty to
Wilson-Greene, Vista argued it had no actual or constructive notice of the
dangerous condition. At the hearing on Vista’s motion for summary judgment, the
City ore tenus moved for summary judgment on the same grounds. The trial court
granted summary judgment in favor of both Vista and the City, and Wilson-Greene
appeals from the judgments.
Analysis
“The
standard of review of a summary judgment order is de novo and requires viewing
the evidence in the light most favorable to the non-moving party.” Sierra v.
Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). 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.” Bartsch
v. Costello, 170 So. 3d 83, 86 (Fla. 4th DCA 2015). Generally,
standard of review of a summary judgment order is de novo and requires viewing
the evidence in the light most favorable to the non-moving party.” Sierra v.
Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). 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.” Bartsch
v. Costello, 170 So. 3d 83, 86 (Fla. 4th DCA 2015). Generally,
[t]he duty of the landowner
to a business invitee is to maintain the premises in a reasonably safe
condition and to warn the invitee of latent perils which are known or should be
known to the owner but which are not known to the invitee or which, by the
exercise of due care could not be known to him.
to a business invitee is to maintain the premises in a reasonably safe
condition and to warn the invitee of latent perils which are known or should be
known to the owner but which are not known to the invitee or which, by the
exercise of due care could not be known to him.
Storr
v. Proctor, 490 So. 2d 135, 136 (Fla. 3d DCA 1986). 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.” Maryland
Maint. Serv., Inc. v. Palmieri, 559 So. 2d 74, 76 (Fla. 3d DCA 1990).
v. Proctor, 490 So. 2d 135, 136 (Fla. 3d DCA 1986). 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.” Maryland
Maint. Serv., Inc. v. Palmieri, 559 So. 2d 74, 76 (Fla. 3d DCA 1990).
The
pertinent language of the maintenance contract between Vista and City provides
that Vista is to “pay close attention to the 3-story lobby area” and “not to
underestimate the lobby requirements . . . as this is a critical area of
importance.” Additionally, the contract states that Vista is to “police [the]
area and rearrange furniture on a daily basis.” Wilson-Greene argues, based
upon this language, a reasonable jury could hold Vista liable for failing to
use “reasonable and ordinary care” in meeting its contractual obligations. We
disagree. Wilson-Greene’s argument, reduced to its essentials, is that Vista
owed a duty to the building patrons constantly to patrol and supervise
the area where the accident occurred. We believe Wilson-Greene reads more into
the contract than the contract language can bear. The contract language did not
create a contractual duty on Vista constantly to patrol the building.
Nor, we add, does the language of the contract, which performed a dual function
as the bid documentation to the City before the contract was awarded, hold
Vista and the City to a heightened duty of care. We recognize that “[w]here an express
provision within a professional services contract provides for a heightened
standard of care . . ., the professional must perform in accordance with the
terms of the contract.” Sch. Bd. of Broward Cnty. v. Pierce Goodwin
Alexander & Linville, 137 So. 3d 1059, 1065-66 (Fla. 4th DCA 2014)
(citing CH2M Hill Se., Inc. v. Pinellas Cnty., 698 So. 2d 1238, 1240
(Fla. 2d DCA 1997) (“[I]f the professional contracts to perform duties beyond
those required by ordinary standards of care, the quality of that performance
must comport with the contractual terms.”). In this case, while the contract
does emphasize the importance of maintenance in the lobby area of the building,
as in School Board of Broward County, the language is insufficient to
place a heightened standard of care on Vista.
pertinent language of the maintenance contract between Vista and City provides
that Vista is to “pay close attention to the 3-story lobby area” and “not to
underestimate the lobby requirements . . . as this is a critical area of
importance.” Additionally, the contract states that Vista is to “police [the]
area and rearrange furniture on a daily basis.” Wilson-Greene argues, based
upon this language, a reasonable jury could hold Vista liable for failing to
use “reasonable and ordinary care” in meeting its contractual obligations. We
disagree. Wilson-Greene’s argument, reduced to its essentials, is that Vista
owed a duty to the building patrons constantly to patrol and supervise
the area where the accident occurred. We believe Wilson-Greene reads more into
the contract than the contract language can bear. The contract language did not
create a contractual duty on Vista constantly to patrol the building.
Nor, we add, does the language of the contract, which performed a dual function
as the bid documentation to the City before the contract was awarded, hold
Vista and the City to a heightened duty of care. We recognize that “[w]here an express
provision within a professional services contract provides for a heightened
standard of care . . ., the professional must perform in accordance with the
terms of the contract.” Sch. Bd. of Broward Cnty. v. Pierce Goodwin
Alexander & Linville, 137 So. 3d 1059, 1065-66 (Fla. 4th DCA 2014)
(citing CH2M Hill Se., Inc. v. Pinellas Cnty., 698 So. 2d 1238, 1240
(Fla. 2d DCA 1997) (“[I]f the professional contracts to perform duties beyond
those required by ordinary standards of care, the quality of that performance
must comport with the contractual terms.”). In this case, while the contract
does emphasize the importance of maintenance in the lobby area of the building,
as in School Board of Broward County, the language is insufficient to
place a heightened standard of care on Vista.
Additionally,
there were no permissible inferences upon which Wilson-Greene could rely in
defense of the motions for summary judgment to demonstrate the existence of
constructive notice.
there were no permissible inferences upon which Wilson-Greene could rely in
defense of the motions for summary judgment to demonstrate the existence of
constructive notice.
In order for a plaintiff to
recover for injuries received in a slip and fall, the plaintiff must show that
the defendant responsible for the premises had actual or constructive notice of
the dangerous condition. Constructive notice may be shown by presenting
evidence that the condition existed for such a length of time that in exercise
of ordinary care, the defendant should have known of the condition, or by
showing that the condition occurred with regularity and, consequently, was
foreseeable.
recover for injuries received in a slip and fall, the plaintiff must show that
the defendant responsible for the premises had actual or constructive notice of
the dangerous condition. Constructive notice may be shown by presenting
evidence that the condition existed for such a length of time that in exercise
of ordinary care, the defendant should have known of the condition, or by
showing that the condition occurred with regularity and, consequently, was
foreseeable.
Palmieri,
559 So. 2d at 76; see also § 768.0755, Fla. Stat. (2010). In the instant
case, there is no actual notice because no one saw the substance spill on the
floor and no one knows how it got there. Thus, we are left to consider whether
Vista and the City had constructive notice of the dangerous condition.
559 So. 2d at 76; see also § 768.0755, Fla. Stat. (2010). In the instant
case, there is no actual notice because no one saw the substance spill on the
floor and no one knows how it got there. Thus, we are left to consider whether
Vista and the City had constructive notice of the dangerous condition.
When
considering whether there is an issue of fact for submission to a jury in
transitory foreign substance cases, courts look to the length of time the
condition existed before the accident occurred. Dominguez v. Publix Super
Markets, Inc., 187 So. 3d 892, 894 (Fla. 3d DCA 2016). In this case, the
jury would have to stack inferences to conclude that Vista and the City had
constructive notice of a dangerous condition. Although it is true that a
non-moving party to a summary judgment motion may set forth a genuine issue of
material fact through “justifiable inferences from facts presented to the trial
court,” Carbonell v. BellSouth Telecommunications, Inc., 675 So. 2d 705,
706 (Fla. 3d DCA 1996), the stacking of inferences is not permitted. See
Cohen v. Arvin, 878 So. 2d 403 (Fla. 4th DCA 2004). The rule on the
impermissible stacking of inferences provides:
considering whether there is an issue of fact for submission to a jury in
transitory foreign substance cases, courts look to the length of time the
condition existed before the accident occurred. Dominguez v. Publix Super
Markets, Inc., 187 So. 3d 892, 894 (Fla. 3d DCA 2016). In this case, the
jury would have to stack inferences to conclude that Vista and the City had
constructive notice of a dangerous condition. Although it is true that a
non-moving party to a summary judgment motion may set forth a genuine issue of
material fact through “justifiable inferences from facts presented to the trial
court,” Carbonell v. BellSouth Telecommunications, Inc., 675 So. 2d 705,
706 (Fla. 3d DCA 1996), the stacking of inferences is not permitted. See
Cohen v. Arvin, 878 So. 2d 403 (Fla. 4th DCA 2004). The rule on the
impermissible stacking of inferences provides:
[I]n a civil case, a fact may
be established by circumstantial evidence as effectively and as conclusively as
it may be proved by direct positive evidence. The limitation on the rule simply
is that if a party to a civil action depends upon the inferences to be drawn
from circumstantial evidence as proof of one fact, it cannot construct a
further inference upon the initial inference in order to establish a further
fact unless it can be found that the original, basic inference was established
to the exclusion of all other reasonable inferences.
be established by circumstantial evidence as effectively and as conclusively as
it may be proved by direct positive evidence. The limitation on the rule simply
is that if a party to a civil action depends upon the inferences to be drawn
from circumstantial evidence as proof of one fact, it cannot construct a
further inference upon the initial inference in order to establish a further
fact unless it can be found that the original, basic inference was established
to the exclusion of all other reasonable inferences.
Cohen at
405 (quoting Gelco Convention Servs. v. Pettengill, 710 So. 2d 581, 583
(Fla. 4th DCA 1998)). In the instant case, additional facts are needed in order
to reach the conclusion that the soup was on the floor long enough to cool
without assuming other facts — such as that the soup was hot prior to it being
spilled. The mere presence of soup which is “not hot” on the floor is not
enough to establish constructive notice as to Vista or the City.
405 (quoting Gelco Convention Servs. v. Pettengill, 710 So. 2d 581, 583
(Fla. 4th DCA 1998)). In the instant case, additional facts are needed in order
to reach the conclusion that the soup was on the floor long enough to cool
without assuming other facts — such as that the soup was hot prior to it being
spilled. The mere presence of soup which is “not hot” on the floor is not
enough to establish constructive notice as to Vista or the City.
Wilson-Greene
relies heavily on Teate v. Winn-Dixie Stores, Inc., 524 So. 2d 1060
(Fla. 3d DCA 1988), for the argument that because the soup was “not hot” the
jury could infer it was there for a substantial period of time for Vista and
the City to have known of its existence. We find Teate distinguishable
from the instant case. Teate slipped and fell on some peas in the frozen food
department of a Winn-Dixie supermarket. The plaintiff introduced evidence
showing there was some water on the floor around the peas and no employee had
cleaned the area for fifteen to twenty minutes before the fall. Thus, Teate
alleged the water was there because the peas had been on the floor for some
time and had thawed. Although Winn-Dixie countered that the water was a result
of “permafrost” or ice crystals on the bag of peas that instantly melted when
it hit the floor, Teate argued the jury could choose to believe this argument
or could find the peas had been on the floor for a sufficient time to put
Winn-Dixie on notice of the dangerous condition. Unlike in the instant case,
the resolution of the issue in Teate did not require the jury to build
one inference on another. The court properly reasoned,
relies heavily on Teate v. Winn-Dixie Stores, Inc., 524 So. 2d 1060
(Fla. 3d DCA 1988), for the argument that because the soup was “not hot” the
jury could infer it was there for a substantial period of time for Vista and
the City to have known of its existence. We find Teate distinguishable
from the instant case. Teate slipped and fell on some peas in the frozen food
department of a Winn-Dixie supermarket. The plaintiff introduced evidence
showing there was some water on the floor around the peas and no employee had
cleaned the area for fifteen to twenty minutes before the fall. Thus, Teate
alleged the water was there because the peas had been on the floor for some
time and had thawed. Although Winn-Dixie countered that the water was a result
of “permafrost” or ice crystals on the bag of peas that instantly melted when
it hit the floor, Teate argued the jury could choose to believe this argument
or could find the peas had been on the floor for a sufficient time to put
Winn-Dixie on notice of the dangerous condition. Unlike in the instant case,
the resolution of the issue in Teate did not require the jury to build
one inference on another. The court properly reasoned,
[s]ince it was established
that there was some water on the floor, it was completely within the jury’s
province to decide why the water was there. The jury needed to draw only one
inference from direct evidence to reach a decision as to the defendant’s constructive
notice of the condition. It was entitled to believe Teate and to select the
inference that it did.
that there was some water on the floor, it was completely within the jury’s
province to decide why the water was there. The jury needed to draw only one
inference from direct evidence to reach a decision as to the defendant’s constructive
notice of the condition. It was entitled to believe Teate and to select the
inference that it did.
Id.
We
conclude that where melting substances are involved, there is no need to infer
the substance was previously frozen. Logic tells us that is a given. In the
instant case, the jury first would need to infer that the substance was hot
prior to spilling on the floor and infer from this that it was on the floor a
sufficient amount of time for it to have cooled. This requires a jury to
impermissibly stack inferences. We distinguish the other melting substances
cases cited by Wilson-Greene for the same reasons. See Camina v.
Parliament Ins. Co., 417 So. 2d 1093, 1094 (Fla. 3d DCA 1982) (finding that
plaintiff’s slip and fall on thawed ice cream, which was “dirty and
splattered,” was “susceptible of the inference that the condition existed
beforehand . . . so as to make the issue of the defendant’s constructive notice
of the condition one to be resolved by the jury”); Grizzard v. Colonial
Stores, Inc., 330 So. 2d 768, 769 (Fla. 1st DCA 1976) (where the substance
plaintiff slipped on “was identified as partially frozen, partially liquefied
orange juice concentrate” the court concluded, “a jury could find that the
substance on the floor was there long enough to partially thaw”).
conclude that where melting substances are involved, there is no need to infer
the substance was previously frozen. Logic tells us that is a given. In the
instant case, the jury first would need to infer that the substance was hot
prior to spilling on the floor and infer from this that it was on the floor a
sufficient amount of time for it to have cooled. This requires a jury to
impermissibly stack inferences. We distinguish the other melting substances
cases cited by Wilson-Greene for the same reasons. See Camina v.
Parliament Ins. Co., 417 So. 2d 1093, 1094 (Fla. 3d DCA 1982) (finding that
plaintiff’s slip and fall on thawed ice cream, which was “dirty and
splattered,” was “susceptible of the inference that the condition existed
beforehand . . . so as to make the issue of the defendant’s constructive notice
of the condition one to be resolved by the jury”); Grizzard v. Colonial
Stores, Inc., 330 So. 2d 768, 769 (Fla. 1st DCA 1976) (where the substance
plaintiff slipped on “was identified as partially frozen, partially liquefied
orange juice concentrate” the court concluded, “a jury could find that the
substance on the floor was there long enough to partially thaw”).
For
the foregoing reasons, the trial court properly granted summary judgment in
favor of Vista and the City. Because we determine the lack of duty and
constructive notice to be dispositive, we decline to address other arguments
raised by Wilson-Greene. We therefore, affirm.
the foregoing reasons, the trial court properly granted summary judgment in
favor of Vista and the City. Because we determine the lack of duty and
constructive notice to be dispositive, we decline to address other arguments
raised by Wilson-Greene. We therefore, affirm.
Affirmed.
__________________
1The
restaurant is not a party to this appeal.
restaurant is not a party to this appeal.
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