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Fla. L. Weekly D2382aTop of Form

Torts
— Premises liability — Slip and fall — Counties — Trial court erred in
denying defendant county’s post-trial motion for directed verdict and judgment
notwithstanding verdict finding county liable for injuries sustained by
plaintiff when she slipped and fell on a grease spot on county-owned sidewalk
where plaintiff failed to introduce evidence that county had actual or
constructive notice of the dangerous condition — Court also erred by
permitting plaintiff to introduce irrelevant county ordinances and evidence
that barbeque stand which caused grease spot was owned and operated by off-duty
county bus drivers

MIAMI-DADE COUNTY, Appellant, vs.
WANDA JONES, Appellee. 3rd District. Case No. 3D16-2266. L.T. Case No. 12-4944.
Opinion filed November 08, 2017. An Appeal from the Circuit Court for
Miami-Dade County, Jacqueline Hogan Scola and Bronwyn C. Miller, Judges.
Counsel: Abigail Price-Williams, Miami-Dade County Attorney, and Altanese
Phenelus, Assistant County Attorney, for appellant. Lawrence J. Bohannon, P.A.,
and Keith E. Hope (Fort Lauderdale), for appellee.

(Before ROTHENBERG, C.J., and SUAREZ
and SALTER, JJ.)

(ROTHENBERG, C.J.) Miami-Dade County
(“the County”) appeals an adverse final judgment and an order denying the
County’s motion for a directed verdict, a judgment notwithstanding the verdict,
and a new trial (“post-trial motion”) entered after a jury verdict finding the
County negligent for allowing a grease spill to remain on a County-owned
sidewalk, which Wanda Jones (“Jones”) alleged caused her to slip and fall. For
the following reasons, we find that the trial court erred by denying the
County’s post-trial motion because Jones failed to introduce evidence from
which the jury could infer that the County had notice of the dangerous
condition that caused Jones to slip and fall. We also find that the trial court
erred by permitting Jones to introduce irrelevant and prejudicial County
ordinances.

BACKGROUND

Jones slipped and fell on a greasy
sidewalk owned by the County while visiting a barbeque stand located on private
property that was operated by V-II Sports Club, Inc. (“the Sports Club”). Jones
contended that a faulty grease disposal system underneath the barbeque stand
caused grease to spill out onto the sidewalk. Jones suffered injuries from her
fall and sued the County and the Sports Club. In her operative complaint, Jones
alleged that the Sports Club was responsible for creating the dangerous
condition on the sidewalk, and she alleged that the County negligently
maintained the sidewalk by allowing the dangerous condition to remain on the
sidewalk.

After a trial, the jury found the
Sports Club 50% liable, the County 50% liable, and Jones 0% liable. Thereafter,
the County filed its motion for a directed verdict, judgment notwithstanding
the verdict, and a new trial. The County argued, in relevant part, that there
was no evidence that the County had notice of the dangerous condition on the
sidewalk and that the trial court erred by permitting Jones to introduce County
ordinances and other irrelevant and prejudicial evidence in an attempt to prove
that the County had notice. After the trial court denied the County’s
post-trial motions, the County appealed.

ANALYSIS

We review the trial court’s denial
of a motion for a directed verdict and a motion for judgment notwithstanding
the verdict de novo. Marriott Int’l, Inc. v. Am. Bridge Bahamas, Ltd.,
193 So. 3d 902, 905 (Fla. 3d DCA 2015). The trial court’s evidentiary rulings
and denial of a motion for a new trial are reviewed for an abuse of discretion.
Weatherly v. Louis, 31 So. 3d 803, 805 (Fla. 3d DCA 2009); Padilla v.
Buell, 797 So. 2d 609 (Fla. 3d DCA 2001).

We begin with the general principle
in premises liability cases that “[a]ll premises owners owe a duty to their
invitees to exercise reasonable care to maintain their premises in a safe
condition.” Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 320
(Fla. 2001). “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.” Wilson-Greene
v. City of Miami, 208 So. 3d 1271, 1274 (Fla. 3d DCA 2017) (quoting Maryland
Maint. Serv., Inc. v. Palmieri, 559 So. 2d 74, 76 (Fla. 3d DCA 1990)); see
also Encarnacion v. Lifemark Hosps. of Fla., 211 So. 3d 275, 278
(Fla. 3d DCA 2017). Constructive knowledge of a dangerous condition “may be
inferred from either: (1) the amount of time a substance has been on the floor;
or (2) the fact that the condition occurred with such frequency that the owner
should have known of its existence.” Delgado v. Laundromax, Inc., 65 So.
3d 1087, 1090 (Fla. 3d DCA 2011).

In the instant case, Jones concedes
that the County did not cause the grease to spill onto its sidewalk and that
the County did not have actual knowledge of the grease on the sidewalk. We also
find no evidence in the record indicating how long the grease was present on
the sidewalk on the day that Jones fell. To the contrary, Jones testified at
trial that she did not know how long the grease had been on the ground that
day, but that it appeared “fresh.” Thus, the County’s appeal reduces down to a
very specific question: whether Jones presented evidence at trial to support
her allegation that the grease was present on the sidewalk with such frequency
that the County should have known about it.

Jones relies heavily upon
photographs of a discoloration on the sidewalk next to the barbeque stand in
order to prove that the County had constructive notice of a frequently
occurring dangerous grease spill. However, even when we consider the evidence
in the light most favorable to Jones, we cannot find any record evidence or
testimony regarding what caused the discoloration on the sidewalk, whether
there were grease spills on that area of the sidewalk in the past, and whether
anyone had identified a grease spill on the sidewalk at any point before Jones
fell. As a matter of fact, Jones testified that she did not know what caused
the discoloration in the sidewalk, and no evidence was presented indicating
that anyone had ever complained about or noticed a grease spill on the sidewalk
before. Simply put, Jones failed to present any evidence that a grease spill
occurred on the discolored sidewalk even once before Jones’s fall, let alone
with such frequency that the County should have known about it.

The remainder of the evidence that
Jones points to in order to show that the County had constructive notice does
not actually tend to show that the County should have had notice of the grease
spill. For example, Jones introduced evidence that County inspectors and employees
were present in the area numerous times over a course of years. However, Jones
did not introduce any evidence to suggest that there was grease on the sidewalk
during any of these inspections which could have put the County on notice that
the grease collection system employed by the Sports Club was insufficient.
There was also no evidence introduced that suggested that the inspections were
conducted in response to a call relating to a grease spill or that anyone had
ever reported or otherwise witnessed a grease spill in the area prior to
Jones’s fall. Accordingly, the trial court should have granted the County’s
post-trial motion and entered a judgment in favor of the County.

Although our finding that Jones
failed to introduce any evidence as to the County’s constructive notice of the
grease spill is dispositive, we additionally find that the introduction, over
objection, of County ordinances, relating to inspections and permits for public
food establishments, as evidence tending to show that the County had
constructive notice of the grease spill was error. The mere fact that an
ordinance may cover the subject of inspecting food establishments does not
imply that the County had constructive notice of a dangerous condition created
by a food establishment. In fact, the ordinances would only be relevant
in this case if they were introduced to show that the County should have but
failed to comply with its duty to inspect the barbeque stand. However, the
County has sovereign immunity from liability for enforcing or failing to
enforce its laws. See Trianon Park Condo. Ass’n, Inc. v. City of
Hialeah, 468 So. 2d 912, 922 (Fla. 1985) (“Governments must be able to
enact and enforce laws without creating new duties of care and corresponding
tort liabilities that would, in effect, make the governments and their
taxpayers virtual insurers of the activities regulated.”).

The trial court’s limiting
instruction did not limit, and in fact exacerbated the unfair prejudice and
confusion caused by the introduction of the County ordinances. The trial court
specifically told the jury that it could use the ordinance for the purpose of
determining whether the County had notice of the grease spill (even though the
ordinances are not relevant for this purpose) and told the jury that it could
not use the ordinances to establish that the County was liable for failing to
enforce its ordinances (even though that is the only way to make the ordinances
pertinent).1

Lastly, we also conclude that it was
error to allow Jones to testify that the barbeque stand was owned and operated,
in part, by off-duty County bus drivers. Such testimony was irrelevant, as the
County was not sued for the actions of its off-duty bus drivers who clearly
were not acting within the scope of their employment. The testimony unfairly
prejudiced the jury because it allowed the jury to infer that the County was or
should have been put on notice by these off-duty employees that there existed a
dangerous condition on a County-owned sidewalk. Worse still, the jury might
have concluded that the County should be held liable for the negligence of its
off-duty employees — a theory that was neither pled nor argued, and which
counsel for Jones admits would have been improper.

CONCLUSION

In summary, we find that Jones
failed to introduce any evidence to show that the County had constructive
notice of the grease spill that caused Jones to slip and fall, and therefore,
the trial court erred by denying the County’s post-trial motion. We also find
that the trial court abused its discretion by permitting Jones to introduce
irrelevant and prejudicial County ordinances and by permitting Jones to testify
that the barbeque stand owners and operators were also off-duty County
employees. If the only errors below were the improperly introduced evidences,
we would have remanded this case to the trial court for a new trial. However,
because Jones also failed to introduce any evidence to support a finding that
the County had constructive notice of the dangerous condition, we reverse the
final judgment and the trial court’s order denying the County’s post-trial
motion and remand for the entry of a judgment in favor of the County.

Reversed and remanded.

__________________

1The existence of unfair prejudice
and confusion is not hypothetical because the record demonstrates that the
questions the jury asked during deliberations related to permitting and zoning.

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