Torts - Slip and fall - Constructive notice - Summary judgment - Affidavits - Trial court exceeded its authority in disregarding entirety of affidavit submitted in opposition to defendant supermarket's motion for summary judgment on the basis that affiant badly repudiated her prior deposition testimony - Affiant did not badly repudiate her former deposition testimony through her description of puddle's length and disclosure of the existence of track marks and footprints leading to and from the puddle where, in her deposition, affiant was asked only about the originating source of the water and whether the puddle appeared transparent - Because puddle was arguably both expansive and subject to detectable foot traffic preceding plaintiff's fall, a factual issue as to constructive notice precluded entry of summary judgment -

45 Fla. L. Weekly D440a

Torts — Slip and fall — Constructive notice — Summary judgment — Affidavits — Trial court exceeded its authority in disregarding entirety of affidavit submitted in opposition to defendant supermarket’s motion for summary judgment on the basis that affiant badly repudiated her prior deposition testimony — Affiant did not badly repudiate her former deposition testimony through her description of puddle’s length and disclosure of the existence of track marks and footprints leading to and from the puddle where, in her deposition, affiant was asked only about the originating source of the water and whether the puddle appeared transparent — Because puddle was arguably both expansive and subject to detectable foot traffic preceding plaintiff’s fall, a factual issue as to constructive notice precluded entry of summary judgment

ROSE M. WILLIAMS, Appellant, v. RYTA FOOD CORP., etc., Appellee. 3rd District. Case No. 3D19-0126. L.T. Case No. 16-6182. February 26, 2020. An appeal from the Circuit Court for Miami-Dade County, Abby Cynamon, Judge. Counsel: Douglas H. Stein, P.A., and Douglas H. Stein, for appellant. Paul R. Pearcy, P.A., and Maureen G. Pearcy, for appellee.

(Before FERNANDEZ, LOGUE, and MILLER, JJ.)

(MILLER, J.) Plaintiff, Rose M. Williams, challenges a final order granting summary judgment and subsequent denial of rehearing, rendered in favor of Ryta Food Corp. d/b/a Top Value Supermarket (“Ryta”) in the negligence dispute below. Given that the summary judgment evidence, considered in the light most favorable to Williams, the nonmoving party, raises factual issues regarding constructive notice, we reverse and remand for further proceedings.

FACTS AND BACKGROUNDWilliams filed suit in the lower tribunal seeking compensation for injuries sustained when she slipped and fell on a puddle of water in her local supermarket. The parties engaged in discovery. Thereafter, Ryta moved for summary judgment, contending it lacked notice of a purportedly dangerous condition. See § 768.0755(1), Fla. Stat. (2019) (“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.”).¹ In opposition to the motion, Williams filed numerous exhibits, including the affidavit of her sister, Mae Robinson.

Robinson attested that, shortly after her sibling fell, she observed a pool of water on the ground in the vicinity of a cooler. She specified that the puddle was elongated and appeared to have been traversed by multiple persons, as evidenced by track marks or footprints leading both to and from the water.

Ryta sought to strike the affidavit, asserting Robinson baldly repudiated her prior deposition testimony. The trial court embraced the argument, disregarded the attestation, and entered summary judgment in favor of Ryta. A subsequently-filed motion for rehearing, accompanied by an expert affidavit, averring Ryta failed to adhere to acceptable industry standards in maintaining its refrigeration system, was denied. The instant appeal ensued.

STANDARD OF REVIEW“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) (citing Menendez v. Palms W. Condo. Ass’n, 736 So. 2d 58 (Fla. 1st DCA 1999)). The court “view[s] the facts in a light most favorable to the nonmoving party and conduct[s] a de novo review of such a judgment.” Maronda Homes, Inc. v. Lakeview Reserve Homeowners Ass’n, Inc., 127 So. 3d 1258, 1268 (Fla. 2013) (citation omitted).

ANALYSISUnder well-entrenched Florida precedent, “a party when met by a [m]otion for [s]ummary [j]udgment should not be permitted by his [or her] own affidavit, or by that of another, to baldly repudiate his [or her] previous deposition so as to create a jury issue.” Ellison v. Anderson, 74 So. 2d 680, 681 (Fla. 1954). “Nonetheless, ‘[a] party may file a subsequent affidavit for the purpose of explaining testimony given at a prior deposition, provided the explanation is credible and not inconsistent with the previous sworn testimony, even though it creates a jury issue on the opponent’s motion for summary judgment.’ ” Ouellette v. Patel, 967 So. 2d 1078, 1082-83 (Fla. 2d DCA 2007) (alteration in original) (quoting Jordan v. State Farm Ins. Co., 515 So. 2d 1317, 1319 (Fla. 2d DCA 1987)).

Here, in her deposition, Robinson was asked only two questions as to the pooled liquid. The inquiry solely concerned the originating source of the water and whether the puddle appeared transparent. Robinson declined to impute the origin and attested she “believed” the liquid was “clear.”

No query was posed, however, regarding the shape or length of the transitory substance, or the absence or presence of marks. Accordingly, Robinson’s affidavit, describing the “puddle of water” as “very long,” and disclosing the existence of “several track marks or footprints going in both directions,” did not “baldly repudiate” her former deposition testimony.² See Lesnik v. Duval Ford, LLC, 185 So. 3d 577, 583 (Fla. 1st DCA 2016) (“[The affiant] couldn’t have taken a contradictory position in his affidavit because he didn’t have one in his deposition.”); Ouellette, 967 So. 2d at 1083 (“The principle that a party defending a motion for summary judgment is entitled to all reasonable inferences in his or her favor ‘includes giving to the previous deposition any reasonable meaning which will not conflict with the subsequently filed affidavit.’ ”) (quoting Koflen v. Great Atl. & Pac. Tea Co., 177 So. 2d 529, 531 (Fla. 3d DCA 1965)); Willage v. Law Offices of Wallace & Breslow, P.A., 415 So. 2d 767, 769 (Fla. 3d DCA 1982) (“[A] party may give a subsequent affidavit for the purpose of explaining testimony given in a prior affidavit or deposition, so long as the explanation is credible, even though it creates an issue on the opponent’s motion for summary judgment.”) (citations omitted). Thus, the lower tribunal exceeded its authority in disregarding the later attestation in its entirety.

The remaining facts adduced within the affidavit, along with the other record evidence, construed in the light most favorable to Williams, established that the pool of water accumulated as the result of a slow and steady drip originating from the cooler.³ Because the puddle was arguably both expansive and subject to detectable foot traffic preceding the fall, a factual issue as to constructive notice precluded the entry of summary judgment. See Wilson-Greene v. City of Miami, 208 So. 3d 1271, 1275 (Fla. 3d DCA 2017) (“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.”) (citation omitted); Suker v. White Family Ltd. P’ship, 193 So. 3d 1028, 1029 (Fla. 4th DCA 2016) (“In this case, where plaintiffs filed the depositions of three witnesses . . . that tended to show the defendant’s actual or constructive knowledge of the dangerous conditions that existed at the tiled entrance . . ., we conclude that genuine issues of material fact remained and that the trial court erred in granting summary judgment for the defendant.”); see also Khorran v. Harbor Freight Tools USA, Inc., 251 So. 3d 962, 965-66 (Fla. 3d DCA 2018) (“Contrary to the trial court’s finding, there is record evidence sufficient to create a genuine issue of material fact precluding summary judgment for [the defendant] on whether it had actual or constructive knowledge of the dangerous condition.”) (citation omitted); Encarnacion v. Lifemark Hosps. of Fla., 211 So. 3d 275, 278 (Fla. 3d DCA 2017) (“In the absence of evidence of actual knowledge, it [is] incumbent on the plaintiff to come forward with circumstantial evidence that [the defendant], in the exercise of ordinary caution, should have known of the [dangerous] condition.”); Walker v. Winn-Dixie Stores, Inc., 160 So. 3d 909, 913 (Fla. 1st DCA 2014) (finding evidence of “the existence of liquid on the floor for a sufficient amount of time so as to put the premises owner on notice” precluded summary judgment) (citation omitted). Accordingly, we reverse the order under review and remand for further proceedings.

Reversed and remanded.

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¹In 2010, the Florida legislature repealed section 768.0710, Florida Statutes, and “enacted Section 768.0755, Florida Statutes, [with] the clear intent . . . to re-position the burden of proof in constructive knowledge negligence actions fully onto a plaintiff.” Walker v. Winn-Dixie Stores, Inc., 160 So. 3d 909, 911 (Fla. 1st DCA 2014) (citation omitted).

²“For good reason: the judicial landscape is littered with reversals of summary judgments where Ellison has been misapplied . . . ; extending it to situations where no initial opinion has ever been proffered is inconsistent with this body of precedent.” Lesnik v. Duval Ford, LLC, 185 So. 3d 577, 583 (Fla. 1st DCA 2016) (Makar, J., concurring in part, dissenting in part) (citations omitted).

³The video surveillance further demonstrated that the area in question had not been inspected twenty minutes prior to the incident. See McCarthy v. Broward Coll., 164 So. 3d 78, 81 (Fla. 4th DCA 2015) (“[E]vidence that no inspection had been made during a particular period of time prior to an accident may warrant an inference that the dangerous condition existed long enough so that the exercise of reasonable care would have resulted in discovery.”) (citation omitted).

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