AVILA ANDRADE

v.

WAL-MART STORES EAST, LP

A. Summary Judgment Standard

Summary judgment is appropriate when “the pleadings . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).

Once the moving party demonstrates the absence of a genuine issue of material fact, the nonmoving party must “come forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed R. Civ. P. 56(e)).

The Court must view the record and all factual inferences in the light most favorable to the non-moving party and decide whether “‘the evidence presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.’” Allen v. Tyson Foods, Inc., 121 F. 3d 642, 646 (11th Cir. 1997) (quoting Anderson, 477 U.S. at 251–52).

In opposing a motion for summary judgment, the non-moving party may not rely solely on the pleadings, but must show by affidavits, depositions, answers to interrogatories, and admissions that specific facts exist demonstrating a genuine issue for trial. See Fed R. Civ. P. 56(c), (e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

A mere “scintilla” of evidence supporting the opposing party’s position will not suffice; instead, there must be a sufficient showing that the jury could reasonably find for that party. Anderson, 477 U.S. at 252; see also Walker v. Darby, 911 F. 2d 1573, 1577 (11th Cir. 1990).

B. Premises Liability Standard

A federal court sitting in diversity applies the substantive law of the state in which the case arose. Pendergast v. Sprint Nextel Corp., 592 F. 3d 1119, 1132–33 (11th Cir. 2010). In a Florida negligence claim, a plaintiff must prove the following four elements: (1) the defendant had a duty to conform to a certain standard of conduct, (2) the defendant breached that duty, (3) the breach of that duty caused damages to the plaintiff, and (4) the plaintiff sustained damages. Encarnacion v. Lifemark Hosps. of Fla., 211 So. 3d 275, 278–79 (Fla. 3d DCA 2017) (quoting Wilson-Greene v. City of Miami, 208 So. 3d 1271 (Fla. 3d DCA 2017)).

Under Florida law, a person who slips and falls on a transitory foreign substance in a business establishment has the burden of proving the business establishment had actual or constructive knowledge of the dangerous condition. Fla. Stat. § 768.0755(1). If a plaintiff cannot provide any evidence indicating the length of time that a foreign transitory substance was on the floor, there is no genuine issue of material fact, and a defendant is entitled to summary judgment. Sutton v. Wal-Mart Stores East, LP, 64 F. 4th 1166, 1169 (11th Cir. 2023) (citing Delgado v. Laundromax, Inc., 65 So. 3d 1087, 1090 (Fla. 3d DCA 2011)). In the absence of direct evidence, a plaintiff can proffer circumstantial evidence of “additional facts” showing that the substance was on the ground for a period time long enough to create an issue of fact as to whether the defendant had constructive notice. Id.

III. DISCUSSION

A. Constructive Notice

Because the Parties agree that Defendant did not have actual notice of the water on the restroom floor prior to Plaintiff’s incident and that a Wal-Mart employee did not create the dangerous condition, Defendant maintains it is entitled to summary judgment because there is also no evidence that Defendant had constructive notice. (DE 35 ¶ 11; DE 39 ¶ 11.) Constructive knowledge may be proven by circumstantial evidence showing that 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 that the condition occurred with regularity and as such was foreseeable. Fla. Stat. § 768.0755(1). i. There is no evidence that the dangerous condition existed for a length of time sufficient for Defendant to have constructive notice.

Here, Defendant’s argument that there is no evidence to show constructive notice is based on the fact that Plaintiff could not testify as to how long the water was on the floor or where it came from, and the CCTV footage shows Ms. Calvera exiting the restroom four minutes before Plaintiff entered and six minutes before her fall. Plaintiff responds that there is a disputed issue of material of fact because of the following: 1) her testimony that there were puddles² of water with six or seven footprints;²) Wal-Mart’s cleaning policies do not require documentation;³) Ms. Calvera’s deviation from these policies by using paper instead of a mop; and⁴) the lack of evidence concerning whether Ms. Calvera’s properly cleaned the restroom. Even accepting Plaintiff’s deposition account as true—that she slipped on water, saw footprints, and Wal-Mart staff cleaned up the water—the record is devoid of the “additional facts” needed to create a disputed issue of material fact as to constructive notice to survive summary judgment. Sutton, 65 So. 3d at 1090. The mere presence of water is not enough to establish constructive notice. Id.

Thus, Plaintiff’s testimony that she slipped on clear water, on its own, does not create a disputed issue of material fact. While evidence of footprints can be enough to survive summary judgment in some cases, it does not automatically warrant a denial. Skipper v. Barnes Supermarket, 573

So. 2d 411, 413 (Fla. 3d DCA 1991). For example, in Espinoza, the Eleventh Circuit held that a footprint in a warm puddle of milk was insufficient to survive summary judgment

Here, while Plaintiff testified that there were footprints, Plaintiff cannot establish that the footprints, and in turn the dangerous condition, existed long enough to preclude summary judgment. At most, the water was on the floor for six minutes—the time between Ms. Calvera exiting the bathroom and the incident. At a minimum, because there is no evidence there was water on the floor when Plaintiff entered the restroom, the dangerous condition might have existed for the less than two minutes Plaintiff was in the bathroom stall. Neither timeline is enough to establish constructive notice. See Walker v. Winn-Dixie Stores, 160 So. 3d 909, 913 (Fla. 1st DCA 2014) (affirming summary judgment for defendant where dangerous condition existed for less than four minutes).

The facts of this case are like those in Hernandez; Plaintiff’s footprint testimony cannot circumvent the fact that an employee (Ms. Calvera) inspected the bathroom six minutes prior to the incident.

Consequently, the record does not demonstrate sufficient time elapsed to find the Defendant had constructive notice of a dangerous condition and Plaintiff’s testimony alone is not enough to satisfy her burden.³ Next, to the extent Plaintiff is arguing that Defendant’s negligent maintenance of the property is evidence of constructive notice, this is not a viable theory. See Pembroke

Lakes Mall Ltd.

V. McGruder, 137 So. 3d 418, 424 (Fla. 4th DCA 2014).

The cases Plaintiff cites are not applicable because they are brought under the repealed Florida statute governing foreign transitory substances.⁴ Nor does the record or case law support Plaintiff’s argument that there is a disputed issue of material fact as to constructive notice because of Wal-Mart’s general maintenance policy, specifically the lack of “formal inspections,” the absence of a checklist or sign-in sheet to confirm the restroom was cleaned, and Ms. Calvera’s deviation from the Standard Operating Procedures (“SOP”).⁵ Courts have found a maintenance policy can create a disputed issue of material fact as to constructive notice when there is conflicting evidence as to how a store supposedly maintained its premises and how it was actually maintained. See Doudeau v. Target Corp., 572 F. App’x 970, 972 (11th Cir. 2014) (reversing summary judgment for

There is no record evidence of prior slip and falls in the women’s restroom.⁶ Nonetheless, Plaintiff asserts Defendant’s SOP is evidence that this incident occurs with regularity as to find constructive notice. (DE 35 ¶ 2.) Plaintiff does not cite to any authority which supports the notion that a general maintenance policy constitutes awareness that a dangerous condition occurred with such regularity as to be foreseeable.⁷ As such, there is no evidence of foreseeability to support a finding of constructive notice under the statute.

B. Medical Causation

Because Plaintiff has not met her burden under the statute, the causation issue is moot.

IV. CONCLUSION

It is undisputed that Plaintiff fell while at Defendant’s store.

However, there is record evidence that a Defendant employee regularly cleaned and dried the restroom floors, and that this employee exited the restroom four minutes before Plaintiff’s entry.

Moreover, there is no evidence of prior complaints of water on the floor, nor could Plaintiff testify as to whether there was water on the floor by the restroom stall door in the two minutes prior to her incident. Plaintiff's testimony on its own cannot create a disputed issue of material fact.

Accordingly, it is ORDERED AND ADJUDGED that: 1. Defendant's Motion for Summary Judgment (DE 34) is GRANTED.

2. The Court will separately issue a final judgment.

3. All hearings and deadlines are CANCELED.

4. All other pending motions are DENIED AS MOOT.

5. The case is CLOSED.

DONE AND ORDERED in Chambers in Miami, Florida, this 17th day of October, 2023. TEE ae,

UNITED STATES DISTRICT JUDGE