VANESSA SUTTON

v.

WAL-MART STORES EAST, LP

[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit No. 22-10162 VANESSA SUTTON, Plaintiff-Appellant, versus WAL-MART STORES EAST, LP, Defendant-Appellee. Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 9:21-cv-80646-DMM

I.

On August 23, 2018, Vanessa Sutton was shopping at a Wal- Mart in West Palm Beach, when she slipped on a grape and fell onto her back and left side. A nearby employee, Judith Roberts, helped her get up, but Sutton told Roberts that she felt dizzy. * Honorable Kathryn Kimball Mizelle, United States District Judge for the Middle District of Florida, sitting by designation.

22-10162 Opinion of the Court 3 Sutton then filled out a Customer Incident Report, and later went to Palm Beach Gardens Hospital, where she received treatment. Roberts had walked through and inspected the produce section by the grapes twice before the fall: once around an hour before, and again around thirty minutes before. She did not see a grape either time. Another employee, Dunois Orilus, walked through the produce section around ten minutes before the accident, and he didn't see anything either. A two-hour video pulled from Wal-Mart's surveillance cameras confirms that these employees walked by at those times, but, otherwise, it does not conclusively establish much. The ground where the grape was located isn't visible, and nobody who walked by during the recording obviously knocked over or dropped a grape. For her part, Sutton testified that she slipped on one squished grape, which she first saw "[w]hen [she] was on the floor." From the floor, Sutton "could see that grape . . . and juice,” and she saw that "the grape was dirty.” She also noticed one track mark "[a] few inches" away that "was close enough to it to go through it" and "footprints but [she] didn't know whose footprints they were." At one point, she said that the footprints “must have been [hers], 'cause [she's] the one that slipped and fell” and she “[didn't] know who else had went through" the grape. Sutton sued Wal-Mart Stores East, LP, for negligence in state court. Wal-Mart removed the case to the United States District Court for the Southern District of Florida based on diversity jurisdiction. After discovery, Wal-Mart moved for summary

II.

“We review a district court's decision on summary judgment de novo and apply the same legal standard used by the district court, drawing all inferences in the light most favorable to the nonmoving party and recognizing that summary judgment is appropriate only where there are no genuine issues of material fact.” Smith v. Owens, 848 F. 3d 975, 978 (11th Cir. 2017). The only question for us to decide is whether the record evidence, when viewed in a light most favorable to Sutton, contains a genuine dispute of material fact over Wal-Mart's constructive knowledge of the grape that caused her fall. This negligence case arose in Florida and arrived in federal court by way of diversity jurisdiction, see 28 U.S.C. § 1332(a), so we are required to apply Florida's substantive law, see Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). "Where the Supreme Court of Florida has not addressed a particular issue, federal courts are then bound by the decisions of the Florida district courts of

22-10162 Opinion of the Court 5 appeal that address the disputed issue, unless there is an indication that the supreme court would not adhere to the district court's decision." Geary Distrib. Co. v. All Brand Imps., Inc., 931 F. 2d 1431, 1434 (11th Cir. 1991) (per curiam). Under Florida law, a plaintiff must establish four elements to sustain a negligence claim: (1) "the defendant owed a 'duty, or obligation, recognized by the law, requiring the [defendant] to conform to a certain standard of conduct, for the protection of others against unreasonable risks”; (2) "the defendant failed to conform to that duty"; (3) there is “[a] reasonably close causal connection between the [nonconforming] conduct and the resulting injury' to the claimant"; and (4) “some actual harm.” Williams v. Davis, 974 So. 2d 1052, 1056 (Fla. 2007) (alterations in original) (citation omitted). Additionally, under Florida statutory law, [i]f 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: (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 (b) The condition occurred with regularity and was therefore foreseeable.

22-10162 Opinion of the Court 7 minutes or less is not enough time. See Oliver v. Winn-Dixie Stores, Inc., 291 So. 3d 126, 127–30 (Fla. 4th DCA 2020); see also Walker v. Winn-Dixie Stores, Inc., 160 So. 3d 909, 912 (Fla. 1st DCA 2014) (holding "less than four minutes” to be insufficient). It is rare, however, that there will be direct evidence of how long a substance was on the ground, and "the mere presence” of the substance "is not enough to establish constructive notice.” Delgado v. Laundromax, Inc., 65 So. 3d 1087, 1090 (Fla. 3d DCA 2011). So, in the absence of direct evidence, Florida law requires that the plaintiff introduce circumstantial evidence of “additional facts" showing that that the substance had been on the ground for an extended period before the slip-and-fall to survive summary judgment. Id. Here, two pieces of circumstantial evidence -- when considered in a light most favorable to the non-moving party create a genuine dispute over the length of time that the grape was on the floor before Sutton fell. First, and primarily, Sutton's own testimony created a jury issue on constructive notice. Sutton did not see the grape before she fell. After the fall, however, she testified that she saw a “dirty" grape with "track marks going through the grape and liquids,” as well as "footprints.” Time and again, Florida's appellate "courts have found constructive notice” when “the offending liquid was dirty, scuffed, or had grocery-cart track marks running through it," or if there was “[o]ther evidence such as 'footprints, prior track marks, changes in consistency, [or] drying of the liquid.” Norman v. DCI Biologicals Dunedin, LLC, 301 So. 3d 425, 429–30 (Fla. 2d

22-10162 Opinion of the Court 9 1989); Broz v. Winn-Dixie Stores, Inc., 546 So. 2d 83, 83 (Fla. 3d DCA 1989) (per curiam). The Fifth District Court of Appeal's opinion in Welch offers the most recent examination of this issue. See 2023 WL 2542275, at *1-3. In Welch, the trial court had granted summary judgment for the defendant in a slip-and-fall case where the evidence included dirty liquid and "footprints in the puddle that were going in different directions" and that the plaintiff testified, with “certainty," “were not hers.” Id. at *1. The appellate court reversed, emphasizing that "[i]n trying to assess how long a substance has been sitting on a floor, courts look to several factors, including 'evidence of footprints, prior track marks, changes in consistency, [or] drying of the liquid." Id. at *2 (second alteration in original) (emphasis and citation omitted). It stressed that "footprints are a common feature of analogous slip and fall cases that survive summary judgment because they allow a jury to find that the substance was on the ground long enough for the defendant to discover it before the plaintiff's fall." Id. The court observed that while the "dirty, murky, and slimy" liquid was "not enough -- by itself -- to create a jury question on constructive knowledge,” the additional testimony of "footprints in the puddle -- not belonging to” the plaintiff "raise[d] a fact question about [the defendant's] constructive knowledge." Id. As a result, the Fifth District Court of Appeal reversed the grant of summary judgment and remanded the case for trial. Id. at *3.

22-10162 Opinion of the Court 11 Dixie after a woman slipped and fell on a grape in the store.² 291 So. 3d at 127, 130. But, on closer examination, Oliver reinforces the principle that a track mark or footprints provide the "additional facts" necessary to create a genuine dispute over constructive knowledge. See Delgado, 65 So. 3d at 1090. 2 Wal-Mart also relies on Berbridge v. Sam's East, Inc., 728 F. App'x 929 (11th Cir. 2018) (per curiam), and a slew of federal district court cases, claiming that in addition to evidence of a track mark or footprints a plaintiff must offer something more to create a genuine dispute of material fact. Unlike the large body of Florida case law we have cited, these cases are not binding on this Court. Rather, we are obliged to follow Florida's appellate courts in discerning Florida law. But, in any event, Wal-Mart misapprehends some of their holdings -- which actually support reversal here. In Berbridge, for instance, "the fact of a 'dirty' liquid substance” without additional evidence was not enough to survive summary judgment, but a panel of this Court observed that additional "circumstances could support an inference of constructive knowledge." Id. at 933. Likewise, in one district court case, Ayers v. Wal- Mart Stores, East, L.P., “[i]t [was] undisputed that the water was clean with no footprints, track marks, or smudges,” so there were no additional facts establishing constructive notice. No. 15-24663-CIV, 2017 WL 747541, at *1–3 (S.D. Fla. Feb. 27, 2017). Three other district court cases cited by Wal-Mart suggest that a plaintiff needs something more than a track mark or footprints to reach a jury. See Hernandez v. Sam's E., Inc., No. 20-CV-61648, 2021 WL 1647887, at *5 (S.D. Fla. Apr. 26, 2021); Granela v. Wal-Mart Stores E., L.P., No. 19-cv-23726, 2021 WL 768271, at *3 (S.D. Fla. Feb. 26, 2021); Rubiano v. Costco Wholesale Corp., No. 15-cv-24291, 2016 WL 7540571, at *3 (S.D. Fla. Oct.⁴, 2016). Again, these cases are not binding, and they do not accurately recount Florida law. See Woods, 621 So. 2d at 711 (“[T]racks in a substance generate[] [a] sufficient inference[] of constructive notice.").

22-10162 Opinion of the Court 13 notice. See Tallahassee Med. Ctr., Inc. v. Kemp, 324 So. 3d 14, 16 (Fla. 1st DCA 2021) (per curiam) (noting that a plaintiff “may use circumstantial evidence -- like the video evidence here to prove her case"). The video spans an hour and fifteen minutes before Sutton's fall; and it runs two hours in all. The video never shows anyone dropping a grape on the floor. As Wal-Mart admits, “the video does not show the alleged condition, how it got on the floor, or when." A reasonable jury could infer from the absence of a clear moment when the grape fell to the floor in the video that the grape had been on the floor for more than one hour -- far exceeding the time required for constructive knowledge. See Williams, 264 So. 2d at 864. Nevertheless, Wal-Mart insists that the affidavits of Roberts and Orilus establish not only that they walked by a total of three times over the course of an hour (and one time ten minutes) before the fall, but that they never saw a grape. That testimony is undermined by the account offered by Sutton and the video itself. So a jury must settle the score. Wal-Mart also argues that Sutton did not present evidence of where the grape came from, how it landed on the floor, or when it got there. All of that is true. But Florida law does not demand direct evidence about who or what caused the dangerous substance and when exactly it happened. Instead, circumstantial evidence that sufficiently establishes the dangerous condition was present for a long enough period of time is enough. See Fla. Stat. § 768.0755(1)(a). Taken in a light most favorable to the plaintiff, Sutton offered ample evidence.