Leftwich slipped and fell on a clear liquid on the floor of a Wal-Mart. A key piece of evidence is about nine minutes of video leading up to the incident. A display in the center of the aisle obstructed a clear view of the floor, preventing the liquid itself from being viewable on the video.
About eight or nine minutes prior to the fall, Heath Peterson, a Wal-Mart employee, pulled a pallet across the floor, but the pallet was not leaking and it was not pulled over the exact area where the liquid was later found. The key to the case was that he later swore that he was 100% certain he’d have seen the liquid if it had been there at that time, and the liquid was not present. Over the course of seven or eight minutes, seven customers and three shopping cards passed through the area without incident. Then Leftwich walked through the area and fell, and her adult son, Mr. Revels, witnessed it.
Plaintiff Leftwich admitted that the liquid was clear in color. The son, however, stated that there were what looked like shopping cart wheel marks and footprints running through the liquid, and both of them described the marks and footprints as dirty.
Section 768.0755(1), Fla. Stat. (2019), provides an additional hurdle for plaintiffs to leap over in order to sue a business establishment for premises liability arising from a slip-and-fall on any kind of transitory foreign substance on the floor. The plaintiff must show that the business had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. There was no evidence of actual notice here. Constructive knowledge may be proven by circumstantial evidence showing that either 1) 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 (2) the condition occurred with regularity and was therefore foreseeable.
Wal-Mart moved for summary judgment, arguing that it had no constructive notice of the liquid. The trial court granted the motion, and Leftwich appealed.
The DCA noted that in order to survive summary judgment, the non-movant to show that any inference drawn in its favor “is reasonable in light of competing inferences.”
The DCA followed what seems to be turning into something approaching a clear rule in Florida: generally, if a foreign transitory substance has been present for 15 to 20 minutes, that has been deemed “sufficient for defendants to be charged with knowledge of the condition and a reasonable time in which to correct it.”
The mere presence of water on the floor is not enough to establish constructive notice. The record must contain additional facts in support of liability such as footprints, wheel tracks, or the liquid becoming dirty enough to indicate the passage of time. These have been referred to as “plus” facts. But here, the DCA stated that the “plus” facts still aren’t enough if they don’t allow a jury to infer that the condition existed for a length of time sufficient to establish constructive notice “without assuming other facts.”
In the majority’s view, the testimony from Employee Peterson that he was sure that the liquid wasn’t there when he dragged a pallet by the spot of the fall nine minutes before the fall was sufficient to overcome the “plus” facts. The majority admits that he not testified he was sure, the plus facts would have been sufficient to get to a jury. The video showed a multitude of customers standing, walking, and pushing carts through the exact spot where the liquid was found in the nine minutes between Peterson leaving the area and the incident. Any one of those customers could have dropped, spilled, or dripped the “clear” liquid onto the floor, potentially within just seconds of Appellant encountering the liquid. As such, the video combined with Peterson's testimony does not support a permissible inference that the condition existed for a sufficient length of time to establish that Walmart had constructive notice. To reach Appellant's desired inference, a jury would have to impermissibly stack inferences.
The majority opinion distinguished Sutton, the Eleventh Circuit opinion relied upon by JUDGE SOUD’s DISSENT, by stating that while there were plus factors in that case (a dirty grape and dirty footprints) and customers and employees were shown on video passing through the area 10 minutes prior to Sutton’s fall, the store employees presented testimony that they did not see the grape, but they did not say they were certain it hadn’t been there. Also, the employees’ testimonies were “undermined by the account offered by [appellant] and the video itself.” Here, though, Employee Peterson testified affirmatively that the liquid was on the floor for less than ten minutes because he definitely would have seen it. The video does not undermine Peterson's version of events, nor does it conflict with Appellant's testimony. Rather, the video provides a reasonable explanation for the presence of a “clear” liquid, dirty wheel marks, and footprints, all of which would have occurred and been created by any of the identified groups of customers, including the group that passed through just moments before Appellant, in the nine minutes prior to the incident but after Peterson left the area.
Once Walmart met its initial burden, the burden shifted to Appellant “to come forward with counterevidence sufficient to reveal a genuine issue, which Appellant was unable to do. Although a jury could choose to disbelieve Peterson's testimony, this is not enough to survive summary judgment under these circumstances. Instead, the plaintiff had to present affirmative, concrete evidence that would allow a reasonable jury to rule for her. AFFIRMED.
CHIEF JUDGE EDWARDS CONCURRED, but JUDGE SOUD DISSENTED.
Judge Soud would have reversed and remanded for further proceedings. He observed that facts sufficient to show the “plus” factors are ‘evidence of footprints, prior track marks, changes in consistency, [or] drying of the liquid,’ or evidence that the liquid was ‘dirty’ or ‘scuffed.’ Here, he thought that the “plus” factors created a genuine dispute of material fact as to how long the liquid was present. Leftwich and her son both testified that they saw dirty footprints and shopping cart wheel tracks through the liquid, Employee Peterson testified—contrary to the testimony of Leftwich and her adult son—that he did not see any wheel tracks or footprints having gone through the liquid. (NOTE: This is an important fact that the majority left out. It either shows that the fact witnesses disagreed whether the “plus” factors were present or it shows that a jury could find Employee Peterson’s claim that he always sees everything he walks past is not credible).
Florida courts have long held that the plus factors require the submission of the case to a jury. Judge Soud found Sutton to be indistinguishable. Judge Sutton observed that the majority opinion was “impermissibly corrosive to the sacrosanct right to trial by jury so valued since Florida was admitted to the Union,” citing the Florida Constitution’s right to a jury trial.