Sonia Garcia (“Garcia”) sued Wal-Mart. She entered a store owned and operated by Wal-Mart Stores East, L.P. (“Wal-Mart”), in Kissimmee, Florida.
I was not the attorney in this case. However, I have handled and settled many slip and fall claims against Florida stores.
As Garcia walked through the store toward the garden center, she slipped and fell to the ground, landing on her left knee.
Garcia states that she slipped on a clear liquid on the floor that resembled water. After Garcia’s fall, Wal-Mart staff cleaned up the liquid from the floor.
Garcia states that she has suffered injuries to her neck, back, and left knee as a result of the fall. Wal-Mart moved for summary judgment (to get the case dismissed). The court recited the law:
Under Florida law, a premises owner owes two duties to a business invitee. They are to :
(1) Take ordinary and reasonable care to keep its premises reasonably safe for invitees; and
(2) Warn of perils that were known or should have been known to the owner and of which the invitee could not discover.” Delgado v. Laundromax, Inc., 65 So. 3d 1087, 1089 (Fla. Dist. Ct. App. 2011).
In slip and fall cases, Florida law requires a plaintiff to “prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.” Fla. Stat. § 768.0755(1).
A plaintiff may prove constructive knowledge in one of two ways. They are by:
(1) Presenting circumstantial evidence showing that the condition existed for such a period of time that the defendant should have known of the condition through its exercise of ordinary care; or
(2) Showing that the unsafe condition occurred with such regularity that it was foreseeable. § 768.0755(1)(a)-(b).
Wal-Mart did not have actual knowledge of the unsafe condition which caused Garcia’s fall.
Further, Garcia does not submit that the unsafe condition at issue in this case occurred with such regularity that it was foreseeable; rather, Garcia’s argument is through circumstantial evidence that the liquid on the floor which caused her fall existed for such a period of time that Wal-Mart should have known of its existence through the exercise of ordinary care.
The judge said four primary factors which drive the courts’ analyses:
(1) Lack of evidence indicating that a transitory substance existed
(2) Evidence of how a substance ended up on the floor
(3) The condition of a substance upon discovery, and
(4) Evidence of the business owner’s neglect in inspecting its premises.
First Category – Lack of evidence indicating that a transitory substance existed
An injured person who cannot indicate that some transitory substance caused her fall generally cannot establish constructive knowledge. The quintessential case is Feinman v. Target Corp., No. 11-62480-CIV, 2012 WL 6061745 (S.D. Fla. Dec. 6, 2012).
(A transitory foreign substance is something that should not be on the floor. It could be a grape, a banana, a box, an egg and countless other things.)
There, Mrs. Feinman and her husband visited a Target store to purchase an iPad. While walking through the store, Mrs. Feinman slipped and fell.
At their depositions, both Mrs. and Mr. Feinman testified that they could not identify what caused her to slip, although Mrs. Feinman stated that she felt “some kind of suction or something” under her shoe.
Moreover, Target’s executive team leader testified that she responded to the area immediately upon learning of the accident, but found nothing on the floor which might have caused Mrs. Feinman’s fall.
Numerous other employees and witnesses confirmed that they had seen nothing on the floor either before or after Mrs. Feinman’s fall. Without any suggestion that some substance or object caused Mrs. Feinman to slip, the court could not infer that Target had constructive knowledge of an unsafe condition.
Therefore, where an injured person cannot come forward and say, at the very least, that some substance or object caused her to slip and fall, courts will not infer constructive knowledge.1
Second Category – Evidence of how a substance ended up on the floor
Second, where a substance or object is identified, circumstantial evidence of its source may establish a business owner’s constructive knowledge.
For example, in Doudeau v. Target Corp., 572 F. App’x 970, 972 (11th Cir. 2014), the court inferred a business owner’s constructive knowledge of a substance based on an employee’s testimony that the water on which the plaintiff slipped must have come from outside, as it had just rained.
The Doudeau court specifically distinguished these facts from those in Delgado v. Laundromax, Inc. In Delgado, the court held that constructive knowledge could not be inferred because there was no evidence of any possible source where the water on which the plaintiff slipped could have come.
Therefore, the converse is also true that the lack of circumstantial evidence of a substance’s source may preclude an inference of constructive knowledge.2
Third Category – The condition of a substance upon discovery
The third category of cases emphasizes the condition of a substance upon its discovery.
Intuitively, the condition of a substance left on a floor deteriorates over time; frozen foods melt, vegetables and fruits are smashed or become dirty and wilt, solid objects become scraped and scuffed, and liquids become soiled, smeared, and show track marks and footprints.
Circumstantial evidence of a substance’s deterioration allows the inference that enough time had passed for a business owner to have constructive knowledge of the substance.3
Conversely, circumstantial evidence that a substance appears fresh, clean, or undisturbed when a plaintiff slips and falls usually precludes constructive knowledge.4
Fourth Category – Evidence of the business owner’s neglect in inspecting its premises.
The court said that circumstantial evidence of a business owner’s neglect in inspecting its premises may establish constructive knowledge. The most common examples are when a business owner fails to follow its own implemented inspection procedures or fails to inspect its premises at a reasonable rate.6
On the other hand, evidence that a business owner followed its inspection policies or inspected its premises on a regular basis may prevent a finding of constructive knowledge.7
In categorizing these cases, the Court does not mean to imply that there are no other factors which warrant consideration or that a court should conduct any weighing of factors in order to find a solution. In some cases, one factor is enough to resolve the issue of constructive knowledge.
In others, examination of multiple factors answers the question. The Court simply wished to add some unity to the great number of principles which apply to Florida slip and fall cases based on trends the Court has discover from the case law.
Garcia provided circumstantial evidence to create issue as to whether Walmart had constructive knowledge of liquid which caused her fall.
The Court concluded that Garcia has provided sufficient circumstantial evidence to create a genuine dispute as to whether Wal-Mart had constructive knowledge of the liquid which caused Garcia’s fall. As a preliminary matter, Wal-Mart did not contest that Garcia slipped on liquid in its store and that Wal-Mart’s employees cleaned up the liquid after her fall.
Rather, Wal-Mart contended that the facts here fall within the third category of cases—those that focus on the condition of the substance upon its discovery. In support, Wal-Mart points to Garcia’s deposition testimony, in which Garcia states that she did not see any liquid on the floor prior to her fall.
Garcia further testified that, after she fell, she noticed that the liquid she slipped on was “clear” and did not exhibit any dirt, footprints, or track marks. Wal-Mart’s customer service manager, Sabrina, also confirmed at her deposition that the liquid was “clear” when she arrived at the location of Garcia’s fall.
Due to the clean, clear, and undisturbed appearance of the liquid upon its discovery, Wal-Mart concluded that not enough time had passed to create constructive knowledge.
Garcia responded that Wal-Mart had constructive knowledge because it failed to inspect its premises according to its own policies. Regarding Wal-Mart’s inspection policy, store manager Peter testified that Wal-Mart teaches its employees to constantly be on the lookout for hazards on the floor.
Peter also stated that Wal-Mart employs one to three sweepers whose only duty is to constantly patrol high traffic areas, including the area in which Garcia slipped and fell. Another Wal-Mart employee testified at deposition that “every five minutes we have people in every area that go around in each department.”
Sabrina referred to Wal-Mart’s inspection policy as “constant” and also described maintenance staff whose sole duty was to walk throughout the store with brooms and mops, searching for potential hazards.
Despite Wal-Mart’s inspection policy, video surveillance footage covering from one hour before to one hour after Garcia’s fall shows that no Wal-Mart employee entered the area to inspect the floor until after the accident, meaning that an inspection had not occurred for at least one hour.
Wal-Mart did not deny that it failed to inspect the area where Garcia fell for at least one hour, but contends that Garcia’s argument is unfounded and contrary to Florida law. Wal-Mart relied heavily on Wal-Mart Stores, Inc. v. King, 592 So. 2d 705 (Fla. Dist. Ct. App. 1991), which holds that, under facts similar to those found here, Wal-Mart’s failure to conduct an inspection one and one-half hours prior to the plaintiff’s fall was not, by itself, sufficient to infer constructive knowledge. (I will talk about the King case further below.)
The inspection policy in King, however, was significantly different than Wal-Mart’s inspection policy in this case. In King, Wal-Mart’s policy was to conduct a safety sweep “several times during the day.”
Under those circumstances, it was neither unreasonable nor contrary to the policy for an inspection not to occur for a matter of hours, especially where no evidence indicated that Wal-Mart failed to follow the policy.
In this case, the unrebutted testimony of Wal-Mart’s own employees affirms that Wal-Mart’s policy is to have sweepers constantly patrolling high traffic areas—such as the area in which Garcia fell— and that inspections occur every five minutes.
Since the evidence shows that no employee inspected the area where Garcia fell for at least one hour, it is reasonable to infer that Wal-Mart failed to follow its inspection policy at least twelve times.
As such, the reasoning in King does not apply here.
Wal-Mart also characterizes Garcia’s argument as improperly shifting the burden to business owners to show that they inspected their premises in an appropriate manner in order to escape liability under a constructive knowledge theory. The Court disagreed.
Upon Wal-Mart’s showing that there is no dispute of material fact on the issue of constructive knowledge, the burden shifts to Garcia to produce evidence that shows a genuine dispute.
As described above, Garcia has done so through video surveillance footage and the deposition testimony of Wal-Mart’s employees. Because a business owner’s failure to follow its own implemented inspection procedures constitutes circumstantial evidence of constructive knowledge,[8] Garcia has met her burden on summary judgment.
Therefore, the Garcia court let the case continue on its path to trial. This case is Garcia v. Wal-Mart Stores, East, LP, Dist. Court, MD Florida 2015.
This case is in the Orlando Division of Federal Court.
Footnotes
[1] See also, e.g., Vallot v. Logan’s Roadhouse, Inc., 567 F. App’x 723, 726 (11th Cir. 2014) (affirming summary judgment in favor of business owner in part because the plaintiff and an employee could not identify any substance on which the plaintiff might have slipped); Gordon v. Target Corp., No. 07-80412-CIV, 2008 WL 2557509, at *5 (S.D. Fla. June 23, 2008) (“Gordon has failed to raise a genuine issue of material fact that there was any substance or item [on] the floor that caused her to fall. …”);Publix Super Mkts., Inc. v. Schmidt, 509 So. 2d 977, 978 (Fla. Dist. Ct. App. 1987) (finding no constructive knowledge to support a jury verdict in favor of plaintiff where the plaintiff, her husband, and other witnesses testified that they had seen nothing on the floor that might have caused the plaintiff’s fall).
Learn about Publix Supermarket slip and fall claims in Florida.
See also Evens v. Eastern Air Lines, Inc., 468 So.2d 1111 (Fla. 1st DCA 1985) (finding no constructive knowledge, in part, because the plaintiff could not identify some substance or object which caused her fall and the defendant’s flight attendants averred that they had inspected the floor immediately before the plaintiff’s fall and saw nothing).
[2] See also, e.g., Hill v. Ross Dress for Less, Inc., No. 12-23368-CIV, 2013 WL 6190435, at *5 (S.D. Fla. Nov. 26, 2013) (failure to identify source of plastic on which the plaintiff slipped precluded constructive knowledge).
[3] See, e.g., Garcia v. Target Corp., No. 13-60308-CIV, 2014 WL 505151, at *3 (S.D. Fla. Feb. 7, 2014) (constructive knowledge inferred from footprints in water); Owens v. Publix Supermkts., Inc.,802 So. 2d 315, 329 (Fla. 2001) (constructive knowledge inferred from aged condition of banana). Learn more about this case where a shopper slipped on an old banana and fell at a Florida Publix.
Montgomery v. Fla. Jitney Jungle Stores, Inc., 281 So. 2d 302, 303 (Fla. 1973) (constructive knowledge inferred from “old, wilted and dirty looking” collard leaf); Cisneros v. Costco Wholesale Corp., 754 So. 2d 819, 821 (Fla. Dist. Ct. App. 2000) (constructive knowledge inferred from grocery cart tracks and dirty footprints in water); Teate v. Winn-Dixie Stores, Inc., 524 So. 2d 1060, 1061 (Fla. Dist. Ct. App. 1988) (constructive knowledge inferred in part from thawed peas); Zayre Corp. v. Bryant,528 So. 2d 516, 516 (Fla. Dist. Ct. App. 1988) (constructive knowledge inferred from water that appeared “slimy” and exhibited grocery cart tracks); Winn-Dixie Stores, Inc. v. Guenther, 395 So. 2d 244, 246 (Fla. Dist. Ct. App. 1981) (constructive knowledge inferred from dirty water showing grocery cart tracks and scuff marks); Grizzard v. Colonial Stores, Inc., 330 So. 2d 768, 769 (Fla. Dist. Ct. App. 1976) (constructive knowledge inferred from partially thawed orange juice concentrate).
[4] See, e.g., Berard v. Target Corp., 559 F. App’x 977, 978 (11th Cir. 2014) (water that appeared “clean,” “clear,” and “fresh” despite location in high traffic area precluded constructive knowledge);Feliciano v. Target Corp., No. 2:13-cv-278-FtM-38DNF, 2014 WL 2199642, at *3 (M.D. Fla. May 27, 2014) (clean water precluded constructive knowledge); Oken ex rel. J.O. v. CBOCS, Inc., No. 8:12-cv-782-T-33MAP, 2013 WL 2154848, at *5 (M.D. Fla. May 17, 2013) (clean water devoid of track marks contributed to finding no constructive knowledge); Sammon v. Target Corp., No. 8:11-cv-1258-T-30EAJ, 2012 WL 3984728, at *3 (M.D. Fla. Sept. 11, 2012) (same); Wal-Mart Stores, Inc. v. King, 592 So. 2d 705, 707 (Fla. Dist. Ct. App. 1991) (clean liquid that showed no smudges or skid marks precluded constructive knowledge); Broz v. Winn-Dixie Stores, Inc., 546 So. 2d 83, 83 (Fla. Dist. Ct. App. 1989) (grape that exhibited no indicia of thawing, grocery cart tracks, or footprints precluded constructive knowledge).
(Learn more about Florida Winn Dixie slip and fall injury claims)
[5] See, e.g., Kertz v. United States, No. 2:12-cv-22-FtM-29SPC, 2013 WL 1464180, at *3 (M.D. Fla. Apr. 10, 2013) (constructive knowledge inferred from failure to follow inspection policy); Kenny v. United States, No. 8:10-CV-1083-T-27EAJ, 2012 WL 523624, at *3 (M.D. Fla. Feb. 16, 2012)(constructive knowledge inferred from failure to inspect floor thirty minutes prior to the plaintiff’s fall);Gerard v. Eckerd Corp., 895 So. 2d 436, 437 (Fla. Dist. Ct. App. 2005) (reversing summary judgment in favor of business owner where inspection policy appeared unreliable); Teate, 524 So. 2d at 1061 (Fla. Dist. Ct. App. 1988) (failure to inspect area for fifteen to twenty minutes prior to the plaintiff’s fall supported jury verdict finding business owner’s constructive knowledge); Schmidt v. Bowl Am. Fla., Inc., 358 So. 2d 1385, 1386-87 (Fla. Dist. Ct. App. 1978) (constructive knowledge inferred from failure of bowling alley to inspect approaches to bowling lanes for at least five and a half hours prior to the plaintiff’s fall); Jenkins v. Brackin, 171 So. 2d 589, 591 (Fla. Dist. Ct. App. 1965) (constructive knowledge inferred from failure to inspect grocery store floor fifteen to twenty minutes before the plaintiff’s fall).
[6] See, e.g., Hill, 2013 WL 6190435, at *5 (S.D. Fla. Nov. 26, 2013) (inspection of area ten minutes prior to the plaintiff’s fall contributed to finding no constructive knowledge); Oken, 2013 WL 2154848, at *5 (M.D. Fla. May 17, 2013) (unrebutted evidence that store manager inspected bathroom floor every hour pursuant to policy contributed to finding no constructive knowledge); Sammon, 2012 WL 3984728, at *3 (M.D. Fla. Sept. 11, 2012) (unrebutted evidence that floor was continuously inspected by employees precluded constructive knowledge); Walker v. Winn-Dixie Stores, Inc., No. 1D13-3781, 2014 WL 4086798, at (Fla. Dist. Ct. App. Aug. 20, 2014) (surveillance video showing employees inspecting aisle two to three minutes prior to the plaintiff’s fall precluded constructive knowledge); Zimmerman v. Eckerd Corp., 839 So. 2d 835, 836 (Fla. Dist. Ct. App. 2003) (unrebutted evidence that floor was inspected every ten to fifteen minutes precluded constructive knowledge).
Eckerd is now CVS. Learn about slip and fall injury claims against Florida CVS stores.
My Other Articles on Walmart Accident Claims in Florida
- Walmart slip and fall injury claims in Florida
- Slip and fall on slippery substance Claim against Florida Walmart dismissed
- Walmart injury and accident claims in Florida
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