Jeffrey P. Gale, P.A. // Transitory Substance Premises Liability Law in Florida

For purposes of this blog, a transitory substance is any solid or liquid substance, object, or item that is located in a place where it does not belong.

Certain legal standards must be met in order to prevail in a case for personal injuries caused by a transitory substance. Before Owens v. Publix Supermarkets, Inc., 802 So.2d 315 (Fla. 2001), the injured person had to prove that the owner or person in possession of the premises had actual or constructive knowledge of the transitory substance. Constructive knowledge required a showing “that the condition existed for such a length of time that in the exercise of ordinary care, the premises owner should have known of it and taken action to remedy it.” Colon v. Outback Steakhouse of Florida, Inc., 721 So.2d 769, 771 (Fla. 3d DCA 1998).

Florida’s appellate courts struggled to determine whether in a given case sufficient evidence existed to create a jury question on the issue of constructive notice. Owens tried to eliminate the struggle by creating a new rule:

where a plaintiff slips and falls on a transitory foreign substance in a defendant’s business premises, once the plaintiff establishes that he or she fell as a result of that transitory foreign substance, the burden shifts to the defendant to produce evidence that it exercised reasonable care under the circumstances.

The rule eliminated the need for proving actual or constructive notice and placed the burden on defendants to show they exercised reasonable care through their maintenance, inspection, repair, and warning procedures and modes of operation.

By the next legislative session, the rule announced in Owens was adopted in part and modified by the Florida Legislature. See Section 768.0710, Florida Statutes (2002). The statute was modified to shift the burden onto claimants to demonstrate that the defendant failed to exercise reasonable care.

In 2010, section 768.0710, Florida Statutes (2002) was repealed and replaced with section 768.0755, Florida Statutes. The new statute eliminated negligent maintenance, inspection, repair, warning, or mode of operation as a means of establishing fault, and it reinstated the actual or constructive knowledge standard. The differences between the statutes are explained in Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 424-26 (Fla. 4th DCA 2014):

The most significant change between sections 768.0710 and 768.0755 concerned prior notice of a dangerous condition. The older 2002 statute expressly stated actual or constructive notice was not “a required element of proof to this claim,” but the new 2010 statute expressly stated the plaintiff “must prove that the business establishment had actual or constructive knowledge of the dangerous condition.” Additionally, the new statute does not contain any language regarding the owner’s negligent maintenance, inspection, repair, warning, or mode of operation.

The McGruder court went on to say:

Under the 2002 statute, a plaintiff could succeed in a slip and fall case by showing ‘the business premises acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises,’ without showing the business had actual or constructive knowledge of the transitory foreign substance. Under the 2010 statute, however, the same plaintiff would be unable to successfully assert such a cause of action, no matter how persuasive or compelling the evidence the plaintiff had in support of the claim.

Section 768.0755 reads as follows:

(1) 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. 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.

(2) This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.

Whereas 768.0710 was a version of Owens, 768.0755 is a throwback to the law as it existed before Owens. The following cases, both pre-Owens and post-768.0755, are examples of how the law is applied. Since Owens is moot, none of the cited cases were decided under Owens.

Against Plaintiff

North Lauderdale Supermarket v Puentes, 332 So.3d 526 (Fla. 4th DCA 2021). Puentes slipped and fell on a purportedly oily substance on the floor of Defendant’s business establishment. Defendant appealed the non-modified use of standard jury instruction 401.20(a) (“Issues on Plaintiff’s Claim — Premises Liability”). In pertinent part, the instruction read as follows:

Whether Defendant, Sedano’s Supermarket #35, negligently failed to maintain the premises in a reasonably safe condition….   

Finding that the instruction was not correct, the DCA reversed. The court explained that the law in effect, section 768.0755, differs from its predecessor, section 768.0710, by not allowing for liability based solely on the business establishment’s general failure to maintain the premises, while the instruction permitted the jury to find Defendant liable on a theory of negligent maintenance without making the statutorily required finding that Defendant had actual or constructive knowledge of the dangerous condition. The court noted that the Committee on Standard Jury Instructions (Civil) at 2 (June 7, 2019), did not propose redrafting instruction 401.20(a) itself, stating that the instruction remained “accurate for premises liability claims involving a landowner or possessor’s negligence toward invitees and invited licensees that do not involve transitory foreign substances.” Id. (emphasis added).

Lago v. Costco Wholesale Corp., 233 So.3d 1248 (Fla. 3rd DCA 2017). A slip and fall case. Summary judgment for Costco affirmed on appeal. The appellate court noted the following factors: As to actual notice, Lago testified she did not see any Costco employee around the liquid or by the entrance before or when she fell. As to constructive notice, “Lago’s testimony was almost identical to the Delgado [Delgado v. Laundromax, Inc., 65 So.3d 1087 (Fla. 3d DCA 2011)] plaintiff. Lago testified that it was not raining (the slip and fall happened under an overhang in front of the Costco entrance), she did not see the liquid on the floor before she fell, she didn’t know what the liquid was (other than that it was wet), and she didn’t know how long it had been there. Lago saw no one else slip in the same busy entranceway before and after her fall.” “Without additional facts suggesting the liquid had been there for a long period of time or this happened regularly, the trial court properly granted summary judgment in favor of Costco.”

Tallahassee Med. Ctr., Inc. v. Kemp, 324 So.3d 14 (Fla. 1st DCA 2021). Trial court denial of directed verdict for defendant Tallahassee Medical Center reversed on appeal. Plaintiff fell in front of a utility-room door. The court decided that video evidence of employees moving trash bags, linen bags, and trays into the utility room next to where she fell and a housekeeping cart wheeled over the spot that she fell was not enough circumstantial evidence to get the case to a jury. The court noted that the video showed no leaks, spills, drops, or other deposits of a liquid substance onto the floor and that plaintiff saw nothing drop from the tray being carried by the employee she saw immediately before her fall. Here’s the court’s reasoning:

Plaintiffs may not stack inferences upon a debatable inference drawn from circumstantial evidence. See [State Farm Mutual v] Hanania, [261 So. 3d 684] at 687 [Fla. 1st DCA 2018]. Instead, a directed verdict should issue for a defendant “if a plaintiff relies upon circumstantial evidence to establish a fact, fails to do so to the `exclusion of all other reasonable inferences,’ but then stacks further inferences upon it to establish causation.” Id. (quoting Broward Exec. Builders, Inc. v. Zota, 192 So. 3d 534, 537 (Fla. 4th DCA 2016)). This rule against stacking inferences “protect[s] litigants from verdicts based on conjecture and speculation.” Id. (quoting Zota, 192 So. 3d at 537; see also Publix Super Markets, Inc. v. Bellaiche, 245 So. 3d 873, 876 (Fla. 3d DCA 2018) (foreclosing a jury from stacking inferences from circumstantial evidence to arrive at a verdict).

Walker v. Winn-Dixie Stores, Inc., 160 So.3d 909 (Fla. 1st DCA 2014). Summary judgment for Winn-Dixie upheld on appeal. The facts:

• Appellant saw no water or other liquid substance before she fell.
• She could not say whether she saw any such substance on the floor after she fell, although she claimed she saw “wet tracks” from the wheels of the cart.
• When asked if she saw any water tracks, Appellant responded: “I just know that my shoes got damp from the floorboard of the electric cart” while bringing the cart back to the store.
• Appellant described the condition that allegedly caused her fall as “just drops of water” that were “unnoticeable”; thus, she did not see the substance before her fall. Furthermore, she was not sure how long the water was there.
• The store manager observed a video taken by a store surveillance camera that showed two of his assistants inspecting the area where Appellant fell two to three minutes before the incident happened.
• When asked if it rained on the day in question, the manager responded that he believed it did, but “I don’t know if it just stopped or just started.” When asked why he believed it rained, Williams responded: “Because in the video, it shows that we had an umbrella rack up,” which are “plastic bags where your umbrella gets into, and that’s to keep them from dripping.” These are put out “[b]efore a rain or during a rain.”
• Pursuant to Winn-Dixie’s rainy-day policy, right before a rain or after, a mat, two cones, and an umbrella rack would be put down near the entrance door. The manager did not see the mat in place in the video footage from the time of the incident. Asked why the mat was not down, he didn’t know if it was because it had stopped raining, or if it hadn’t rained yet and his people were in the process of doing it.
• As for why the umbrella rack was there, the manager assumed that it had just rained or was about to rain.

Publix Supermarkets, Inc. v. Santos, 118 So.3d 317 (Fla. 3d DCA 2013). Plaintiff claimed to have slipped in wet spinach on the ground. After Publix furnished discovery of all slips and falls at the specific store where she fell, within the three years prior to her accident, which showed that no prior incidents occurred in the subject Publix store, Plaintiff sought to discover all incident reports relative to any occurrence at kiosks located in Publix stores within the State of Florida. The trial court ordered Publix to produce the information. On certiorari appeal, the 3rd DCA reversed. It pointed to the “business establishment” language of 768.0755, concluding it means that an injured person must now prove that the particular “business establishment” where the injury occurred had actual or constructive knowledge of the dangerous condition and discovery should be restricted to information on the particular establishment.

Publix Supermarkets v Blanco, No. 3D22-0852, Florida Court of Appeals, Third District, January 25, 2023. Described by the court as a “garden variety slip-and-fall case.” Publix sought to quash a trial court order allowing discovery which included not only the operations in the store where the alleged incident occurred but operations in over 1,300 stores throughout the country. Plaintiff insisted that the information was discoverable because it shows negligent mode of operation. Noting that under section 768.0755, negligent mode of operation is not a viable theory of recovery in slip-and-fall cases, the court reversed the trial court order. The court pointed out that the discovery request was far broader than the request in Santos, above.

Strode v Wal-Mart Stores, Inc., No. 21-13470, Non-Argument Calendar, United States Court of Appeals, Eleventh Circuit (May 24, 2022). The court affirmed summary judgment in favor of Wal-Mart. Strode slid on one foot and fell. After she was helped up, she observed a small amount of “orangeish” liquid on the floor that had smeared “about a foot.” The liquid contained track marks consistent with and debris transferred from Strode’s flip-flop. Walmart’s motion for summary relied on Strode’s failure to produce evidence that it knew liquid was on its floor, what type of liquid caused her fall, the source of the liquid, or how long it had been there or to produce any evidence “that would support an inference that the liquid was present for any substantial amount of time to charge Walmart with constructive notice.”

Encarnacion v. Lifemark Hosps. of Fla., 211 So.3d 275 (Fla. 3rd DCA 2017). Plaintiff slipped in the hallway of a hospital. She presented evidence that the slippery substance on the floor may have come from a person who was cleaning a stretcher in the hallway as she walked past and that the substance was “oily,” “dirty” and “dark.” She did not know how long the substance was on the floor. The hospital moved for summary judgment on the ground that there was a complete lack of evidence that it had actual or constructive knowledge of the condition. The trial court agreed. In affirming on appeal, the DCA noted that there was no evidence of actual knowledge, which made it incumbent on the plaintiff to come forward with circumstantial evidence that the hospital, in the exercise of ordinary caution, should have known of the condition. It decided that the “oily,” “dirty” and “dark” testimony was insufficient to create a jury issue. On that point, it stated:

For such testimony to create a jury issue, the testimony must be accompanied by a “plus,” namely some additional fact or facts from which a jury can reasonably conclude that the substance was on the floor long enough to have become discolored without assuming other facts, such as the substance, in its original condition, was not “oily,” “dirty” and “dark.” See Wilson-Greene slip op. at 6, 2017 WL 361995.

On the issue of how long the substance was on the floor, Encarnacion cited these cases:

See McCarthy v. Broward College, 164 So.3d 78 (Fla. 4th DCA 2015) (affirming summary judgment for defendant where there was no evidence of how long the substance was on the floor before the fall); Walker v. Winn-Dixie Stores, Inc., 160 So.3d 909 (Fla. 1st DCA 2014) (same); Delgado v. Laundromax, Inc., 65 So.3d 1087 (Fla. 3d DCA 2011) (same).

Angeles v. Winn-Dixie Stores, Inc., 326 So.3d 811 (Fla. 3rd DCA 2021). Summary judgment entered against plaintiff affirmed on appeal. The DCA’s summary of the evidence:

De Los Angeles testified during her deposition that the liquid detergent she slipped on was “clear,” “slippery,” “light blue,” and “not dirty,” and that there were no footprints in the detergent. She had no knowledge how long the liquid detergent had been on the floor before she fell, but testified it must have been there for at least three to five minutes, because that’s how long she was in the aisle alone before the incident occurred. She also testified she had no knowledge whether any Winn-Dixie employees were aware the liquid was on the floor. An open bottle of laundry detergent was found on the shelf near where she fell; the cap was next to the bottle, and the bottle was standing upright and was not leaking or dripping. According to the deposition of Winn-Dixie store manager, an employee had checked that area of the store five minutes before the incident occurred.

Delgado v. Laundromax Inc., 65 So.3d 1087 (Fla. 3rd DCA 2011). Summary judgment against plaintiff affirmed on appeal. As she was walking through the doorway, Delgado slipped on a clear liquid, “which appeared to be water that had been left on the floor…” She contended that Laundromax “negligently maintained the floor” of its facility “by allowing spills and debris to accumulate on the floor for long periods of time, and by failing to regularly inspect the premises for such spills and debris and to clean such spills and debris from the floor.” Laundromax contended that as a matter of law it could not have breached its duty to Delgado because it had neither actual nor constructive notice of the spill that allegedly caused Delgado to fall. Laundromax also asserted that Delgado cannot prove notice because Delgado testified that the water was clear, and as a matter of Florida law, merely having clear water on the floor does not constitute a breach of duty to Delgado. Delgado testified she did not: (1) know where the water came from; (2) see water anywhere else other than where she slipped; (3) know how long the water was on the floor before she slipped; or (4) know of anyone at Laundromax who knew the water was on the floor before she walked in. Further, there is no evidence in the record that it was raining or that it had recently rained, or that any of the facility’s washers, sinks, or other equipment was located near the door.

The DCA decided that Delgado failed to produce any evidence that Laundromax had actual or constructive notice of the water on the floor. It explained that the mere presence of water on the floor is not enough to establish constructive notice, see Broz v. Winn-Dixie Stores, Inc., 546 So.2d 83, 83 (Fla. 3d DCA 1989), thus, the record must contain additional facts in support of liability, to create a permissible inference upon which the plaintff could rely in defense against Laundromax’s motion for summary judgment. See Winn Dixie Stores, Inc. v. White, 675 So.2d 702, 703 (Fla. 4th DCA 1996). The court also decided that plaintiff failed to produce any evidence of negligent mode of operation, which it described as mode of operation such that the premises owner could reasonably anticipate that dangerous conditions would arise as a result of its mode of operation. at 1091.

For Plaintiff

Brooks v. Phillip Watts Enterprises, Inc., 560 So.2d 339 (Fla. 1st DCA 1990). It had been raining steadily over a period of time the morning plaintiff fell. The store generally used warning cones in connection with wet floors. No cones or warning signs were in place on the morning of the accident. The cashiers arrived at work at 6:00 a.m., at which time one swept the area around the front door of the store. Plaintiff arrived and fell at 6:30 a.m. The assistant manager of the supermarket testified that it was store practice to place yellow cones at the front door when it is raining, because sometimes rain blows in the door. The DCA concluded:

This evidence is sufficient for a factfinder to determine constructive notice existed of the dangerous condition on either of two theories: (1) the water was on the floor for a sufficient period of time that in the exercise of ordinary care (such as regular inspection), appellee should have known of the condition, or (2) the condition occurred with regularity and was therefore foreseeable.

The Brooks court cited these cases as examples of how constructive notice may be established by circumstantial evidence:

• Grizzard v. Colonial Stores, Inc., 330 So.2d 768, 769 (Fla. 1st DCA 1976). Time required for frozen orange juice concentrate to partially liquefy could be deemed sufficient time to constitute constructive notice.
• Winn Dixie Stores, Inc. v. Williams, 264 So.2d 862, 864 (Fla. 3d DCA 1972). The fifteen to twenty minutes the dangerous substance remained on the floor of the business premises was sufficient for the store owner to be charged with knowledge of the condition, and a reasonable time in which to correct it.
•  Schmidt v. Bowl America Florida, Inc., 358 So.2d 1385, 1387 (Fla. 4th DCA 1978). Evidence 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.

Wal-Mart Stores, Inc. v. Reggie, 714 So.2d 601 (Fla. App. 1998). Regularly overflowing and leaking garbage dumpsters were located immediately outside the entrance of a McDonald’s Restaurant within appellant Wal-Mart’s store. About an hour before plaintiff/appellee’s slip and fall, a Wal-Mart assistant manager Blanchard noticed the overflowing dumpsters. She tried to close the lids without success. She called a cleaning crew, but did not know if they arrived before the fall. On this evidence, the 4th DCA decided as follows:

the jury could reasonably draw the inference that the dangerous condition was caused by the overflowing garbage containers; and that Wal-Mart had constructive notice of the dangerous condition in either of two ways—by the length of time between the condition as noticed by Ms. Blanchard and the time appellee fell or by evidence that the condition occurred in that area with sufficient regularity as to be foreseeable. Furthermore, the evidence that Ms. Blanchard notified Wal-Mart of the overflowing garbage containers an hour before appellee fell, coupled with the absence of evidence that appellant responded at all, would permit the jury to find that Wal-Mart had actual knowledge of the dangerous condition.

Fazio v. Dania Jai-Alai Palace, Inc., 473 So.2d 1345 (Fla. 4th DCA 1985).

McCurry v. Investment Corporation of Palm Beach, 548 So.2d 689 (Fla. 4th DCA 1989).

Skipper v. Barnes Supermarket, 573 So.2d 411. The Barnes customer accident report of the incident indicates the subject accident occurred at 8:20 p.m. A “sweeplog policy” requires the personnel to use a time card for their sweeplog, and to sweep each store in its entirety on an hourly basis during the business day. The time card for sweeps in the store showed the last sweep was performed between 7:00 and 7:15 p.m. The store manager stated the last sweep should have been done at 8:00 p.m. As Appellant was pushing a grocery cart, she suddenly found herself walking in spaghetti and immediately fell. She did not see the spaghetti before she fell. She described the spaghetti as strewn all over the aisle floor, extending fifteen to twenty feet in length. Appellant was unable to state how long the spaghetti had been on the floor, or to explain how it happened to be there. Appellant’s daughter-in-law testified that the spaghetti was spread in a way that indicated someone had walked on it before appellant came upon it. The security guard on duty at Barnes Supermarket on the evening in question testified that the noodles were broken into “pretty good little pieces,” which were scattered “a little bit everywhere,” about two feet from the shelves lining the aisle for a distance two to three feet long. He said that although he reported the condition of the aisle to the assistant manager, Barnes employees did not sweep and clean the spaghetti from the aisle until after the store closed. Despite all of this, on summary judgment the trial court found that appellant failed to prove that Barnes Supermarket, or its agents or employees, had actual or constructive notice that there was spaghetti on the floor when appellant’s accident occurred. The ruling was reversed, with DCA stating as follows:

The evidence in this case, together with its reasonable inferences, would support a finding that Barnes Supermarket had constructive notice of the dangerous condition of its premises, because of the broken and spread-about condition of the spaghetti suggests that it had been on the floor for sufficient time that in the exercise of ordinary care Barnes should have known of the dangerous condition.

Food Fair Stores of Florida v. Moroni, 113 So.2d 275 (Fla. 2d DCA 1958). The plaintiff slipped and fell on a piece of wet spinach. Operational negligence was alleged, namely, that the condition was created by the store management, its servants, or employees. The court allowed circumstantial evidence and decided the defendant’s operating procedures in replenishing its vegetable bins was sufficient for the jury on the issue of whether the cause of the fall was brought about by the defendant’s employees.

In Nance v. Winn Dixie Stores, Inc., 436 So.2d 1075 (Fla. 3d DCA 1983), review denied, 447 So.2d 889 (Fla. 1984), the court decided that appellee’s safety manual, with its repeated warnings about the hazards and consequences of debris left on the floor, should be allowed in evidence for the purpose of showing notice and foreseeability.

Firth v. Marhoefer, 406 So.2d 521 (Fla. 4th DCA 1981). The court felt that appellant should have been allowed to adduce evidence that the landlord had previously maintained a carpet on the floor of the elevator to absorb liquids, droppings, and other matter that could make the floor slippery, and that the carpet had been permanently removed prior to appellant’s accident, exposing a linoleum floor on which appellant slipped. Its holding:

Constructive knowledge of a dangerous condition can be imputed to a landlord where it can be shown that the condition recurred with regularity and, consequently, was foreseeable.  “Minimal standards of proper maintenance require the landlord to anticipate dangerous conditions that recur regularly, and to take some precautions.” Harris v. H.G. Smithy Co., 429 F.2d 744, 746 (D.C. Cir.1970). This principle was operative in Bennett v. Mattison, 382 So.2d 873 (Fla. 1st DCA 1980), where the court held that repeated verbal and written warnings to the owners of an apartment building that a hallway was slippery and dangerous were sufficient to put them on notice of the recurring nature of the problem and thus created a jury question as to whether the landlords exercised reasonable care to guard against a foreseeable danger.

In this vein, plaintiff may use evidence of the occurrence or non-occurrence of prior or subsequent accidents to prove constructive notice of the dangerous character of a condition. Perret v. Seaboard Coast Line Railroad Co., 299 So.2d 590 (Fla. 1974); Lasar Manufacturing Co., Inc. v. Bachanov, 436 So.2d 236 (Fla. 3d DCA 1983); Reinhart v. Seaboard Coast Line Railroad Co., 422 So.2d 41 (Fla. 2d DCA 1982); Bucyrus-Erie Co. v. Hessey, 421 So.2d 672 (Fla. 3d DCA 1982); Wood v. Walt Disney World Co., 396 So.2d 769 (Fla. 4th DCA 1981); Corbett v. Seaboard Coast Line Railroad Co., 375 So.2d 34 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1202 (Fla. 1980); Warn Industries v. Geist, 343 So.2d 44 (Fla. 3d DCA), cert. denied, 353 So.2d 680 (Fla. 1977); Seaboard Coast Line Railroad Co. v. Friddle, 290 So.2d 85 (Fla. 4th DCA), rev’d, 306 So.2d 97 (Fla. 1974) (adopting dissenting opinion).

Miscellaneous

McCarthy v. Broward Coll., 164 So.3d 78 (Fla. 4th DCA 2015). Appellant contended that, because Broward College is a state-owned institution of higher education, it is not a “business establishment” for the purposes of 768.0755. Citing the definition of “business establishment” described in Publix Supermarkets, Inc. v. Santos, 118 So.3d 317 (Fla. 3d DCA 2013) the 4th held that Broward College is a business establishment where “services are rendered” for a fee. It noted that the statute has been held to apply to other service-based, government-owned entities, such as Miami International Airport (Kenz v. Miami-Dade Cnty., 116 So.3d 461 (Fla. 3d DCA 2013)) and a U.S. Postal Service facility (Kertz v. U.S., 2013 WL 1464180 (M.D.Fla. Apr.10, 2013)).

The cases cited in this blog, which are just the tip of the iceberg, show how difficult it is to figure out whether in a given case sufficient evidence exists to create a jury question on the issue of constructive notice. It is why the Supreme Court of Florida ruled as it did in Owens. Of course, Owens is not the law anymore.