LAMASSA v. WALMART STORES EAST LP (2023)

ORDER DENYING MOTION FOR SUMMARY JUDGMENT

This case involves a slip-and-fall incident at one of Defendant Wal-Mart's South Florida stores, where Plaintiff Barbara Lamassa was shopping and slipped and fell over a hand sanitizer puddle. Plaintiff Barbara, along with her husband, Plaintiff Joseph Lamassa, then sued Defendant for premises liability negligence and loss of consortium. Defendant Wal-Mart now moves for summary judgment on Plaintiffs’ negligence claim, arguing that the Court should grant summary judgment in Wal-Mart's favor because the record evidence shows no genuine issue of material fact as to whether Wal-Mart had constructive notice of the dangerous condition to establish breach, as required by Florida's transitory foreign substance statute. The Court denies the motion for summary judgment, holding that there is a genuine issue of material fact as to whether Wal-Mart had constructive notice of the dangerous condition.

FACTS

Plaintiff Barbara Lamassa was shopping with her son in one of Defendant's Wal-Mart stores when she slipped and fell over a puddle of liquid, which she testified was hand sanitizer. Plaintiff Barbara testified in her deposition that she did not see the hand sanitizer puddle until she slipped and fell over it. [D.E. 26 at ¶ 22]. Photos taken of the area after the slip and fall show what appears to be dark shopping cart skid marks and a footprint over the puddle. [D.E. 25 at 3-5]. Further, Defendant's CCTV video footage of the area where Plaintiff Barbara slipped and fell appears to show no Wal-Mart employee walking through nor inspecting the area where Plaintiff slipped and fell one hour before Plaintiff's incident. [D.E. 25-3]. Plaintiffs (i.e., Barbara Lamassa and her husband, Joseph Lamassa) sued Defendant for negligence and loss of consortium. Defendant moves for summary judgment in its favor on the issue of whether Defendant had the requisite notice to establish Defendant's breach of its duty of care owed to Plaintiff Barbara.

STANDARD OF REVIEW

A “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant has the “burden to demonstrate the basis for its motion, and [it] must identify the portions of the record ‘which it believes demonstrates the absence of a genuine issue of material fact.’ ” Id. (internal quotation marks omitted). “The movant may meet this burden by demonstrating that the nonmovant has failed to present sufficient evidence to support an essential element of the case.” Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). See also Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593 (11th Cir. 1995) (The movant may satisfy its burden “by ‘showing’ or ‘pointing out’ to the Court that there is an absence of evidence to support the non-moving parry's case.” (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548)). Provided that the movant meets its burden, the burden then shifts to the nonmovant to show that a genuine issue of material fact exists. Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1311-12 (11th Cir. 2018).

To establish a factual dispute sufficient to avoid the entry of summary judgment, the nonmovant must go beyond the pleadings and “set forth specific facts showing that there is a genuine issue for trial.” A.L. ex rel. D.L. v. Walt Disney Parks & Resorts US, Inc., 900 F.3d 1270, 1289 (11th Cir. 2018) (citation omitted). “However, a mere scintilla of evidence in support of the non-moving party's position is insufficient to defeat a motion for summary judgment.” Kesinger ex rel. Est. of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citation omitted). Nevertheless, courts “must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party.” Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997) (citation omitted).

DISCUSSION

a. Florida negligence law applies.

In diversity cases, such as the instant case, the Court 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). Considering that Plaintiffs are suing Defendant for negligence, Florida negligence law applies. Florida negligence law requires that Plaintiffs 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.” Felder v. Sam's E., Inc., No. 22-cv-60962-BLOOM, 2023 WL 3600041, at *3, 2023 U.S. Dist. LEXIS 89531, at *7 (S.D. Fla. May 22, 2023).

b. Defendant owed Plaintiff Barbara a duty to use reasonable care to maintain its premises in a safe condition.

In a premises liability case, such as the instant case, the premises owner owes business invitees “ ‘a duty to exercise reasonable care to maintain [its] premises in a safe condition.’ ” Id. at *3, 2023 U.S. Dist. LEXIS 89531, at *7-*8 (quoting Encarnacion v. Lifemark Hosps. of Fla., 211 So. 3d 275, 277-78 (Fla. 3d DCA 2017)). The Parties do not dispute that Plaintiff Barbara was a business invitee of Defendant. Thus, Defendant owed Plaintiff Barbaba a duty to use reasonable care to maintain its store premises in a safe condition. Having satisfied the first element, the Court will assess the disputed second element of Plaintiffs’ claim (i.e., whether Defendant breached its duty of care).

c. Establishing breach in slip-and-fall negligence cases under Florida law

To show a breach in a premises liability case involving a transitory foreign substance, Florida law requires that Plaintiffs prove Defendant had prior notice of the dangerous condition. Section 768.0755, Florida Statutes, provides the following:

(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.

§ 768.0755(1), Fla. Stat. (2022).

i. Defendant's actual knowledge of the dangerous condition is not raised by Plaintiffs.

Plaintiffs do not argue that Defendant had actual knowledge of the dangerous condition, i.e., the puddle of hand sanitizer in the Walmart store. Thus, Plaintiffs have failed to show a genuine issue of material fact sufficient to deny summary judgment on whether Defendant had actual notice of the dangerous condition.

Accordingly, the Court focuses on whether Defendant had constructive knowledge of the dangerous condition. Section 768.0755 offers two methods for showing that Defendant had constructive notice of the dangerous condition:

(1) 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.

§ 768.0755(1)(a)-(b), Fla. Stat. (2022).

ii. Plaintiffs do not argue Defendant's constructive notice under the ‘regularity’ prong of section 768.0755, Florida Statutes.

Defendant argues that there is no evidence that the hand sanitizer puddle occurred with any regularity to impute Defendant with constructive notice. Plaintiffs do not attempt to establish Defendant's constructive knowledge by showing that the dangerous condition occurred with regularity and was thus foreseeable. Accordingly, Plaintiffs have failed to show a genuine issue of material fact sufficient to deny summary judgment on whether Defendant had constructive knowledge of the dangerous condition via the ‘regularity’ prong of section 768.0755(1)(b), Florida Statutes.

Thus, the Court focuses on the ‘length-of-time prong’ of section 768.0755(1)(a) to determine whether Defendant was imputed with constructive knowledge of the dangerous condition.

iii. A genuine issue of material fact exists on Defendant's constructive notice under section 768.0755’s ‘length of time’ prong.

Defendant argues that there is no evidence that the hand sanitizer was on the floor for a sufficient length of time to impose constructive knowledge upon Defendant. Plaintiffs argue that the presence of footprints, shopping cart tracks, scuffs, or dried liquid creates a genuine issue of material fact on Defendant's constructive notice.

A discussion of Sutton v. Wal-Mart Stores, East, LP, 64 F.4th 1166 (11th Cir. 2023) is pertinent here. In Sutton, the plaintiff was shopping at a Wal-Mart store, where she slipped on a grape and fell. Sutton, 64 F.4th at 1168-69. The plaintiff sued Wal-Mart for premises liability negligence, and the trial court granted Wal-Mart's motion for summary judgment, accepting Wal-Mart's argument that the plaintiff failed to show sufficient evidence that Wal-Mart had actual or constructive knowledge of the grape. Id. at 1168. On appeal, the Eleventh Circuit reversed and held that a genuine issue of material fact existed on Wal-Mart's constructive notice. Id. at 1170. Where the plaintiff did not see the grape before falling and “testified that she saw a ‘dirty’ grape with ‘track marks going through the grape and liquids,’ as well as footprints[,]” the Eleventh Circuit explained that, in assessing how long a liquid has been on the floor, “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.” ’ ” Id. at 1169-70 (quoting Norman v. DCI Biologicals Dunedin, LLC, 301 So. 3d 425, 429-30 (Fla. 2d DCA 2020)).

Like the Sutton plaintiff, Plaintiff Barbara did not see the hand sanitizer puddle until she slipped and fell over it. [D.E. 26 at ¶ 22]. As in Sutton, however, the photos referred to in Plaintiffs’ Response to the Defendant's Motion for Summary Judgment show dark marks which could be footprints, smears, and/or scuff marks over and around the area where Plaintiff Barbara slipped and fell. [D.E. 25 at 3-5]. Moreover, Plaintiff Barbara testified in her deposition that, after she fell, she saw “scuff marks, like people had been walking over [the hand sanitizer puddle and] cart wheel marks going through it.” [D.E. 26 at ¶¶ 22-29]. Contrast with Berard v. Target Corp., 559 F. App'x 977, 978 (11th Cir. 2014) (affirming trial court's grant of summary judgment in favor of the defendant where the plaintiff testified that the offending liquid was “clean,” “clear,” and not “dirty[,]” that there area surrounding the spill was “clean and dry[,]” and that plaintiff did not see footprints, cart tracks, or other marks through the spill).

Plaintiffs also argue that Defendant's own CCTV video confirms that no Wal-Mart employee inspected the area for an hour prior to Plaintiff Barbara's slip and fall.

In Sutton, the Eleventh Circuit—in finding that the summary judgment record raised a genuine issue of material fact on the defendant's constructive notice—considered the defendant's two-hour CCTV video showcasing footage of the area in the Wal-Mart store where the plaintiff slipped and fell over the grape. 64 F.4th at 1169. The Eleventh Circuit noted the following:

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.

Id. at 1171 (citing Winn Dixie Stores, Inc. v. Williams, 264 So. 2d 862, 864 (Fla. 3d DCA 1972) (noting that Florida courts have found “at least 15 to 20 minutes ․ to be sufficient for defendants to be charged with knowledge of the condition and a reasonable time in which to - correct it.”)).

Another factually analogous case, Gonzalez v. Wal-Mart Stores, Inc., 2023 WL 4841921, at *2-*3, 2023 U.S. App. LEXIS 19400, at *4-*6 (11th Cir. July 28, 2023), warrants discussion. There, the plaintiff was shopping at a Wal-Mart store and slipped and fell over a white substance that allegedly leaked from an overloaded cart next to the fall area. Gonzalez, 2023 WL 4841921, at *1, 2023 U.S. App. LEXIS 19400, at *2. After the plaintiff sued the defendant for negligence, the defendant moved for summary judgment on the issue of whether the defendant had constructive notice of the dangerous condition. Id. The trial court granted summary judgment in favor of the defendant, finding no evidence from which a reasonable jury could imply that the defendant had notice of the white substance. Id. at *1-2, 2023 U.S. App. LEXIS 19400, at *3. Reversing the trial court's grant of summary judgment, the Eleventh Circuit relied on several pieces of Wal-Mart's store footage for its holding that a reasonable jury could infer that the defendant had constructive notice of the white substance: the cart was parked close to the fall location; the cart sat adjecaent to the fall location for an hour and thirty minutes; after the cart was removed, eight minutes passed before the slip; during those eight minutes, the white substance appears in the exact spot that the plaintiff later stepped on when he slipped and where an employee of the defendant later cleaned up the spill. Id. at *2, 2023 U.S. App. LEXIS 19400, at *4.

Defendant argues that the video of the Wal-Mart store premises does not raise a genuine issue of material fact as to constructive notice. Defendant's argument fails. Like in Sutton and Gonzalez, Defendant produced CCTV footage of the area where Plaintiff Barbara slipped and fell, including one hour of video preceding Plaintiff's fall. [D.E. 25-3]. The isle of the Wal-Mart store where Plaintiff fell is showcased in the top-right corner of the video at the 5:38:17 PM timestamp. Id. For that one hour preceding Plaintiff's fall, no employee of Defendant can be seen walking through the area where Plaintiff Barbara slipped and fell nor inspecting the area. Id. Further, Defendant has not pointed to testimony or an affidavit from a store employee reflecting that such employee had inspected the area in the hour before Plaintiff Barbara's slip and fall. Although Defendant's CCTV footage “ ‘does not show the alleged condition, how it got on the floor, or when[,]’ ” see Sutton, 64 F.4th at 1172, a reasonable jury could imply from the absence of a clear moment when the hand sanitizer fell to the floor in the CCTV video that the hand sanitizer had been on the floor for more than one hour. See id.; [D.E. 25-3].

Defendant argues that the Court is restricted to consider only supported facts and must disregard Teddy Lass’ (i.e., Plaintiff's son) affidavit. An affidavit or declaration used to support or oppose a motion for summary judgment “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).

Specifically, Defendant asserts that Teddy's affidavit lacks personal knowledge. Defendant's argument fails. “Under the personal knowledge standard, an affidavit is inadmissible if ‘the witness could not have actually perceived or observed that which he testifies to.’ ” Iannuzzelli v. Lovett, No.08-23473-CIV-MORENO, 2009 WL 10667092, at *2, 2009 U.S. Dist. LEXIS 139235, at *3 (S.D. Fla. May 7, 2009) (quoting Coleman v. Blue Cross Blue Shield of Kan., 487 F. Supp. 2d 1225, 1237 (D. Kan. 2007)) (citing Argo v. Blue Cross Blue Shield, 452 F.3d 1193, 1200 (10th Cir. 2006)). Here, Teddy was present at the Wal-Mart store when he observed the hand sanitizer puddle and apparent footprints and shopping cart tread marks over the puddle. [D.E. 26-1]; see also [D.E. 25-1] (showing video taken by Teddy of the hand sanitizer puddle over which Plaintiff Barbara slipped and fell). Accordingly, Teddy's affidavit was made on personal knowledge.

Defendant also asserts that Teddy's affidavit is conclusory. Defendant does not cite to supporting legal authority, nor does it explain how the affidavit is conclusory. Accordingly, the Court refuses to address this assertion. See U.S. Steel Corp. v. Astrue, 495 F.3d 1272, 1287 n.13 (11th Cir. 2007) (refusing to address a “perfunctory and underdeveloped argument” with no citation to legal authority and collecting cases).

Alternatively, Defendant asserts that Teddy's affidavit is not supported by the facts of the case. As with Defendant's ‘conclusory affidavit’ contention, Defendant does not cite to supporting law, nor does it explain how the affidavit is specifically contradicted by the record. Thus, the Court will not address this assertion.

Last, Plaintiff argues that summary judgment should be denied because evidence that a dangerous condition failed to comply with industry safety standards, together with other evidence of notice, can be used to establish constructive notice.

“ ‘[E]vidence that an allegedly dangerous condition failed to comply with industry standards, together with other evidence of notice, can be used to establish constructive notice.’ ” Francis v. MSC Cruises, S.A., 546 F. Supp. 3d 1258, 1265 (S.D. Fla. 2021) (quoting Andersen v. Royal Caribbean Cruises, Ltd., 543 F.Supp.3d 1346 (S.D. Fla. 2021)) (citing Bunch v. Carnival Corp., 825 F. App'x 713, 715-16 (11th Cir. 2020)).

Defendant argues that Plaintiff's expert's “Surface Audit Report” does not reveal any issue of material fact on the issue of whether Defendant had constructive notice of the dangerous condition. Defendant's argument fails. Here, the report from Plaintiffs’ liability expert witness states that the floor where Plaintiff Barbara slipped and fell contravened various applicable industry standards. [D.E. 25-4 at 45-46]. This, together with the other evidence of notice (i.e., the photos and Plaintiff Barbara's testimony regarding the footprints and cart marks; Defendant's CCTV footage), may be used to establish constructive notice.

In conclusion, there is a genuine issue of material fact as to whether Defendant had constructive notice of the hand sanitizer puddle. Accordingly, summary judgment for Defendant is not appropriate.

CONCLUSION

THE COURT has considered the motion, the response in opposition, the reply pertinent portions of the record, and being otherwise fully advised in the premises, it is

ADJUDGED that the motion is DENIED.

DONE AND ORDERED in Chambers at Miami, Florida, this 9th of August 2023.

FEDERICO A. MORENO, UNITED STATES DISTRICT JUDGE