BRANDY T. OLIVER v. WINN-DIXIE STORE, INC.
291 So.3d 126
Fla. Dist. Ct. App.2020Background
- Plaintiff Brandy Oliver slipped and fell in a Winn‑Dixie store after stepping into a clear liquid surrounding a squished grape; she did not see the substance before falling and only noticed it after standing up.
- Oliver’s daughter and an unrelated customer who witnessed the fall did not see the substance on the floor prior to the accident.
- A Winn‑Dixie employee, trained to inspect for hazards, passed the incident area four times between 6:54 P.M. and 7:10 P.M. and executed an affidavit stating the floor was clean and dry each time; surveillance stills show the employee in the area but the full video is unclear.
- The fall occurred at 7:23 P.M.; the manager arrived about two minutes later and observed a squished grape, a small amount of clear liquid, and a single slip mark but no footprints or cart tracks through the liquid.
- Winn‑Dixie moved for summary judgment arguing there was no evidence of actual or constructive notice; the trial court granted summary judgment and the Fourth District affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constructive notice of transitory foreign substance | Oliver argued fact issue exists whether grape/liquid was on floor long enough to impute constructive knowledge to Winn‑Dixie | Winn‑Dixie argued no evidence the condition existed long enough or frequently enough to impute constructive notice; employee inspections showed floor was clean | Court held Winn‑Dixie met its summary judgment burden; no facts suggested the condition was present long enough to establish constructive notice, so summary judgment affirmed |
| Discovery continuance | Oliver argued she was entitled to additional discovery before summary judgment | Winn‑Dixie opposed delay and relied on affidavit evidence showing lack of notice | Court rejected Oliver’s argument and affirmed summary judgment without granting additional discovery |
Key Cases Cited
- Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000) (standard of review for summary judgment: de novo)
- Moore v. Morris, 475 So. 2d 666 (Fla. 1985) (summary judgment only when facts crystallized)
- Lago v. Costco Wholesale Corp., 233 So. 3d 1248 (Fla. 3d DCA 2017) (application of Fla. Stat. § 768.0755 to transitory substances)
- Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418 (Fla. 4th DCA 2014) (plaintiff must prove business had actual or constructive knowledge under § 768.0755)
- Delgado v. Laundromax, Inc., 65 So. 3d 1087 (Fla. 3d DCA 2011) (constructive notice may be inferred from time the substance was on the floor)
- Schaap v. Publix Supermarkets, Inc., 579 So. 2d 831 (Fla. 1st DCA 1991) (frequency or duration of condition can establish constructive notice)
- Cisneros v. Costco Wholesale Corp., 754 So. 2d 819 (Fla. 3d DCA 2000) (presence of cart tracks/wheel marks can support inference of duration)
- Capotosto v. Fifth Third Bank, 230 So. 3d 891 (Fla. 4th DCA 2017) (after defendant meets summary judgment burden, plaintiff must present counterevidence to create a genuine issue)