326 So.3d 811
Fla. Dist. Ct. App.2021Background
- Plaintiff slipped and was injured on a liquid laundry-detergent substance while walking an aisle at a Winn‑Dixie store and sued for negligence.
- In deposition, plaintiff described the liquid as clear/light blue, not dirty, no footprints in it, and estimated it had been on the floor at least 3–5 minutes because she was alone in the aisle that long; she had no evidence employees knew of it.
- An open detergent bottle was found on a nearby shelf with its cap next to it; the bottle was upright and not leaking.
- Winn‑Dixie’s store manager testified an employee had inspected that aisle five minutes before the fall.
- The trial court entered summary judgment for Winn‑Dixie; the appellate court applied Fla. Stat. § 768.0755 (transitory foreign substance standard) and concluded the undisputed facts did not show actual or constructive notice (no proof of sufficient duration or foreseeability).
- Plaintiff also argued the summary judgment was premature because discovery was ongoing (seeking a witness deposition and more surveillance video); the court held plaintiff failed to seek a written continuance or submit an affidavit showing needed discovery and had the witness name earlier, so no abuse of discretion occurred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Winn‑Dixie had actual or constructive knowledge of the transitory substance under § 768.0755 | De Los Angeles argued the substance was on the floor at least 3–5 minutes and an open bottle was nearby, creating a triable issue | Winn‑Dixie argued there was no evidence of how long the substance was present or employee awareness; an employee checked the aisle 5 minutes earlier and the bottle was not leaking | Affirmed summary judgment: undisputed facts insufficient to impute actual or constructive notice under § 768.0755 |
| Whether the trial court abused its discretion by granting summary judgment while discovery remained pending | De Los Angeles argued additional deposition and surveillance video were necessary and discovery was incomplete | Winn‑Dixie argued plaintiff failed to file a written motion for continuance or affidavit under the rules and had been provided the witness name long before the hearing | Affirmed: no abuse of discretion—plaintiff showed no diligence or affidavit justifying continuance |
Key Cases Cited
- Morales v. Ross Dress for Less, Inc., 306 So. 3d 335 (Fla. 3d DCA 2020) (affirming summary judgment where record lacked evidence of duration or foreseeability of transitory substance)
- Encarnacion v. Lifemark Hosps. of Fla., 211 So. 3d 275 (Fla. 3d DCA 2017) (applying § 768.0755 to transitory-substance slip‑and‑fall claims)
- Oliver v. Winn‑Dixie Stores, Inc., 291 So. 3d 126 (Fla. 4th DCA 2020) (discussing burden shift and necessity for plaintiff to produce counterevidence to defeat summary judgment)
- Walker v. Winn‑Dixie Stores, Inc., 160 So. 3d 909 (Fla. 1st DCA 2014) (holding a short interval under four minutes was insufficient to impute constructive notice)
- Carbonell v. Bellsouth Telecomms., Inc., 675 So. 2d 705 (Fla. 3d DCA 1996) (addressing continuance and summary judgment practice)
- Vancelette v. Boulan S. Beach Condo. Ass'n, Inc., 229 So. 3d 398 (Fla. 3d DCA 2017) (requiring demonstration of diligence and materiality to justify continuance when discovery is pending)
- Leal v. Benitez, 275 So. 3d 774 (Fla. 3d DCA 2019) (noting appellate review of trial court continuance decisions requires showing gross or flagrant abuse of discretion)