357 So.3d 1277
Fla. Dist. Ct. App.2023Background
- On December 23, 2017, Welch slipped and fell at CHLN’s restaurant near the salad bar after stepping in a sizeable puddle of liquid.
- Welch testified the liquid was large, "dirty," "murky," and "slimy," and that she observed footprints in the puddle going in different directions that were not hers.
- CHLN’s general manager testified that on busy nights the salad bar had at least two employees, with one stationed behind the salad bar at all times; employees were responsible for keeping the floor clean.
- CHLN moved for summary judgment, arguing Welch could not show actual or constructive knowledge of the hazardous condition.
- The trial court granted summary judgment; Welch appealed. The Fifth District reversed, finding a genuine dispute of material fact about constructive knowledge based on the footprints, the liquid’s condition and quantity, and employee proximity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constructive knowledge under §768.0755(1)(a) (whether business should have known the floor was hazardous) | Welch: the large, dirty, slimy puddle with multiple footprints showed the substance had been on the floor long enough that CHLN should have discovered and remedied it. | CHLN: no evidence of actual knowledge; the circumstantial evidence (dirty liquid) is insufficient to show the condition existed long enough for constructive notice. | Reversed summary judgment—a reasonable jury could infer constructive knowledge from the quantity/condition of the liquid, the tracked footprints, and employee presence. |
| Whether testimony that a liquid was "dirty/murky" alone creates a jury issue | Welch: combined with footprints and quantity, testimony supports a jury finding. | CHLN: dirty/murky appearance by itself is insufficient because some substances are dirty when spilled. | Court agreed dirty appearance alone is often insufficient, but here the footprints and employee proximity supply the necessary "plus" to create a factual dispute. |
Key Cases Cited
- Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000) (summary judgment standard; de novo review and view evidence for nonmoving party)
- Peoples Gas Sys. v. Posen Constr., Inc., 322 So. 3d 604 (Fla. 2021) (restating negligence elements)
- Encarnacion v. Lifemark Hosps. of Fla., 211 So. 3d 275 (Fla. 3d DCA 2017) (under §768.0755, dirty appearance must be accompanied by a "plus" to raise a jury question)
- Palavicini v. Wal-Mart Stores E., L.P., [citation="787 F. App'x 1007"] (11th Cir. 2019) (dirty liquid testimony alone insufficient without footprints/track marks)
- Norman v. DCI Biologicals Dunedin, LLC, 301 So. 3d 425 (Fla. 2d DCA 2020) (footprints in a puddle can support reversal of summary judgment)
- Winn-Dixie Stores, Inc. v. Guenther, 395 So. 2d 244 (Fla. 3d DCA 1981) (dirty, scuffed liquid with tracks can impute constructive notice to store management)
- Lebron v. Royal Caribbean Cruises Ltd., [citation="818 F. App'x 918"] (11th Cir. 2020) (employee specifically tasked with monitoring area supports inference of constructive notice)
- Castellanos v. Target Corp., [citation="568 F. App'x 886"] (11th Cir. 2014) (tracks in a puddle near employees can support denial of directed verdict)