This case is an appeal of a final summary judgment in favor of the defendant, Laundromax, Inc. (“Laundromax”). The plaintiff, Justa Patricia Delgado (“Delgado”), sued Laundromax for negligence, and
On August 21, 2003, upon walking through the doorway of the defendant’s premises, Delgado slipped on a clear liquid, “which appeared to be water that had been left on the floor,” fell, and hit her head against the door knob. Delgado was treated at the hospital for her injuries and received follow-up treatment from a local clinic. She contends the injuries are permanent or continuing in nature.
Delgado alleges Laundromax breached its duty to her as its business invitee by negligently allowing the floor to remain wet. Specifically, Delgado contends Laun-dromax “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 contends 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. Laun-dromax also asserts 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.
Standard of Review
Our standard in reviewing the trial court’s summary judgment order is de novo. See Bldg. Educ. Corp. v. Ocean Bank,
Although negligence cases are not ordinarily subject to disposal on summary judgment, there is no rule under Florida law exempting negligence cases from disposition by summary judgment. See, e.g., Farrey v. Bettendorf,
A summary judgment motion triggers evidentiary burdens on both the moving and opposing party. The moving party, Laundromax, “has the initial burden of demonstrating the nonexistence of any genuine issue of material fact,” and once Laudromax provides competent evidence to make that showing, Delgado “must come forward with counterevidence sufficient to reveal a genuine issue.” Valderrama v. Portfolio Recovery Assocs., LLC,
The Substantive Law Governing Delgado’s Claim
Since our standard of review is de novo, the survival of Laundromax’s summary judgment on appeal turns on whether Laundromax has demonstrated that, based on undisputed evidence, Delgado cannot prevail as a matter of law on her negligence cause of action. The elements of negligence are: (1) a duty to the plaintiff; (2) the defendant’s breach of that duty; (3) injury to the plaintiff arising from the defendant’s breach; and (4) damage caused by the injury to the plaintiff as a result of the defendant’s breach of duty. Westchester Exxon v. Valdes,
Under Florida law, a business owner owes two duties to a business invitee such as Delgado: (1) to take ordinary and reasonable care to keep its premises reasonably safe for invitees; and (2) to warn of perils that were known or should have been known to the owner and of which the invitee could not discover. Valdes,
Burden of Proof
In 2001, the Florida Supreme Court in Owens v. Publix Supermarkets, Inc.,
Delgado failed to produce any evidence that Laundromax had actual or constructive notice of the water on the floor. Constructive notice may be inferred from either: (1) the amount of time a substance has been on the floor; or (2) the fact that the condition occurred with such frequency that the owner should have known of its existence. Schaap v. Publix Supermarkets, Inc.,
Delgado testified that she “walked like three steps” into Laudromax’s facility, and then “slid completely all the way back ... struck the doorknob ... [and] fell onto the floor.” Although Delgado initially testified that she did not see the substance she slipped on, she stated the substance “looked like water,” and, upon further consideration, concluded “it was water ... because it was ... transparent-like.” 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. Thus, the only evidence Delgado offered was that: (1) that the floor was wet; and (2) she slipped and fell. Consequently, the only permissible inference was that there was water on the floor, and Delgado slipped on it.
We therefore agree with the trial court that the evidence in the record shows, to the exclusion of all permissible inferences, that Laundromax was not negligent. There is no evidence that Laundromax had actual notice of the liquid on the floor before Delgado fell. Therefore, Delgado was required to present some evidence Laundromax had constructive notice of the hazard. Because the mere presence of water on the floor is not enough to establish constructive notice, see Broz v. Winn-Dixie Stores, Inc.,
There were, however, no additional facts presented that would support constructive notice. In fact, all the facts regarding the spill suggest that it was not on the floor for a long period of time prior to Delgado’s slip and fall. Cf. Cisneros v. Costco Wholesale Corp.,
Negligent Mode of Operation
We also reject Delgado’s argument that the statute allows her claim to survive summary judgment based upon a theory of negligent mode of operation. Although under section 768.0710(2)(b) that theory is available to a plaintiff seeking to prove negligence, Delgado did not advance that
This case has been pending since 2006, and Delgado did not direct the trial court to any evidence regarding negligent operation, and did not properly request the trial court postpone ruling on summary judgment to allow for discovery of evidence of a negligent mode of operation. See Fla. R. Civ. P. 1.510(f) (providing that “if it appears from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify opposition, the court may refuse the application for judgment or may order a continuance to permit ... discovery to be had”); Carbonell,
Moreover, Delgado testified that the facility was “always clean,” which forecloses a theory of negligent operation. The only permissible inference from that testimony is that Laundromax reasonably operated its facility with regard to the alleged hazard of dirt, debris, and water that caused Delgado to fall. For her cause of action to survive a motion summary judgment, Delgado must point to evidence, not allegations, but she has not provided any evidence that Laundromax employed a negligent mode of operating its laundromat that led to her alleged injury. See Carbo-nell,
Conclusion
Laundromax has shown that under the applicable law it did not have either actual or constructive notice of the spill, and Delgado failed to present any evidence that Landromax employed a negligent mode of operation that led to her injury. Consequently, there are no facts upon which a jury could conclude that Laundromax acted negligently by failing to exercise reasonable care in the maintenance, inspection, or repair of its business premises. Accordingly, we conclude that the trial court correctly found that Laundromax was entitled to judgment as a matter of law.
Affirmed.
Notes
. The statute has since been repealed and replaced by section 768.0755 (2010), which defines how a breach of duty is proven by requiring proof of actual or constructive knowledge by providing that:
(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.