Daniel Valdes v. Verona at Deering Bay Condominium Association, Inc.

• Court: District Court of Appeal of Florida
• Decided: June 19, 2024
• Docket: 2023-0362
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed June 19, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-0362 Lower Tribunal No. 21-11128 ________________

Daniel Valdes, Appellant,

vs.

Verona at Deering Bay Condominium Association, Inc., et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Pedro P. Echarte, Jr., Judge.

Dohan Law Group, P.A., and Russell A. Dohan; Philip D. Parrish, P.A., and Philip D. Parrish, for appellant.

Cole, Scott & Kissane, P.A., and Lissette Gonzalez, for appellees.

Before LOGUE, C.J., and LOBREE and BOKOR, JJ.

BOKOR, J. Daniel Valdes appeals the trial court’s grant of summary judgment in

favor of Verona at Deering Bay Condominium Association, Inc., and First

Service Residential Florida, Inc., the condominium management company,

in a negligence action based on Valdes’ claimed injury resulting from a slip

and fall on a puddle of spilled liquid on the floor of the Verona’s storage

facilty. Because the record establishes the existence of a genuine issue of

material fact regarding constructive notice of the spill, we reverse.

On January 11, 2021, Valdes was assisting a friend who lived at the

Verona in returning Christmas decorations to the friend’s storage unit. In the

storage room, Valdes stepped on a puddle, slipped, and hit his knee on the

floor, right below a storage locker. Valdes claimed he saw a liquid coming

from inside of a storage locker, right above the puddle. Valdes admitted he

did not know how long the water was on the floor but testified that the puddle

appeared green, dirty, large, and dried up in certain areas. Valdes further

noted smudge marks and footprints on the floor near the puddle; however,

he acknowledged the footprints could have been his.

Verona and its management company moved for summary judgment,

arguing that Valdes failed to produce evidence of actual or constructive

notice of the puddle in the storage room, and that the mere presence of the

puddle doesn’t establish constructive notice. The trial court orally granted the

2 motion for summary judgment and subsequently entered final summary

judgment in favor of the Verona and its management company. This appeal

follows.

A premises owner (and in this case, its management agent) owes a

duty to a business invitee to exercise reasonable care and maintain the

premises in a safe condition. See Encarnacion v. Lifemark Hosps. of Fla.,

211 So. 3d 275, 277–78 (Fla. 3d DCA 2017) (setting forth elements of a

negligence claim and the duty owed to a business invitee). But where the

claim involves a slip and fall on a transitory substance, as here, “proof of the

breach element of the claim against an owner of the establishment is

statutorily constrained” by Florida’s transitory foreign substance statute. Id.

at 278. The transitory foreign substance statute provides that “[i]f 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. “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.” Delgado v. Laundromax, Inc., 65

So. 3d 1087, 1090 (Fla. 3d DCA 2011).

3 We resolve this appeal by examining the first constructive notice factor.

“In trying to assess how long a substance has been sitting on a floor, courts

look to several factors, including ‘evidence of footprints, prior track marks,

changes in consistency, [or] drying of the liquid.’” Welch v. CHLN, Inc., 357

So. 3d 1277, 1278–79 (Fla. 5th DCA 2023) (quoting Torres v. Wal-Mart

Stores E., L.P., 555 F. Supp. 3d 1276, 1283 (S.D. Fla. 2021)); see also

Sutton v. Wal-Mart Stores E., LP, 64 F. 4th 1166, 1170 (11th Cir. 2023)

(“Time and again, 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 other evidence such as footprints, prior

track marks, changes in consistency, or drying of the liquid.”) (cleaned up).1

We agree with Verona and its management that “the mere presence of

water on the floor is not enough to establish constructive notice.” Delgado,

65 So. 3d at 1090. But we have more than just a puddle in the storage room.

Rather, Valdes testified as to the existence of footprints and smudge marks

1 The initial brief refers to Sutton as “the only published – and therefore binding – Eleventh Circuit decision addressing Florida Statute §768.0755.” But federal decisions don’t bind state courts on matters of state law and are only as persuasive as their reasoning merits. See Kelly v. Duggan, 282 So. 3d 969, 972 (Fla. 1st DCA 2019) (“Although not binding, federal court decisions are given great weight when construing the [Florida Consumer Collection Practices Act].”). And on a federal law matter, “[e]ven though lower federal court rulings may be in some instances persuasive, such rulings are not binding on state courts.” State v. Dwyer, 332 So. 2d 333, 335 (Fla. 1976).

4 right beside the puddle,2 as well as the dried condition of the puddle

indicating age, and the size of the puddle (also indicating age based on

Valdes’ testimony regarding the nature and source of the spill, i.e., the liquid

dripping slowly from the above storage locker). “Florida courts have found

that a plaintiff's testimony alone can be sufficient to defeat a summary

judgment motion” if said testimony is “accompanied by a ‘plus,’ namely some

additional fact or facts from which a jury can reasonably conclude that the

substance was on the floor long enough to establish constructive

knowledge.” Carpio v. W. Beef of Fla., LLC, 49 Fla. L. Weekly D86, at *2

(Fla. 4th DCA Jan. 3, 2024) (quotation omitted); see, e.g., Norman v. DCI

Biologicals Dunedin, LLC, 301 So. 3d 425, 429–31 (Fla. 2d DCA 2020)

(finding plaintiff's testimony that he slipped in dirty water containing muddy

footprints and a separately located skid mark, among other things, sufficient

to satisfy the “plus” factor).

We conclude that Valdes’ testimony along with other record evidence,

such as the fact there were daily security and custodial visits to the storage

room by Verona’s security and custodial service, respectively, give rise to

Verona and its management company’s constructive notice, precluding

2 Even if we properly discount the footprints and smudges because Valdes couldn’t be sure they weren’t his, Valdes provided other relevant additional factors.

5 summary judgment. See, e.g., Williams v. Ryta Food Corp., 301 So. 3d 339,

341–42 (Fla. 3d DCA 2020) (determining the plaintiff’s description of a

puddle as “very long” and allegation of track marks or footprints, along with

other record evidence, “established that the pool of water accumulated as

the result of a slow and steady drip originating from the cooler” and presented

a factual issue as to constructive notice). We therefore reverse the final

judgment entered by the trial court and remand for further proceedings.

Reversed and remanded.