MANUEL VARGAS v. DOLPHIN MALL ASSOCIATES, LLC

• Court: District Court of Appeal of Florida
• Decided: December 22, 2021
• Docket: 20-1027
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed December 22, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-1027 Lower Tribunal No. 18-17039 ________________

Manuel Vargas, Appellant,

vs.

Dolphin Mall Associates, LLC, et al., Appellees.

An appeal from the Circuit Court for Miami-Dade County, Martin Zilber, Judge.

Steinger, Greene & Feiner P.A., and Ron Vinograd (Fort Lauderdale), for appellant.

Marcos Rothman Scharf Valdes Nguyen & Goldstein, P.L., and David M. Goldstein, and Katharine T. Healey (South Hollywood); Cooney Trybus Kwavnick Peets, and Warren B. Kwavnick (Fort Lauderdale), for appellees.

Before SCALES, MILLER, and LOBREE, JJ. MILLER, J.

Appellant, Manuel Vargas, challenges a final order granting summary

judgment in favor of appellees, Dolphin Mall Associates, LLC, and Federal

Cleaning Contractors, Inc., in his negligence lawsuit arising out of a slip and

fall. Considering the length of time the purportedly dangerous condition

existed before the accident occurred, in conjunction with “the size, nature,

and inherent risks of the area in question,” McCarthy v. Broward Coll., 164

So. 3d 78, 81 (Fla. 4th DCA 2015), we discern no error in the conclusion by

the lower tribunal that the evidence of record was insufficient to establish

appellees had sufficient “actual or constructive knowledge of [a] dangerous

condition” to take remedial action. § 768.0755(1), Fla. Stat. (2021); see

Dominguez v. Publix Super Mkts., Inc., 187 So. 3d 892, 894 (Fla. 3d DCA

2016) (“In transitory foreign substance cases, courts look to the length of

time the condition existed before the accident occurred.”); Gaidymowicz v.

Winn-Dixie Stores, Inc., 371 So. 2d 212, 214 (Fla. 3d DCA 1979) (concluding

that, with only one minute of actual notice and insufficient evidence of

constructive notice regarding the spill, the store did not have sufficient time

to correct the dangerous condition and therefore could not be liable); De Los

Angeles v. Winn-Dixie Stores, Inc., 326 So. 3d 811, 812 (Fla. 3d DCA 2021)

(affirming summary judgment finding the store did not have actual or

2 constructive notice of the dangerous condition where the customer had been

in an aisle alone for three to five minutes before slipping and an employee

had checked the aisle five minutes before the incident occurred); Walker v.

Winn-Dixie Stores, Inc., 160 So. 3d 909, 912 (Fla. 1st DCA 2014) (affirming

summary judgment in favor of the grocery store and noting that, at most, the

substance was on the floor no more than four minutes before the fall, which

was insufficient to satisfy the statute’s actual or constructive notice

requirement). Accordingly, we affirm the order under review.

Affirmed.