Case: 17-15083 Date Filed: 05/16/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-15083 Non-Argument Calendar ________________________
D.C. Docket No. 9:17-cv-80360-DMM
THERESA PUSSINEN,
Plaintiff - Appellant,
versus
TARGET CORPORATION, a foreign corporation,
Defendant - Appellee.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(May 16, 2018)
Before WILLIAM PRYOR, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 17-15083 Date Filed: 05/16/2018 Page: 2 of 8
Theresa Pussinen appeals the district court’s grant of summary judgment in
favor of Target Corporation on her negligence claim under Florida state law.
Pussinen sustained personal injuries when she slipped and fell on a liquid
substance while shopping at one of Target’s stores. After her lawsuit was removed
to federal court based on diversity jurisdiction, the district court granted summary
judgment to Target. On appeal, Pussinen challenges the court’s ruling that she
failed to present the required evidence that Target had constructive knowledge of
the slippery substance on the floor. After careful review, we agree with the district
court and therefore affirm.
I
We review de novo the district court’s grant of summary judgment,
construing the evidence and drawing all reasonable inferences in favor of Pussinen,
the non-moving party. Carlson v. FedEx Ground Package Sys., Inc., 787 F.3d
1313, 1317 (11th Cir. 2015). Summary judgment is appropriate if “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).
Pussinen’s negligence claim arises under Florida law, which is the
substantive law that we apply in this diversity case. Carlson, 787 F.3d at 1326. In
Florida, a person who “slips and falls on a transitory foreign substance in a
business establishment … must prove that the business establishment had actual or
2 Case: 17-15083 Date Filed: 05/16/2018 Page: 3 of 8
constructive knowledge of the dangerous condition and should have taken action to
remedy it.” Fla. Stat. § 768.0755(1).
Pussinen does not claim—and the evidence does not show—that Target had
actual knowledge of the liquid substance on which she slipped. Thus, to prove her
claim, Pussinen needed to prove that Target had constructive knowledge. Under
Section 768.0755, “[c]onstructive 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.” Id. § 768.0755(1)(a)–(b). Pussinen relies on both prongs.
A
The first question is whether circumstantial evidence “give[s] rise to an
inference that the foreign substance had been on the floor for a sufficient length of
time to charge the store owner with constructive knowledge of its presence.”
Montgomery v. Fla. Jitney Jungle Stores, Inc., 281 So. 2d 302, 306 (Fla. 1973).
Circumstantial evidence of the passage of time may include “dirt, scuffing, or
tracks in a substance.” Woods v. Winn Dixie Stores, Inc., 621 So. 2d 710, 711 (Fla.
Dist. Ct. App. 1993). “[T]he mere presence of [a substance] on the floor is not
enough to establish constructive notice.” Delgado v. Laundromax, Inc., 65 So. 3d
1087, 1090 (Fla. Dist. Ct. App. 2011).
3 Case: 17-15083 Date Filed: 05/16/2018 Page: 4 of 8
In the light most favorable to Pussinen, the evidence showed that on
December 19, 2014, she slipped and fell on a liquid substance that was on the floor
of a main aisle near the toy department in a Super Target store. She did not see the
substance before slipping in it, and she concedes that the liquid was clear and had
no track or dirt marks in it. Joshua Stevens, an employee working nearby, heard
Pussinen fall and came to help. He later testified that Target is usually busy during
the holidays and that the store was “short-staffed” that night. He further testified
that he had not walked the aisle where Pussinen fell for at least 15 minutes before
her fall.
Those facts are not disputed, but the parties disagree about what permissible
inferences may be drawn from them. Although Florida law provides the
substantive rule of decision in this diversity case, we must decide the propriety of
summary judgment “in accordance with the federal standards fixed in Rule 56[]”
of the Federal Rules of Civil Procedure. Lighting Fixture & Elec. Supply Co. v.
Cont’l Ins. Co., 420 F.2d 1211, 1213 (5th Cir. 1969).1 An inference must be
“reasonable” to defeat a motion for summary judgment. Daniels v. Twin Oaks
Nursing Home, 692 F.2d 1321, 1326 (11th Cir. 1982). A reasonable inference is
one that a “reasonable and fair-minded [person] in the exercise of impartial
judgment might draw from the evidence.” Id. (internal quotation marks omitted).
1 This Court adopted as binding precedent all Fifth Circuit decisions handed down before October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). 4 Case: 17-15083 Date Filed: 05/16/2018 Page: 5 of 8
Reasonable inferences may rest in part on conjecture, “for an inference by
definition is at least partially conjectural.” Id. But a jury cannot be “allowed to
engage in a degree of speculation and conjecture that renders its finding a guess or
mere possibility.” Id. “Such an inference is infirm because it is not based on the
evidence.” Id.
Pussinen cites the following “circumstantial evidence,” which she argues
permits the inference that the liquid was on the floor for such a length of time that
Target had constructive knowledge of its existence: (1) that the Super Target store
contained a grocery section and café section that sold beverages for consumption
in the store; (2) that the fall happened in the “toy department during the holiday
season where children of all ages frequent with drinks and/or bottles”; (3) that the
store was “short-staffed” that night; (4) that there was no video surveillance of the
area of the fall; (5) that the “Leader on Duty” at the store that night “had no idea
when someone had last walked that area”; (6) that Stevens testified that he had not
walked by the area where Pussinen fell in the 15 minutes before the fall; and (7)
that it was “uncertain whether there were markings in the water as Ms. Pussinen’s
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Case: 17-15083 Date Filed: 05/16/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-15083 Non-Argument Calendar ________________________
D.C. Docket No. 9:17-cv-80360-DMM
THERESA PUSSINEN,
Plaintiff - Appellant,
versus
TARGET CORPORATION, a foreign corporation,
Defendant - Appellee.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(May 16, 2018)
Before WILLIAM PRYOR, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 17-15083 Date Filed: 05/16/2018 Page: 2 of 8
Theresa Pussinen appeals the district court’s grant of summary judgment in
favor of Target Corporation on her negligence claim under Florida state law.
Pussinen sustained personal injuries when she slipped and fell on a liquid
substance while shopping at one of Target’s stores. After her lawsuit was removed
to federal court based on diversity jurisdiction, the district court granted summary
judgment to Target. On appeal, Pussinen challenges the court’s ruling that she
failed to present the required evidence that Target had constructive knowledge of
the slippery substance on the floor. After careful review, we agree with the district
court and therefore affirm.
I
We review de novo the district court’s grant of summary judgment,
construing the evidence and drawing all reasonable inferences in favor of Pussinen,
the non-moving party. Carlson v. FedEx Ground Package Sys., Inc., 787 F.3d
1313, 1317 (11th Cir. 2015). Summary judgment is appropriate if “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).
Pussinen’s negligence claim arises under Florida law, which is the
substantive law that we apply in this diversity case. Carlson, 787 F.3d at 1326. In
Florida, a person who “slips and falls on a transitory foreign substance in a
business establishment … must prove that the business establishment had actual or
2 Case: 17-15083 Date Filed: 05/16/2018 Page: 3 of 8
constructive knowledge of the dangerous condition and should have taken action to
remedy it.” Fla. Stat. § 768.0755(1).
Pussinen does not claim—and the evidence does not show—that Target had
actual knowledge of the liquid substance on which she slipped. Thus, to prove her
claim, Pussinen needed to prove that Target had constructive knowledge. Under
Section 768.0755, “[c]onstructive 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.” Id. § 768.0755(1)(a)–(b). Pussinen relies on both prongs.
A
The first question is whether circumstantial evidence “give[s] rise to an
inference that the foreign substance had been on the floor for a sufficient length of
time to charge the store owner with constructive knowledge of its presence.”
Montgomery v. Fla. Jitney Jungle Stores, Inc., 281 So. 2d 302, 306 (Fla. 1973).
Circumstantial evidence of the passage of time may include “dirt, scuffing, or
tracks in a substance.” Woods v. Winn Dixie Stores, Inc., 621 So. 2d 710, 711 (Fla.
Dist. Ct. App. 1993). “[T]he mere presence of [a substance] on the floor is not
enough to establish constructive notice.” Delgado v. Laundromax, Inc., 65 So. 3d
1087, 1090 (Fla. Dist. Ct. App. 2011).
3 Case: 17-15083 Date Filed: 05/16/2018 Page: 4 of 8
In the light most favorable to Pussinen, the evidence showed that on
December 19, 2014, she slipped and fell on a liquid substance that was on the floor
of a main aisle near the toy department in a Super Target store. She did not see the
substance before slipping in it, and she concedes that the liquid was clear and had
no track or dirt marks in it. Joshua Stevens, an employee working nearby, heard
Pussinen fall and came to help. He later testified that Target is usually busy during
the holidays and that the store was “short-staffed” that night. He further testified
that he had not walked the aisle where Pussinen fell for at least 15 minutes before
her fall.
Those facts are not disputed, but the parties disagree about what permissible
inferences may be drawn from them. Although Florida law provides the
substantive rule of decision in this diversity case, we must decide the propriety of
summary judgment “in accordance with the federal standards fixed in Rule 56[]”
of the Federal Rules of Civil Procedure. Lighting Fixture & Elec. Supply Co. v.
Cont’l Ins. Co., 420 F.2d 1211, 1213 (5th Cir. 1969).1 An inference must be
“reasonable” to defeat a motion for summary judgment. Daniels v. Twin Oaks
Nursing Home, 692 F.2d 1321, 1326 (11th Cir. 1982). A reasonable inference is
one that a “reasonable and fair-minded [person] in the exercise of impartial
judgment might draw from the evidence.” Id. (internal quotation marks omitted).
1 This Court adopted as binding precedent all Fifth Circuit decisions handed down before October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). 4 Case: 17-15083 Date Filed: 05/16/2018 Page: 5 of 8
Reasonable inferences may rest in part on conjecture, “for an inference by
definition is at least partially conjectural.” Id. But a jury cannot be “allowed to
engage in a degree of speculation and conjecture that renders its finding a guess or
mere possibility.” Id. “Such an inference is infirm because it is not based on the
evidence.” Id.
Pussinen cites the following “circumstantial evidence,” which she argues
permits the inference that the liquid was on the floor for such a length of time that
Target had constructive knowledge of its existence: (1) that the Super Target store
contained a grocery section and café section that sold beverages for consumption
in the store; (2) that the fall happened in the “toy department during the holiday
season where children of all ages frequent with drinks and/or bottles”; (3) that the
store was “short-staffed” that night; (4) that there was no video surveillance of the
area of the fall; (5) that the “Leader on Duty” at the store that night “had no idea
when someone had last walked that area”; (6) that Stevens testified that he had not
walked by the area where Pussinen fell in the 15 minutes before the fall; and (7)
that it was “uncertain whether there were markings in the water as Ms. Pussinen’s
clothing soaked up most of the water.” Br. of Appellant at 21.
We conclude that Pussinen’s evidence is not enough for a reasonable jury to
infer that the clear liquid substance “had been on the floor for a sufficient length of
time to charge the store owner with constructive knowledge of its presence.”
5 Case: 17-15083 Date Filed: 05/16/2018 Page: 6 of 8
Montgomery, 281 So. 2d at 306. Pussinen concedes that she “does not know how
long the water [was] on the floor before she fell.” Br. of Appellant at 21. The only
evidence she has presented regarding timing is the testimony of one employee—
Stevens—who testified that the last time he walked through the area where
Pussinen fell was “more than fifteen minutes” before the fall.
But a jury could not reasonably infer that the liquid was on the floor for
more than fifteen minutes based solely on Stevens’ testimony. Pussinen does not
contend that Stevens was the only employee working in the store that night, or
even that he was the only employee working in that area of the store. Thus, that
Stevens didn’t walk by the area of the fall in the 15 minutes before the incident
doesn’t mean that another employee didn’t. It therefore would be pure speculation
for a jury to conclude, based solely on Stevens’ testimony, that no Target employee
had inspected the area for more than 15 minutes, or that the liquid was on the floor
for more than fifteen minutes before Pussinen’s fall. Cf. Miller v. Big C Trading,
Inc., 641 So. 2d 911, 912 (Fla. Dist. Ct. App. 1994) (“[T]he fact [that] there was no
inspection for a given length of time in [and of] itself provides no proof that the
[hazard] was actually there for a sufficient period to place a landowner on
reasonable notice of its existence.”) (citation omitted).
Moreover, as the district court noted, “[e]veryone, including [Pussinen]
testified that the liquid was clear and had no track or dirt marks in it.”
6 Case: 17-15083 Date Filed: 05/16/2018 Page: 7 of 8
Accordingly, there were no signs of age that could support the inference that the
liquid had been on the floor for such a length of time that Target should have
known about it. In sum, the record lacks any evidence from which a reasonable
jury could conclude that the liquid had been on the floor for a period long enough
to charge Target with constructive knowledge.
B
The second question is whether circumstantial evidence gives rise to the
inference that the “condition occurred with regularity and was therefore
foreseeable.” Fla. Stat. § 768.0755(1)(b). Pussinen asserts, conclusorily, that it
was “foreseeable that substances or items would appear on the floor in the
particular area where [she] fell” for three reasons: (1) “Target knew that liquids,
items, or substances would be found on the floor of the toy department during the
holiday season”; (2) “a substance on the floor adjacent to toy department shelving,
is undoubtedly a regular occurrence when the toy department is frequented by
children of all ages, strollers, etc., during the holiday season”; and (3) “this was a
Super Target which contained a grocery department as well as a café with
beverages to purchase before or after shopping.” Br. of Appellant at 25. But that
string of assumptions does not satisfy Pussinen’s burden to present evidence that
the condition leading to her fall “occurred with regularity.” We therefore agree
7 Case: 17-15083 Date Filed: 05/16/2018 Page: 8 of 8
with the district court that Pussinen has not met her burden of proving constructive
notice based on a regularly occurring condition.
II
For the reasons stated above, we affirm the district court’s grant of summary
judgment in favor of Target.
AFFIRMED.