Walker v. Winn-Dixie Stores, Inc.

160 So. 3d 909, 2014 WL 4086798, 2014 Fla. App. LEXIS 12736
CourtDistrict Court of Appeal of Florida
DecidedAugust 20, 2014
DocketNo. 1D13-3781
StatusPublished
Cited by24 cases

This text of 160 So. 3d 909 (Walker v. Winn-Dixie Stores, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walker v. Winn-Dixie Stores, Inc., 160 So. 3d 909, 2014 WL 4086798, 2014 Fla. App. LEXIS 12736 (Fla. Ct. App. 2014).

Opinion

THOMAS, J.

This is an appeal of the trial court’s entry of final summary judgment in favor of Appellee Winn-Dixie in a “slip-and-fall” negligence action. For the reasons explained below, we affirm.

Facts

Appellant’s complaint alleged, in pertinent part, that Winn-Dixie negligently maintained the floor of its premises by permitting a dangerous condition (a wet floor) to exist, and that this dangerous condition “existed for a sufficient length of [910]*910time” so that Winn-Dixie knew or should have known about it and corrected it. Appellant alleged that Winn-Dixie’s failure to do so resulted in her slipping and falling, causing injury and attendant damages. Winn-Dixie denied any negligence.

Viewing the evidence in the light most favorable to Appellant, she accompanied a disabled companion for whom she was providing care to the Winn-Dixie store to assist him with his shopping. When they arrived at the store it was “[bjright and sunny,” and there had been no rain that morning. Appellant went into the store to retrieve an electric cart for her companion, and the two entered the store, spending approximately 30 minutes shopping.

When Appellant and her companion left the store and returned to their vehicle, the weather, as Appellant described it, was “steamy,” although it did not appear as if it had sprinkled or rained. They were outside the store for five or ten minutes before Appellant went to return the electric cart. She explained that she “got as far as the handicapped poles, and it started misting.” Appellant testified that it was a very light, “misting” rain. Appellant testified that less than one minute elapsed between the time she started riding the cart back to the store and her arrival inside the front entrance area. Appellant parked the cart, got off, and started walking toward the door but slipped and fell when she was less than a foot away from the cart. Appellant testified that she saw no water or other liquid substance before she fell. She could not say whether she saw any such substance on the floor after she fell, although she claimed she saw “wet tracks” from the wheels of the cart. When asked if she saw any water tracks, Appellant responded: “I just know that my shoes got damp from the floorboard of the electric cart” while bringing the cart back to the store. Appellant described the condition that allegedly caused her fall as “just drops of water” that were “unnoticeable”; thus, she did not see the substance before her fall. Furthermore, she was not sure how long the water was there.

The store manager, Mr. Williams, observed a video taken by a store surveillance camera that showed two of his assistants inspecting the area where Appellant fell two to three minutes before the incident happened. When asked if it rained on the day in question, Williams responded that he believed it did, but “I don’t know if it just stopped or just started.” The video did not show the area outside the store, but did show the incident. When asked why he believed it rained, Williams responded: “Because in the video, it shows that we had an umbrella rack up,” which are “plastic bags where your umbrella gets into, and that’s to keep them from dripping.” These are put out “[bjefore a rain or during a rain.”

Pursuant to Winn-Dixie’s rainy-day policy, Williams explained, “Right before a rain or after, we put a mat down on the entrance door, two cones, and the umbrella rack.” He confirmed that he did not see the mats in place in the video footage from the time of the incident. When asked why the mats were not down, Williams answered, “I’d be just guessing. I don’t know if it had stopped raining, if it hadn’t rained yet and they were in the process of doing it.” As for if he knew why the umbrella rack was there, Williams replied, “I would be just guessing, but I would assume it had just rained or was about to rain.” Williams testified that there were no safety cones in place according to the video. He could not recall if any previous falls had occurred in the area Appellant fell, and he did not know what caused Appellant to fall.

[911]*911Based on this evidence, Winn-Dixie filed a motion for final summary judgment, arguing that the recently-enacted section 768.0755, Florida Statutes, requires “proof of actual or constructive knowledge of the presence of a transitory foreign substance,” which can be proven by “showing that 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 ...Applying this statute to the evidence, Winn-Dixie argued that, viewing all facts in Appellant’s favor, there was no evidence that Winn-Dixie had actual or constructive knowledge of water on the floor before Appellant’s fall and that, although Appellant “presented conflicting testimony concerning the potential sources of the ‘unnoticeable’ drops of water on the floor where she fell, [this] testimony is based on speculation and assumptions.”

At the summary judgment hearing, Appellant conceded that she was proceeding under a constructive, not actual, knowledge theory of negligence, and relied on her view of Williams’ testimony that Winn-Dixie had initiated, but did not finish, its rainy-day procedure. Appellant argued that Winn-Dixie should have either installed the warning cones or rainy-weather mats in the affected area.

In granting Winn-Dixie’s motion and entering final summary judgment, the court found:

In 2010, the Florida legislature enacted Section 768.0755, Florida Statutes, the clear intent of which is to re-position the burden of proof in constructive knowledge negligence actions fully onto a plaintiff. Although this action arose before the enactment of Section 768.0755, it has now been held that the statute has retroactive application. Kenz v. Miami-Dade County, [116 So.3d 461] (Fla. 3rd DCA 2013). Clearly, therefore, the burden to demonstrate constructive knowledge of the alleged dangerous condition herein lies with the plaintiff.[1]
In the case at bar, there is competent, substantial, detailed testimony confirming that it began to rain or mist less than one minute before the plaintiffs fall. The plaintiffs only evidence to the contrary is the speculative, vague testimony of the store director that it might have been raining before the plaintiffs fall, but it was equally possible that it had not yet rained. There is no other evidence in the record to support a contention that WD had constructive knowledge of the “un-noticeable” drops of water on the floor.

The court found that the store manager’s testimony was insufficient to meet Appellant’s burden under section 768.0755, and that it “believe[d] that if that statute is to have any meaning, and if the clear legislative intent is to be given any effect, the record facts in this case must defeat the plaintiffs claim.” The court denied Appellant’s motion for rehearing, and this appeal followed.

Analysis

Final summary judgments are reviewed de novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment is proper “if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and [912]*912that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). On reviewing a summary judgment order, an appellate court must “view the facts in a light most favorable to the nonmoving party ....

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Cite This Page — Counsel Stack

Bluebook (online)
160 So. 3d 909, 2014 WL 4086798, 2014 Fla. App. LEXIS 12736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-winn-dixie-stores-inc-fladistctapp-2014.