The era of constructive notice

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 26

JUNE 28, 2024

RECORD SUFFICIENT TO ESTABLISH THE EXISTENCE OF GENUINE ISSUE OF MATERIAL FACT ON CONSTRUCTIVE NOTICE OF LIQUID ON FLOOR — EXISTENCE OF FOOTPRINTS AND SMUDGE MARKS AND OTHER EVIDENCE CREATED FACTUAL DISPUTE ON CONSTRUCTIVE NOTICE

Valdesv. Verona at Deering Bay Condominium Association, Inc., 49 Fla. L. Weekly D1325 (Fla. 3d DCA June 19, 2024):

The plaintiff was helping his friend return Christmas decorations to the friend’s storage room in his condo. There, the plaintiff stepped on a puddle, and hit his knee on the floor right below a storage locker. He testified that he saw liquid coming from inside a storage locker, right above the puddle. He 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. Plaintiff further noted there were smudge marks and footprints on the floor near the puddle (footprints which he admitted could have been his).

The condo and its management company defendants moved for summary judgment. They argued that a puddle itself is not evidence of constructive notice, and that plaintiff failed to produce the requisite evidence of actual or constructive notice. The trial court granted summary judgment.

Where a claim involves a slip and fall on a transitory substance, proof of the breach element of the claim against an owner of the establishment is statutorily constrained by Florida’s transitory foreign substance statute. The statute provides that 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 notice of the dangerous condition and should have taken action to remedy it. § 768.0755(1). 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.

In assessing how long a substance has been on the floor, courts look to several factors including evidence of footprints, prior track marks, changes in consistency or drying of the liquid. The mere presence of water on the floor is not enough to establish constructive notice.

Here, there was more than just a puddle in the storage room. Plaintiff testified as to the existence of footprints and smudge marks right beside the puddle, as well as the dried condition of the puddle indicating age and the size of the puddle. This evidence, along with other evidence such as the fact that there were daily security and custodial visits to the storage room by the condo’s security and custodial service, gave rise to constructive notice, precluding summary judgment.

UNDER SECTION 768.0755 A BUSINESS ESTABLISHMENT IS NOT LIABLE FOR THE NEGLIGENT ACTS OF A CUSTOMER OR INVITEE IN THE ABSENCE OF ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF A DANGEROUS CONDITION—EVIDENCE INSUFFICIENT TO PROVE CONSTRUCTIVE KNOWLEDGE WHEN THE SPILL WAS ON THE FLOOR FOR ONLY TWO MINUTES PRIOR TO THE PLAINTIFF SLIPPING AND THE SPILL WAS NOT THE RESULT OF A REGULARLY OCCURRING DANGEROUS CONDITION CREATED BY THE DEFENDANT

Publix v. Safonte, 49 Fla. L. Weekly D1337 (Fla. 4th DCA Jun. 20, 2024):

The plaintiff was in the dairy department’s yogurt section. Shortly before, another invitee who had made a delivery to Publix before entering the store to do some shopping, had picked up a few containers of yogurt and put them in his cart. While the invitee continued shopping, a six-ounce yogurt container fell out of his cart and spilled on the floor, making a sound as it hit the floor.

Just before the container hit the ground, one of Publix’s employees was restocking the shelves in the cheese section and had his back to where the spill occurred. When the container hit the ground, the employee did not turn around, nor did he take any action indicating he had heard or became aware that the yogurt had fallen. The invitee bent over to pick up the yogurt container and then left to go replace it.

Two minutes later, the plaintiff slipped and fell in the yogurt. The plaintiff sued Publix, and Publix asserted a Fabre defense based on the invitee’s negligence. The jury found both Publix and the invitee negligent and awarded damages.

Publix renewed its motion for directed verdict, arguing the evidence was insufficient for a reasonable jury to conclude that it had actual or constructive knowledge of the spill.

While there is no bright-line rule as to how much time must elapse before constructive knowledge may be imputed to a defendant, a reasonableness standard governs whether the dangerous condition existed sufficiently long enough that it would have been discovered in the exercise of reasonable care. Because the yogurt spill was on the floor for only two minutes, the spill could not have been discovered while exercising ordinary care.

To prove a dangerous condition occurred with regularity, the plaintiff must provide evidence of a recurring or ongoing problem that could have resulted from operational negligence or negligent maintenance. Here, Publix was not responsible for the yogurt container falling out of the cart and spilling. Therefore, the yogurt spill was not the result of a regularly occurring dangerous condition created by Publix.

Although a business establishment owes a nondelegable duty to an invitee to maintain the premises in a reasonably safe condition, the doctrine represents a narrow exception to the rule that an employer who retains an independent contractor is not liable for the acts of that contractor. The key question is whether the invitee was hired or retained by Publix to perform services encompassed within its duty. If Publix had hired or retained the invitee, it could have been vicariously liable under the nondelegable duty doctrine if those services were performed negligently.

Here, Publix could not be liable for the invitee’s negligence because Publix never hired or retained the invitee to perform a duty to maintain the premises in a safe condition for its patrons.

Because the evidence was insufficient for a reasonable jury to conclude that Publix had actual or constructive knowledge of the yogurt spill, it could not be held liable for the invitee’s negligence. The court ruled that on remand, the trial court should grant Publix’s motion for directed verdict, deny the plaintiff’s motion to hold Publix jointly and severally liable for the invitee’s negligence, and enter judgment for Publix.

ERROR TO GRANT PLAINTIFF’S MOTION FOR A NEW TRIAL BASED ON DEFENSE COUNSEL’S COMMENTS IN CLOSING ARGUMENT, BECAUSE OBJECTIONS WERE NOT PRESERVED AND COMMENTS WERE NOT FUNDAMENTAL ERROR.

Sloan v. Fisher, 49 Fla. L. Weekly D1352 (Fla. 5th DCA Jun. 21, 2024):

During closing arguments in this automobile accident case, defense counsel urged the jury that the plaintiff was hoping that it would not follow the law and put only five or ten percent comparative fault on the plaintiff. Plaintiff’s counsel objected and the court sustained the objection and instructed the jury not to consider the argument.

Defense counsel also argued to the jury that there was a difference between a “medical” case and a “legal” case, because the two have different goals. A person who is injured generally wants to recover as quickly and cheaply as possible and be able to get on with his/her life.

However, as the defense lawyer argued, the goal in a legal case is to paint a picture that will hopefully lead a jury to award substantial money for pain and suffering. In the legal path, it’s better if the treatment goes on, preferably for the rest of the person’s life. It’s also better if none of the injuries ever get better. The defense lawyer told the jury, for a victim with a case, the longer the treatment lasts, the higher the bills and the more the victim can ask a jury to award.

Plaintiff’s counsel did not object to this portion of the defense counsel’s closing. Defense counsel continued to argue that the case was “clearly a legal case.” Defense counsel asserted that the plaintiff’s medical damages were smoke and mirrors, at which point the plaintiff did object.

The trial court sustained the objection, instructed the jury to disregard the comment, and admonished defense counsel in front of the jury. Plaintiff at no point moved for a mistrial. Afterwards, the trial court granted a new trial, finding the defendant’s arguments were patently improper and warranted a new trial because the comments insinuated that the plaintiff had falsified the case for financial gain.

The appellate court reversed. It found that the comments were not preserved by contemporaneous objection, nor was there a timely motion for mistrial, requiring a showing of fundamental error.

The court found that while the comments were undeniably improper, they did not satisfy the Murphy standard that they gravely impaired the fair consideration and determination of the case to the extent that the verdict could not have been obtained but for the improper comments. The improper comments individually and cumulatively were not of such force that the verdict could not have been obtained but for those comments.

In light of the sustained objections, the curative instructions, and the admonition of counsel in front of the jury, the court found the effect of the improper comments fell short of fundamental error because they did not so damage the fairness of the trial that the public’s interest in our system of justice required a new trial.

NO ERROR IN GRANTING SUMMARY JUDGMENT ON CLAIM THAT DEFENDANT BREACHED NONDELEGABLE DUTY TO MAINTAIN PREMISES IN REASONABLY SAFE MANNER—TRIAL COURT DID NOT ERR IN DENYING MOTION TO AMEND COMPLAINT TO ADD PUNITIVE DAMAGES BY FAILING TO CONDUCT REASONABLE INQUIRY INTO WHETHER ITS EMPLOYEE HAD ANY RACIAL BIAS AND IN FAILING TO HIRE TWO SECURITY GUARDS INSTEAD OF ONE (AS RECOMMENDED BY THE SECURITY COMPANY).

Ortega v. Burger King, 49 Fla. L. Weekly D1326 (Fla. 3d DCA Jun. 19, 2024):

In this case where a person got shot, the Plaintiff appealed the trial court’s granting of summary judgment in favor of Burger King, where he alleged issues of fact remained based on Burger King’s alleged breach of its nondelegable duty to maintain its premises in a reasonably safe manner. Plaintiffs also claimed that the trial court erred in denying their motion to amend to add a claim for punitive damages based on the allegation that Burger King was willfully or grossly negligent by failing to conduct a reasonable inquiry into whether its employee had any racial bias and in failing to hire two security guards instead of one as recommended by its security company.

The court admonished that a landowner is not absolutely liable under the concept of nondelegable duty, and the general rule that a landowner or employer of an independent contractor is not liable for the negligent acts of an independent contractor is subject to numerous exceptions.

The landowner is only liable for the independent contractor’s breach of the landowner’s nondelegable duty to provide reasonably safe premises for its invitees. The court ruled in this case, that the landowner was not legally responsible for the negligent discharge of a firearm by a guard of the independent contractor, because such a shooting in no way constitutes a breach of the landowner’s nondelegable duty to provide reasonably safe premises to its business invitees including reasonable protection against third-party criminal attacks. The nondelegable duty is solely a breach of the independent contractor’s tort duty to conduct itself in a reasonably safe manner so as not to injure third parties.

Because there was no nondelegable duty, there was also no claim against Burger King for its willful or gross negligence by failing to conduct a reasonable inquiry regarding the racial bias issue.