Faith Gordon slipped and fell on August 23, 2006 at a Target store located in Palm Beach Gardens, Florida. She and her spouse filed their lawsuit in the Circuit Court of Palm Beach County, Florida claiming negligence and loss of consortium.
Tip: In a personal injury case against Target, a customer’s spouse can sue for loss of consortium.
Target removed this lawsuit to federal court. It asked the court to dismiss the case because there was no issue of material fact.
Customer says floor was slick
Faith Gordon’s (“Gordon” or “Customer”) answers to interrogatories (questions) and deposition testimony presented a theory that the floor itself created a slick condition which caused the fall.
A deposition is a witness’ sworn pre-trial testimony. It used to gather information as part of the discovery process and may be used at trial.
Target asked the court to dismiss the case. It argued that there is no evidence of any transitory or foreign substance on the aisle floor, or proof of any negligent maintenance, which would have caused or contributed to the Plaintiff’s fall.
Undisputed Facts
Gordon was shopping at Target on August 23, 2006. When she went to check out, the price of the storage boxes she wished to purchase did not come up on the register. As a result, Gordon went to check the price of the item on the shelf.
While on her way to do so, she slipped and fell in an aisle. Gordon was transported by ambulance to the hospital.
Tip: Taking an ambulance to the hospital increases the full value of a personal injury case. Learn what the full value of a personal injury case for settlement purposes.
Gordon suffered a concussion and broke her right elbow and three bones in her left foot. Gordon was wearing two-inch Onyx wedge sandals at the time of her fall.
Tip: Wearing two-inch wedge sandals may make a customer’s slip and fall injury case tougher. It may result in a lower settlement offer from Target or another store.
Regarding what caused the fall, on July 30, 2007, Target sent Gordon an interrogatory (written question), which asked her to describe in detail how the incident happened, including all actions taken by her to prevent the accident.
This is a standard question that is asked in any Florida personal injury lawsuit. The injured person must answer it if it is asked.
Gordon’s answer was:
“On the date of the accident I was trying to purchase storage boxes at Target. The person at the register did not know what the price of the storage boxes was, so I was walking back to find out the price.
I was walking from a carpeted area to a hard-surfaced area and with my first step on the hard surfaced area, my foot (shoe) slipped and I fell forward. I landed on top of my right arm/elbow and my face and head slammed the hard surfaced floor. There was nothing I could have done to prevent this from happening.”
Target also sent her an interrogatory that asked her to describe in detail each act or omission on the part of any party to the lawsuit that Plaintiff contends constituted negligence that was a contributing legal cause of the incident.
She responded:
“My attorney is still investigating what Target did wrong. I know when I first stepped on to the hard surfaced floor it was so slick that I had no traction so I fell and was badly injured. Target caused or allowed the carpet or floor to be dangerous.”
Target sent her an interrogatory that asked her to describe with specificity every object or obstruction on which Plaintiff fell or tripped or struck following the alleged fall or trip, she said:
“I do not know what was on the floor; I do know it was slick and there was no traction with my first step on the hard surfaced floor.”
Target took her deposition. She stated the following:
Q: Was there anything on the floor that caused you to fall?
A: I have no idea.
Q: Did you see a hangar, debris, paper, anything like that?
A: I don’t remember.
Q: Did you see any water on the floor?
A: I don’t remember.
Q: Did you see any liquid of any sort on the floor?
A: I don’t remember.
Q: Do you know what caused you to fall?
A: I have no idea.
My thoughts: It hurt her case that her answer to her interrogatory was that the floor’s slickness caused her fall, however in deposition she said she did not know what caused her fall. This makes it seem like her written answer was not true.
Faith Gordon’s submitted an affidavit that opposed Target’s motion for summary judgment. This is done to prevent a case from getting dismissed.
In her affidavit, she said:
“On the date of the accident at the Target store, my first step from the carpet to the tile caused me to slip and fall. My first step from the carpet to the tile was with my left foot and when my left foot was planted on the tile I had no traction.”
This is the first time Gordon mentioned smelling a cleaning product. This claim is contradicted by her answer to interrogatory number 13, wherein she said, “I do not know what was on the floor.” It is also contradicted by her deposition testimony, wherein she stated that she “had no idea” what caused her to fall.
She said in her affidavit “The spot I hit was like ice. At the time I smelled something like a cleaning product. The cleaning product smelled like WD-40 or floor cleaner.
I fell so hard I broke my right elbow; three bones in my left foot; suffered a huge right black eye; suffered a concussion and neck injury; and I still suffer from today, almost one and a half years later.
I was walking through the store, not running, and I would never have suffered the injuries I suffered unless the floor was super slick, causing me to fall with great force.”
Once she fell, several people arrived at the scene, including Target employees Stephanie Hardin and Paula Cavin, and emergency medical technician (“EMT”) Jose Santiago and paramedic Anthony Ferrer. Each of these individuals examined the floor and Gordon and observed nothing that could have contributed to Gordon’s fall.
My thoughts: If the EMTs say that they checked the floor and there was nothing on it, then this decreases the full value of the case. This assumes that no one cleaned the area after your fall.
Target Protection Specialist Paula Cavin testified as follows:
Q: When you heard her scream, how long did it take you to walk there?
A: A few seconds. I looked around the corner, I saw her laying there and I immediately went to that area, called the Code Green.
Q: When you got to the scene, did you look and check the floor to see if there was any reason or any problem with the floor that would have caused Ms. Gordon to fall?
A: Yes.
Q: It is important for you to do that?
A: Yes.
Q: And why is that?
A: Well, for one, it’s one of my core roles to do. There was-when we call a Code Green, team leaders in the store, they all come to the scene, the exec comes to the area, they don’t want anybody else tripping and falling.
I didn’t want the guests walking by tripping and falling, slipping and falling. I wanted to make sure the area was safe for the ambulance people, for our team members, for our guests.
Q: When you checked the floor, did you get down and check it with your hand?
A: Yes, I did.
Q: Did you check it with your shoes to see if there was a slippery area?
A: Yes.
Q: Did you find anything slippery?
A: No.
Q: Did you find anything at all that was out of the ordinary or a hazard that might have caused Ms. Gordon to fall?
A: No.
Executive Team Leader Stephanie Harden testified as follows:
Q: Okay. So you have the first step of preparing the report and gathering information from the scene?
A: Yes.
Q: Okay. And when you went to the scene in this case, was the floor clean and dry?
A: Yes.
Q: Okay. Did you find anything on the floor that would have caused Ms. Gordon to fall on August 23rd ?
A: No.
Q: Did you check her clothes to see if her clothes had picked up any moisture?
(My thoughts: Moisture on the injured person’s clothes is one of the 13 Important Ways to Show the Floor You Slipped on Was Wet.)
A: Yes.
Q: And were they dry?
A: They were dry.
Q: Did you see any hangers or any kind of article that would be foreign to the floor that shouldn’t be there that would have caused her to fall?
A: No.
Q: Did you get down and check the floor with your hand in the area of where her fall occurred?
A: Yes.
Q: And when you checked the floor with your hand, was the floor clear and dry?
A: Yes.
Q: Did it appear slippery to you in any fashion, the floor?
A: No.
Q: Had you been in that area within five or ten minutes of this accident happening?
A: Yes.
Q: And had you walked approximately the same area where Ms. Gordon had walked?
A: Yes.
Q: And did you have any trouble; was it slippery, was there anything unusual about the area when you traversed it about five minutes before Ms. Gordon’s accident?
A: No.
Jose Santiago, EMT, testified that:
Q: So if there were a hazard present when you arrived on the scene, is this where you would record it?
A: If there is anything around the patient or anything around that could be dangerous or cause any type of problem or hazard, yes, we’ll make sure we make note of it.
Q: Is there any type of hazard noted her on your report?
A: From what I could see, no.
Q: And then there is category, “Field Impressions.” And is that based-is that the input from your group, the Fire Rescue Paramedics?
A: This is our input as for the paramedics.
Q: And that’s your impression as to what happened and what you found, is that right?
A: Right.
Q: And what is recorded there, please?
A: Under the field impression it says, “stumbled and fall, bumping forehead, causing an abrasion to the right eye and pain to the left arm.”
Anthony Ferrer, Palm Beach County Fire Rescue paramedic, also testified that he observed no hazards of any sort when he arrived at the scene where Gordon was.
Discussion
To a support a negligence lawsuit, the burden of proof is on the plaintiff to establish that:
(1) the defendant owed a duty of reasonable care to maintain the premises in a reasonably safe condition;
(2) the defendant breached that duty; and
(3) the defendant’s breach was the proximate cause of the plaintiff’s injuries and resulting damages. Lake Parker Mall, Inc. v. Carson, 327 So.2d 121, 123 (Fla.Dist.Ct.App.1976). (Learn more about Florida mall injury cases).
To establish a breach, the plaintiff must show that the defendant failed to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises. Id.; Spadafora v. Carlo, 569 So.2d 1329, 1330 (Fla.Dist.Ct.App.1990).
“Negligence may not be inferred from the mere happening of an accident alone.” Belden v. Lynch, 126 So.2d 578, 581 (Fla. Dist. Ct. App.1961); see also East Bay Raceway v. Parham, 497 So.2d 719, 720 (Fla.Dist.Ct.App.1986).
The mere fact that one slips and falls on a floor does not constitute evidence of negligence, nor does the fact that a floor was slick make the owner liable.
Tip: You can have an expert witness use a tribometer to test the floor’s coefficient of friction (COF). An unsatisfactory COF may make Target liable.
Experts usually require a minimum retainer of $1,200, which an attorney can advance. The lawyer is then paid for his attorney’s fees and costs if the case settles.
In Bucholtz v. City of Jacksonville, 72 So.2d 52, 53 (Fla.1954), the Florida Supreme Court rejected the claim of a woman who slipped and fell on steps where it was alleged the treads of the steps were permitted to be “worn slick and smooth”.
The court noted that the owner of property which contains areas that become smooth are not obligated to “destroy the smoothness” of such areas.
The court further described the case as “a good illustration of the thought that every time someone is injured, someone else should pay for the injury.” Id. See also Williams v. Holland, 205 So.2d 682, 683 (Fla. Dist. Ct. App. 1968).
In the Gordon case, the undisputed facts are that Gordon fell and was injured in a Target store. Gordon had no idea what caused her to fall, except that the floor was “super slick.”
Beyond this fact there is no testimonial or direct evidence either as to the condition of the floor or the cause of the fall. Four people arrived at the scene shortly after the fall and no one saw anything that could account for the fall.
The court said that in order to arrive at a conclusion that Target was responsible in damages for the ultimate injury, the jury would have to infer in the first place that under all of the circumstances there was negligence on the part of Target in the maintenance of its floor.
Based on the evidence in this case, Target has met its burden by identifying depositions and answers to interrogatories, together with the affidavit, which it believes demonstrate the absence of a genuine issue of material fact.
By making this initial showing, the burden shifts to Gordon to point to other evidence that would show that there was indeed a genuine issue of fact regarding the causation issue.
Customer Doesn’t Have to Specifically Identity Nature of Substance
It is not necessary that Gordon identify with any specificity the nature of the substance or condition of the floor that caused her to fall. (This was mentioned in a case where a customer sued a Sears for a slip and fall in its garage.)
Thus, even though Gordon cannot say what caused her to fall, “she should not be denied her day in court unless it is conclusively proven that there was no substance on the floor that was the proximate cause of her injuries.”
Court Distinguishes this Case from Sears Garage Case
However, in the case where a customer slipped and fell at a Sears Garage, the court found that absent claims by the patron as to the substance on which she allegedly slipped, the store was not liable for injuries suffered by the patron where immediately following the fall:
- the store’s safety coordinator examined the area for the presence of any foreign substance on the floor or on plaintiff’s clothing and did not find anything, and
- there was no evidence that any other person observed any foreign substance or debris on floor.
Back to the Target case…
In Gordon, the court said that this is not a case where Gordon has simply failed to demonstrate what substance was on the floor that caused her to fall.
No Substance or Item on Floor that Caused Fall
Rather, this is a case where Gordon has failed to raise a genuine issue of material fact that there was any substance or item in the floor that caused her to fall or that Target failed to exercise reasonable care in maintaining the premises.
Target’s evidence established that immediately following Plaintiff’s fall, an inspection was made by at least four people, who examined the area for the presence of any transitory foreign substance or debris. All inspections did not find anything.
Customer Had No Idea What Caused Her to Fall
The claimant had no idea what caused her to fall and there is no evidence of any other person, employee, or customer who made such an observation.
It appears that her case is grounded in no more than a guess or speculation, not founded on observable facts or reasonable inferences.
Her description of the accident contains no claim of any positive act or omission on the part of Target. The Court said that it is mindful to draw inferences from the evidence in the light most favorable to Gordon and resolve all reasonable doubts in Gordon’s favor.
However, only one inference reasonably can be drawn from the evidence in this case. That inference is that Gordon’s fall was not due to Target’s failure to maintain its floor in a reasonably safe condition. This inference leads to the unavoidable conclusion that Plaintiff cannot prove her claim of negligence as a matter of law.
The victim’s affidavit, made after she answered Target’s interrogatories and after she completed her deposition, mentions for the very first time that she “smelled something like a cleaning product … like WD-40 or floor cleaner” when she fell.
Raising this issue for the first time constitutes an impermissible attempt to change her testimony in an effort to avoid dismissal.
If Gordon had forgotten in her answers to interrogatories the “fact” that she had smelled a cleaning product when she fell, she had enough opportunity to amend her answers and provide this information to Target when she testified at her deposition.
She did not. Moreover, she now reveals this significant “fact” without any explanation of why she failed to reveal this “fact” before filing her affidavit in opposition to summary judgment.
The court said that even if it considered her affidavit and the fact that she smelled something like WD-40 or a cleaning product when she fell, such testimony does not logically lead to the conclusion that what she smelled was on the floor, caused her to fall and was a result of Target’s negligence.
In order to arrive at a conclusion that Target was responsible for Gordon’s injury, the jury would have to infer from the fact that Gordon smelled a substance that the substance was actually present; then they would have to infer that the substance caused Gordon to fall; then they would have to infer that the presence of the substance was a result of Target’s failure to use or exercise reasonable care in maintaining the premises.
The Court concluded that such a conclusion could only be reached by impermissibly piling inferences upon inferences. “The right to recover in a slip and fall case requires more than a showing simply that the surface upon which the injured fell was slick, smooth or wet.” See Williams v. Holland, 205 So.2d 682, 683 (Fla.Dist.Ct.App.1968).
Before there can be recovery for a slip and fall injury, the allegations must show some negligence on the part of the landowner. Bucholtz v. City of Jacksonville, 72 So.2d 52 (Fla.1954); Commercial Credit Corporation v. Varn, 108 So.2d 638, 639-40 (Fla.Dist.Ct.App.1959).
Target met its initial burden of establishing that there was no substance on the floor that was the proximate cause of her injuries and that it did not fail to use reasonable care. Kirk v. TJ Palm Beach Associates Limited Partnership, 976 So.2d 694 (Fla.Dist.Ct.App.2008).
Having met its burden, the burden then shifted to Gordon to show that there is indeed a genuine issue of fact regarding Target’s alleged negligence. Gordon did not meet this burden.
Where the cause of the fall, as in this case, is mere speculation, guess, or conjecture, there is not even a trace of evidence to create a material issue of fact for jury determination. Therefore, the court granted Target’s motion for summary judgement.
The lady lost the case and received nothing. The court that decided this case was in West Palm Beach, Florida.
What was the name of this case?
The case that this article is about is Gordon v. Target Corp., 07-80412-CIV, 2008 WL 2557509 (S.D. Fla. June 2008). The United States District Court, S.D. Florida heard the case.
This is not my case, though I have settled many Florida slip and fall claims.
Even though this case is from 2008, it is still important. It was cited in the following 2015 cases where a court:
- did not dismiss a case where a customer slipped and fell on clear water in a Kissimmee Walmart.
- dismissed a case where a shopper slipped and fell in the bakery section of a Target Store.
Tip: This court opinion is only available on Westlaw or through the court record. Westlaw is a legal research service with a monthly fee.
The customer’s attorney was from Stuart, Florida. Peterson Bernard, a Fort Lauderdale, Florida law firm, represented Target.
One of the 11 advantages of hiring a lawyer is that he or she may have access to this paid service.
Who handles slip and fall claims for Target in Florida?
Sedgwick is a third party administrator (TPA) that handles Target’s slip and fall claims in Florida. Learn more about Sedgwick personal injury claims in Florida.
Florida Slip and Fall Cases with Target’s Competitors
Learn about Florida slip and fall injury claims with some of Target’s other competitors such as:
- Slip and fall injury claims against Florida Walmarts.
- Costco Wholesale slip and fall injury claims in Florida
- Dollar General slip and fall injury claims in Florida
- Sears slip and fall injury claims in Florida
- Big Lots slip and fall injury claims in Florida
- Publix slip, trip and fall injury claims in Florida
- Winn Dixie slip, trip and fall injury claims in Florida
Did Target’s carelessness cause you to slip or trip and fall and suffer an injury in Florida? Were you injured in another type of accident and/or somewhere else?
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