Updated: 8/23/15
Teresa Walker sued Winn-Dixie. In Walker v. Winn-Dixie Stores, Inc., Fla: Dist. Court of Appeals, 1st Dist. 2014, the appeals court of Florida, First District issued its opinion on August 20, 2014.
The 1st District has jurisdiction over thirty-two Florida counties: Alachua, Baker, Bay, Bradford, Calhoun, Clay, Columbia, Dixie, Duval, Escambia, Franklin, Gadsden, Gilchrist, Gulf, Hamilton, Holmes, Jackson, Jefferson, Lafayette, Leon, Levy, Liberty, Madison, Nassau, Okaloosa, Santa Rosa, Suwannee, Taylor, Union, Wakulla, Walton and Washington.
Walker’s slip and fall most likely happened in one of those counties. This is because, if you chose to sue Winn Dixie or another Florida supermarket, your lawsuit usually needs to be filed in the county where the slip and fall happened.
A Jacksonville lawyer represented the shopper. Jacksonville attorneys represented Winn Dixie. This is not my case, though I have settled several Florida supermarket (and other) slip and fall claims.
Before handling a Florida supermarket slip and fall case, the injured person or his/her attorney should read every Florida appellate slip and fall case so that they completely understand Florida’s slip and fall laws. There are hundreds, if not over a thousand, past Florida slip and fall appellate decisions.
In addition, he or she should read as many trial court orders as possible. This will help you understand what Florida trial judges think about slip and fall cases, and how they decide them
Without having a clear understanding of these cases, you are putting yourself at a big disadvantage going up against a company like Winn Dixie that has experienced claim adjusters.
Back to the Walker case…
Walker appealed the trial court’s entry of final summary judgment in favor of Winn Dixie in a “slip-and-fall” negligence lawsuit. This means that Walker appealed the court’s dismissal of her case.
Facts
She claimed that Winn-Dixie negligently maintained the floor of its premises by permitting a dangerous condition (a wet floor) to exist. She claimed that the dangerous condition “existed for a sufficient length of time” so that Winn-Dixie knew or should have known about it and corrected it.
She claimed that Winn-Dixie’s failure to do so resulted in her slipping and falling, causing injury and damages. Winn-Dixie denied any negligence. This means that Winn Dixie denied liability.
Walker was with her disabled friend for whom she was providing care to the Winn-Dixie store to help him with his shopping. When they arrived at the store it was “bright and sunny,” and there had been no rain that morning.
Walker went into the store to retrieve an electric cart for her friend, and the two entered the store, spending approximately 30 minutes shopping.
When she and her friend left the store and returned to their vehicle, the weather, as she 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 she went to return the electric cart. She explained that she “got as far as the handicapped poles, and it started misting.”
She said that it was a very light, “misting” rain. She said 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.
She 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.
She stated 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. She claimed she saw “wet tracks” from the wheels of the cart.
When asked if she saw any water tracks, she stated: “I just know that my shoes got damp from the floorboard of the electric cart” while bringing the cart back to the store.
She 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.
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 she 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 “before 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 said 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 where she fell, and he did not know what caused her to fall.
Based on this evidence, Winn-Dixie filed a motion for final summary judgment (dismissal), arguing that the recently passed 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 Walker’s favor, there was no evidence that Winn-Dixie had actual or constructive knowledge of water on the floor before her fall and that, although she “presented conflicting testimony concerning the potential sources of the `unnoticeable‘ drops of water on the floor where she fell, this testimony is based on guesswork and assumptions.”
At the summary judgment (dismissal) hearing, she agreed that she making her claim under a constructive, not actual, knowledge theory of negligence. She relied on her view of Williams’ testimony that Winn Dixie had begun, but did not complete, its rainy-day procedure.
She 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 said:
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 an injured person.
Clearly, the burden to demonstrate constructive knowledge of the alleged dangerous condition herein lies with the customer.
The trial court said that there is competent, substantial, detailed testimony showing that it began to rain or mist less than one minute before the shopper’s fall. The customer’s only evidence to dispute this is the speculative, vague testimony of the store director that it might have been raining before the shopper’s fall, but it was equally possible that it had not yet rained.
The trial court ruled that the store manager’s testimony was insufficient to meet her burden under section 768.0755. The shopper appealed.
Analysis
The Appeals court said that Section 768.0755, Florida Statutes (2010), provides:
(1) 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 knowledge of the dangerous condition and should have taken action to remedy it. Constructive 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.
(2) This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.
The appeals court said that here, Walker proceeded under a constructive notice theory of negligence. Viewing the evidence in the light most favorable to her, she failed to overcome her statutory burden of establishing such notice.
Her theory of liability was based on constructive knowledge of what she herself described as unnoticeable drops of water on the floor where she slipped and fell.
She argues that Winn-Dixie had constructive knowledge of this “unnoticeable” dangerous condition “based on the fact that the condition occurred with such frequency” that it should have known of its existence.
She argued that “the presence of the umbrella racks was constructive knowledge of the dangerous condition.” The appeals court disagreed.
According to Mr. Williams’ unchallenged testimony, it was Winn-Dixie’s standard policy to implement its “rainy-day” plan of putting out the umbrella bag rack, orange cones, and floor mats when it either looked as though it was about to rain, or was already raining.
Because the umbrella bag rack was visible in the surveillance video, he assumed it was either raining or about to rain at the time she fell.
He also testified that the video showed two of his employees inspecting the area where she fell just three minutes before it happened. Thus, when considering the uncontradicted aspects of Williams’ testimony as well Walker’s testimony, the presence of the umbrella bag rack indicated that the store was aware that it looked as though it was about to rain, or perhaps had just started raining.
According to Walker, however, it had only started raining (or “misting”) about one minute before she fell. Therefore, at most, the unnoticeable drops of water were on the floor area in question less than four minutes before the fall.
This short time period was not enough to satisfy the statute’s requirement that the alleged dangerous condition must exist “for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition” before constructive knowledge of the condition can be imputed.
The appeals court cited the case of Gaidymowicz v. Winn-Dixie Stores, Inc., 371 So. 2d 212, 214 (Fla. 3d DCA 1979). In Gaidymowicz, the evidence showed that the Winn Dixie store manager had been down the aisle only five minutes before the customer’s fall, finding nothing. The court ruled that this was not a sufficient time to correct the dangerous condition.
Gaidymowicz was decided by the District Court of Appeal of Florida, Third District. The 3rd District Court of Appeal, located in Miami, includes Miami-Dade and Monroe Counties.
Back to the Walker case…
Walker’s position is apparently that Winn-Dixie did not act fast enough to complete its rainy-day precautions before she fell. This ignores the statute’s provision that, unless a “condition occurs with regularity and was therefore foreseeable,” the duty to act is activated by actual or constructive notice of the presence of a transitory foreign substance, not simply the possibility that it might become present.
Here, not only did Walker fail to present any evidence that wet conditions occurred with regularity in the area where she fell, she also failed to present any evidence that the alleged wet condition lasted for more than one to four minutes.
The appeals court said that “evidence that no inspection had been made during a particular period of time prior to an accident may warrant an inference that the dangerous condition existed long enough so that the exercise of reasonable care would have resulted in discovery,”[1] However, there was an inspection of the subject area about three minutes before the incident, and she testified that the “misting” started only one minute before the incident.
The appeals court said that the facts here also differ from those in Feris v. Club Country of Fort Walton Beach, Inc., 138 So. 3d 531 (Fla. 1st DCA 2014), where the same court ruled that the trial court erred by entering summary judgment in a slip-and-fall case.
In Feris, the same appeal court determined that summary judgment (dismissal) was improper because there was circumstantial evidence of “active” negligence by employees of the premises (i.e., not enforcing the rule against allowing drinks on the dance floor), a recurrence of spills on the dance floor, and the existence of liquid on the floor for a sufficient amount of time so as to put the premises owner on notice.
In Walker, however, there was no evidence of recurring water in the area in question or of prior incidents in that area. At most, the alleged “unnoticeable” water was present for no more than four minutes.
My thoughts: The appeals court seemed to have a huge problem with Walker’s testimony that the water was “unnoticeable”. When describing Walker’s characterization of the water, it used the word “unnoticeable” six (6) times.
I assume that the court thought “How could Winn Dixie employees have seen “unnoticeable” water, if the injured person said that it was “unnoticeable”?
The appeals court said that there was no evidence of active negligence by Winn-Dixie employees. The appeals court held that Walker failed to overcome the burden of proving that Winn-Dixie had constructive knowledge of any alleged “transitory foreign substance” requiring remedial action. It affirmed the trial court’s entry of final summary judgment.
Walker lost the case. She gets nothing.
Want to Learn more about Winn Dixie Supermarket Accident Claims?
Check out these must see articles:
- Claim for Herniated Disc from Slip & Fall on Melted Butter at North Florida Winn Dixie
- Shopper sued Winn Dixie for a Trip and Fall on a Hole on a Handicap Access Ramp at a South Florida store.
Footnotes
[1] Schmidt v. Bowl America Florida, Inc., 358 So. 2d 1385, 1387 (Fla. 4th DCA 1978).
Learn about slip and fall injury claims against Florida bowling alleys.
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