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Berbridge v. Sam's East, Inc.

United States District Court, S.D. Florida

August 18, 2017

SAM'S EAST, INC., d/b/a Sam's Club, Defendant.



         THIS CAUSE is before the Court upon Defendant Sam's East, Inc.'s (“Defendant”) Motion for Summary Judgment, ECF No. [65] (the “Motion”). The Court has carefully reviewed the Motion, the record, all supporting filings, the exhibits attached thereto, and is otherwise fully advised. For the reasons that follow, Defendant's Motion is granted.

         I. BACKGROUND

         This case involves allegations of negligence against Defendant arising from a slip-and-fall incident at Defendant's store on August 10, 2015. See ECF Nos. [1-2], [64] at ¶ 2. While Plaintiff, Tania Berbridge (“Plaintiff”), was shopping at Defendant's store, she slipped and fell on “dirty water” on the floor of the frozen-food aisle. See ECF No. [64] at ¶ 2; ECF No. [80] at ¶ 2. Plaintiff entered the frozen-food aisle from the rear and no one else was present at the time of the incident. See ECF No. [80] at ¶ 62; ECF No. [65-2] at 67. After Plaintiff fell and picked herself up from the ground, a male employee, James Tello (“Tello”), came around the corner and approached her at which time Plaintiff showed him the substance on the floor.[1] See ECF No. [64] at ¶¶ 3 and 14; ECF No. [80] at ¶¶ 3 and 14. Tello then looked at the floor followed by the ceiling and noticed that the air conditioning unit (“AC unit”) was dripping. See ECF No. [64] at ¶ 3; ECF No. [80] at ¶ 3. Tello indicated that the water on the floor was coming from the AC unit.[2] Id. Before Plaintiff left the area, she observed a drop of water leaking from the AC unit, but testified that it was not dripping heavily. Id. Tello cleaned up the water. See ECF No. [64] at ¶ 15; ECF No. [80] at ¶ 15.

         Plaintiff did not see the substance until after her fall. See ECF No. [64] at ¶ 4; ECF No. [80] at ¶ 4. She testified it was “like dark, like a dirty.” Id. She could not remember whether it was clear water, but testified that it “wasn't that big” and it was “like medium size.” Id. The substance was wet but not sticky, and there were no shopping cart marks going through it. See ECF No. [64] at ¶ 5; ECF No. [80] at ¶ 5. When Plaintiff stood up from the floor, she observed a mark caused by her shoe sliding through the substance. See ECF No. [64] at ¶ 6; ECF No. [80] at ¶ 6. Plaintiff does not know what caused the substance to be dirty.[3] Id. She likewise does not know how long the AC unit was leaking before her fall, how long the substance was on the floor, whether anyone at Defendant's store knew about the leaking AC unit, or the last time the area was inspected.[4] See ECF No. [64] at ¶¶ 7, 9, 10 and 11; ECF No. [80] at ¶¶ 7, 9, 10, and 11. Tello similarly does not know how long the water was on the ground before Plaintiff's incident. See ECF No. [64] at ¶ 17; ECF No. [80] at ¶ 17. The Asset Protection Manager, Lawrence Lucce (“Lucce”), could not confirm the last time the frozen-food aisle had been inspected. See ECF No. [65-4] at 61-62.

         According to Defendant's maintenance records, at 18:15:19 on the day of the incident, an entry was made stating: “PER STORE, A/C UNIT ABOVE MIDDLE FREEZER IS MAKIN [sic] LOUD RATTLING NOISES.”[5] ECF No. [81-1] at 6. Anthony Guzman (“Guzman”), the team lead for produce, grocery and freezer coolers, testified that he once heard a rattling above the middle freezer, so he used the scissor lift to raise himself to see the pipe. See ECF No. 65-5 at 21-22. He noticed the pipe was shaking, so he put his hand on it to make the shaking stop. Id. at 23. However, Guzman did not recall when he noticed the shaking pipe or whether this occurred in August of 2015. Id. at 32.

         In this lawsuit, Plaintiff has sued Defendant for negligence, alleging that Defendant, as a premises owner, owed her a duty to provide a reasonably safe environment and that it breached that duty by causing her to slip on a liquid substance and sustain injuries. See ECF No. [1-2]. Defendant has moved for summary judgment on all claims pled in the Complaint on the basis that Plaintiff cannot prove it had actual or constructive knowledge of the substance on the ground and did not, therefore, breach any duty owed to Plaintiff. See ECF No. [65]. Plaintiff and Defendant filed a timely Response and Reply respectively. See ECF Nos. [81] and [86]. This Motion is now ripe for adjudication.


         A court may grant a motion for summary judgment “if the movant shows that 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). The parties may support their positions by citation to the record, including, inter alia, depositions, documents, affidavits, or declarations. See Fed. R. Civ. P. 56(c). An issue is genuine if “a reasonable trier of fact could return judgment for the non-moving party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is material if it “might affect the outcome of the suit under the governing law.” Id. (quoting Anderson, 477 U.S. at 247-48). The court views the facts in the light most favorable to the non-moving party and draws all reasonable inferences in the party's favor. See Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). “The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which a jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252. The Court does not weigh conflicting evidence. See Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1140 (11th Cir. 2007) (quoting Carlin Comm'n, Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d 1352, 1356 (11th Cir. 1986)).

         The moving party shoulders the initial burden to demonstrate the absence of a genuine issue of material fact. See Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). If a movant satisfies this burden, “the nonmoving party ‘must do more than simply show that there is some metaphysical doubt as to the material facts.'” Ray v. Equifax Info. Servs., L.L.C., 327 F. App'x 819, 825 (11th Cir. 2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Instead, “the non-moving party ‘must make a sufficient showing on each essential element of the case for which he has the burden of proof.'” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The non-moving party must produce evidence, going beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designating specific facts to suggest that a reasonable jury could find in the non-moving party's favor. Shiver, 549 F.3d at 1343. But even where an opposing party neglects to submit any alleged material facts in controversy, a court cannot grant summary judgment unless it is satisfied that all of the evidence on the record supports the uncontroverted material facts that the movant has proposed. See Reese v. Herbert, 527 F.3d 1253, 1268-69, 1272 (11th Cir. 2008); United States v. One Piece of Real Prop. Located at 5800 S.W. 74th Ave., Miami, Fla., 363 F.3d 1099, 1103 n.6 (11th Cir. 2004).


         Defendant seeks summary judgment on the basis that there is no evidence it had actual or constructive knowledge of the substance on the ground prior to Plaintiff's fall and therefore, there is no evidence it breached a duty. Plaintiff, on the other hand, argues that there is evidence of both actual and constructive notice, requiring the denial of summary judgment. Reviewing all facts and drawing all inferences in Plaintiff's favor, the Court finds that, as a matter of law, Plaintiff cannot prove that Defendant had actual or constructive notice.

         A. Premises Liability Standard

         The Court begins its analysis with the notion that, in a diversity case, it must apply the substantive law of the state in which the case arose. See Pendergast v. Sprint Nextel Corp., 592 F.3d 1119, 1132-33 (11th Cir. 2010). For that reason, the Court looks to Florida negligence law. In a negligence claim, Florida law requires that a plaintiff prove the following four elements: (1) the defendant had a duty to conform to a certain standard of conduct, (2) the defendant breached that duty, (3) the breach of that duty caused damages to the plaintiff, and (4) the plaintiff sustained damages. Encarnacion v. Lifemark Hospitals of Fla., 211 So.3d 275, 278-79 (Fla. 3d DCA 2017) (quoting Wilson-Greene v. City of Miami, 208 So.3d 1271 (2017)). In a premises liability case, Defendant, as a premises owner, owes Plaintiff, as a business invitee, [6] “a duty to exercise reasonable care to maintain [its] premises in a safe condition.” Encarnacion, 211 So.3d at 278. To demonstrate a breach of that duty in a case involving a transitory foreign substance, such as this one, the Florida Legislature has mandated that the plaintiff prove the defendant had prior notice - actual or constructive - of the dangerous condition. Florida Statute § 768.0755 states, in relevant part, as follows:

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 ...

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