United States District Court, S.D. Florida
G. Torres, U.S. Magistrate Judge Counsel of record.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
G. COOKE, UNITED STATES DISTRICT JUDGE.
Leidys Martin (“Plaintiff) brings this negligence
action against Defendant United States of America
(“Defendant”) pursuant to the Federal Tort Claims
Act, see 28 U.S.C. § 2671, et seq.; 28 U.S.C.
§ 1346(b)(1), because of a fall she suffered at the
Federal Correctional Institution in Miami
(“FCI-Miami”) while visiting her husband.
Defendant has filed a Motion for Summary Judgment
(“Motion”) (ECF No. 31). Included in its Motion
is its Statement of Undisputed Material Facts. Id.
Plaintiff filed her Response in Opposition (ECF No. 32),
which also includes within it a Statement of Undisputed
Material Facts. Defendant has filed its Reply (ECF No. 37)
and the matter is now ripe for review. After careful review
of the parties' briefs, the record, and the relevant
legal authorities, Defendant's Motion is granted.
husband is currently serving a sentence at the FCI-Miami,
where he has been since incarcerated October 31, 2013.
Def's Statement of Undisputed Material Facts
(“Def's SMF”), ECF No. 31, ¶
Since October 31, 2013, Plaintiffs husband has been allowed
six visits a month. Id., at ¶ 2. As of the date
of her deposition in May 2017, Plaintiff had visited her
husband on each of his available visits except one.
Id., at ¶ 3. During each of her visits,
Plaintiff follows a routine. Id., at ¶ 4. For
Saturday visits, Plaintiff arrives around 6:00 a.m. and waits
in her car until right before 8:00 a.m., when the doors to
the facility open. Id., at ¶ 5; Pl.'s
Depo., ECF No. 31-1, 66:25-67:1. Plaintiff is usually one of
the first in line to enter the facility to wait to be
processed. Def.'s SMF, at ¶ 5. Once inside the
doors, the visitors are processed and organized into groups
of five for entry into the visiting area. Id., at
¶ 5. A Federal Bureau of Prisons (“BOP”)
officer escorts each group of five visitors into the visiting
room one group at a time. Id., at ¶¶ 7-8.
Once inside the visiting room, Plaintiff follows her routine
of taking her identification and form to the BOP desk,
putting her things in the seating area assigned to her, and
then going to the vending. Id., ¶ 10. According
to Plaintiff, the visitors usually go to the vending machines
first because the vending machines tend to run out of food.
Pl.'s Depo., 85:21-22.
after visits conclude for the day, BOP has orderlies clean
and mop the visiting areas. Def.'s SMF, ¶ 27. After
the orderlies have cleaned the room, a BOP officer does a
general walkthrough of the area. Aguilar Depo., 15:5-8. It is
part of the BOP officer's responsibility to make sure the
visiting room is clean and inspected before going home.
Andrews Depo., 9:7-14. In addition to checking the room in
the evening, on the morning of a visiting day a BOP officer
does a general walk-through of the visiting room before
opening the room to visitors. Aguilar Depo., 11:11-12:14.
Saturday November 22, 2014, Plaintiff visited her husband at
FCI-Miami. Def.'s SMF, ¶ 11. BOP Officer Aguilar and
BOP Officer Andrews entered the visiting room at 7:30 a.m.
that morning. Pl.'s Statement of Undisputed Material
Facts (“Pl.'s SMF”), ECF No. 32, ¶
34-35. Officer Aguilar performed a general walk through soon
after he arrived, including inspecting the area where
Plaintiff later slipped. Aguilar Depo., 11:11-23. At about
8:40 a.m., BOP officers began processing visits. Pl.'s
SMF, ¶ 36. Plaintiff was in the third visitor group
processed for visits, but in the first group of visitors
allowed into the visiting room. Def.'s SMF, at ¶ 13.
Once inside the visiting room and after checking in with the
BOP desk, Plaintiff went to the vending machine and purchased
a pizza and sandwich. Def.'s SMF, at ¶ 14. She was
the first person at the vending machine. Pl's SMF, ¶
39. As she was going back to her assigned seating area,
Plaintiff slipped and fell near the entrance of the visiting
room. Def.'s SMF, at ¶¶ 14-15. Plaintiffs slip
occurred around 8:46 a.m. Aguilar Memo., p. 2. According to
Plaintiff, she slipped on some water. Pl.'s Depo.,
101:4-19. Plaintiff testified that the substance was clear
and not dirty, and that she heard someone say the substance
was water. Pl.'s Depo., 102: 17-23, 103:5-12. Ms. Rose
Donahue, a fellow visitor, testified that she did not
remember seeing any water on the floor where Plaintiff
slipped. Donahue Depo., 28:7-12. According to Plaintiff, a
BOP supervisor and some relatives wiped up the area where she
fell. Pl.'s Depo., 103:5-10. Plaintiff recalls seeing the
BOP supervisor with a wet paper towel. Pl.'s Depo.,
104:5-15. BOP Officer Aguilar observed dry wet spots where
Plaintiff fell, as well as two black skid marks from
Plaintiffs shoes. Pl.'s SMF, ¶ 52. However, Officer
Aguilar did not see any water or any indication that there
had been water other than the spots. Aguilar Depo.,
Plaintiffs many weekend visits where she was in the first
group allowed into the visiting room, she has not seen water
on the floor where she slipped, nor has the visiting room
been dirty. Pl.'s Depo., 117:22-118:9. Ms. Donahue also
testified that the room always looked clean and she did not
know why the floor would have been wet that morning. Donahue
Depo., 45:3-7, 60:4.
judgment is appropriate when “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 function of the trial court is not
“to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50 (1986). “The moving party
bears the initial burden to show the district court . . .
that there is no genuine issue of material fact that should
be decided at trial.” Clark v. Coats & Clark,
Inc., 929 F.2d 604, 608 (11th Cir. 1991). Only when that
burden has been met does the burden shift to the non-moving
party to demonstrate that there is indeed a material issue of
fact that precludes summary judgment.” Id. Any
inferences drawn from the underlying facts must be viewed in
the light most favorable to the nonmoving party. Scott v.
Harris, 550 U.S. 372, 378 (2007). However, “there
is no issue for trial unless there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict
for that party.” Anderson, 477 U.S. at 249-50
(citing First National Bank of Arizona v. Cities Service
Co., 391 U.S. 253, 288-89 (1968)). “If the
evidence is merely colorable or is not significantly
probative, summary judgment may be granted.”
Id. (internal citations omitted).
the Federal Tort Claims Act [“FTCA”], the United
States is liable for the negligent conduct of its employees
‘in the same manner and to the same extent as a private
individual under like circumstances.'” Howell
v. United States, 932 F.2d 915, 917 (11th Cir. 1991)
(citing 28 U.S.C. § 2674; see also 28 U.S.C.
§ 1346(b)). “Congress's chief intent in
drafting the FTCA was simply to provide redress for ordinary
torts recognized by state law.” Id. As such,
state law applies to determine whether Defendant is liable
for negligence. Id. Under Florida law, “[t]he
mere fact that a person falls in a store does not
automatically mean that the store is liable.”
Yaicel De La Caridad Sanchez v. Sears, Roebuck &
Co., 2015 WL 6599696, at *2 (S.D. Fla. Oct. 30, 2015)
(citing Bucholtz v. City of Jacksonville, 72 So.2d
52, 53 (Fla. 1954)). To support a negligence action, a
Plaintiff must show: “(1) duty, (2) breach of duty, (3)
injury arising from the breach, and (4) damages caused by the
injury as a result of the breach of duty.” Vallot
v. Logan's Roadhouse, Inc., 567 F. App'x 723,
726 (11th Cir. 2014). Additionally, Florida statute provides,
“[i]f 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.” Id., at
725 (emphasis in original) (quoting Fla. Stat. §
sole argument in its Motion is that Plaintiff's
negligence claim fails because Plaintiff cannot show that
Defendant had actual or constructive knowledge that there was
allegedly a substance on the floor. Plaintiff does not
contend that Defendant had actual knowledge; rather,
Plaintiff maintains that the alleged substance was on the
ground a sufficient time for Defendant to have constructive
knowledge of its presence. “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.” Delgado v. Laundromax,
Inc., 65 So.3d 1087, 1090 (Fla. Dist. Ct. App. 2011)
(citing Schaap v. Publix Supermarkets, Inc., 579
So.2d 831, 834 (Fla. 1st DCA 1991)).
instant case, there is an issue of fact as to whether there
was water on the ground where Plaintiff fell. Plaintiff said
she saw a clear substance on the ground after she slipped and
that the visitors who wiped the floor where she fell had wet
paper towels; however, neither Officer Aguilar nor Ms.
Donahue saw any water. Taking this evidence in the light most
favorable to Plaintiff, I must conclude that there was some
wet substance on the floor that was clear and could have been
water. Nevertheless, “the mere presence of water on the
floor is not enough to establish constructive notice[;] the
record must contain additional facts in support of liability,
to create a permissible inference upon which [Plaintiff]
could rely in defense against [Defendant's] motion for
summary judgment.” Delgado, 65 So.3d at 1090.
“[A] person claiming that a store was negligent by not
cleaning up a dangerous condition must present some evidence
that the dangerous condition that caused her fall existed for
such a ...