Premises & Retail Liability

Key Points:

• Under Florida’s Transitory Foreign Substance Statute, Fla. Stat. § 768.0755(1), constructive notice may be inferred from either the amount of time a substance has been on the floor or the fact that the condition occurred with such frequency that the owner should have known of its existence. 
• Florida courts have held that plaintiff’s testimony accompanied by a “plus” in the form of additional facts from which a jury can establish constructive knowledge is enough to defeat a motion for summary judgment. 
• Testimony regarding footprints or track marks are sufficient “plus” factors. 

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In July 2010, the Florida Legislature enacted Florida’s Transitory Foreign Substance Statute, Fla. Stat. § 768.0755, which requires that a plaintiff “prove the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.” One of the ways a plaintiff can establish constructive notice is to show 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.” To this end, numerous appellate courts, as well as federal courts, have established and acknowledged the “plus” factor test. In the “plus” factor test, the plaintiff’s testimony of a substance on the ground, plus some additional facts from which a jury can reasonably conclude that the substance was on the floor long enough to constitute constructive knowledge, is enough to defeat a motion for summary judgment. 

In Valdes v. Verona at Deering Bay Condo. Ass’n, Inc., et al., 2024 WL 3049788 (Fla. 3d DCA June 19, 2024), the Third District Court of Appeals reversed the trial court’s final judgment entered in favor of Verona at Deering Bay. In this case, Valdes was helping a friend who lived at Verona return Christmas decorations to his friend’s storage unit. While in the storage unit, Valdes slipped and fell on a puddle right below a storage locker. While Valdes did not know how long the water was on the floor, he testified that the puddle appeared green, dirty, large, and dried up in certain areas. There were also smudge marks and footprints on the floor near the puddle but he acknowledged that they could have been his. Verona moved for summary judgment, arguing that the mere presence of the puddle did not establish constructive notice. The trial court granted its motion and entered final summary judgment in its favor. 

In its analysis, the district court indicated, “In trying to assess how long a substance has been sitting on a floor, courts look to several factors, including ‘evidence of footprints, prior track marks, changes in consistency, [or] drying of the liquid,’” citing Welch v. CHLN, Inc., 357 So. 3d 1277, 1278–1279 (Fla. 5th DCA 2023). In Sutton v. Wal-Mart Stores, E., LP, 64 F. 4th 1166, 1170 (11th Cir. 2023), the court stated, “Florida’s appellate courts have found constructive notice when the offending liquid was dirty, scuffed, or had grocery-cart track marks running through it, or if there was other evidence such as footprints, prior track mars, changes in consistency, or drying of the liquid.”

While the court agreed with Verona that the mere presence of the puddle was not sufficient to establish constructive notice, the trial court should have considered the “plus” factors in the plaintiff’s testimony and denied Verona’s motion for summary judgment. Here, Valdes established more than just the presence of a puddle. Rather, his testimony that the puddle was green, dirty, large, and dried up in certain areas satisfied the “plus” factor that the courts have established and acknowledged. 

However, where there is evidence supporting that the transitory foreign substance was not present long enough for constructive notice to be established, the “plus” factors will not be taken into consideration. In Publix Super Markets, Inc. v. Safonte, 2024 WL 3057561 (Fla. 4th DCA June 20, 2024), an invitee completed a delivery for a contractor who was performing repairs on Publix’s premises and then began shopping in his personal capacity. While shopping, a yogurt container fell out of his shopping cart and spilled onto the floor. The container made a faint sound when it hit the ground. A Publix employee was nearby stocking shelves but had his back to the invitee and the area where the yogurt spilled. The employee did not turn around or take any action that indicated he was aware of the spill. Approximately two minutes later, Safonte slipped and fell on the yogurt. The employee stopped stocking the shelf and assisted the plaintiff. A trail of yogurt was seen starting at the location where it was spilled and running through the dairy department. Safonte sued Publix for his injuries.

At trial, a jury found both Publix and the plaintiff negligent, apportioning 40% of the fault to Publix and 60% to the invitee, and awarding the plaintiff total compensatory damages of $241,460.00. Publix moved for a directed verdict, arguing that there was not sufficient evidence to establish actual or constructive notice, which the trial court denied. 

The District Court of Appeal reversed. It held that, despite there having been a trail of yogurt from the plaintiff’s shopping cart, the yogurt was only on the ground for two minutes and, thus, was not on the floor long enough to impute constructive knowledge on Publix. 

All in all, courts look to “plus” factors in a plaintiff’s testimony to determine if they have established constructive knowledge. If there is evidence showing the substance was not there long enough to constitute constructive knowledge, the “plus” factors will not be considered. 

Alicia is an associate in our Fort Lauderdale, Florida, office. 

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_{Defense Digest, Vol. 30, No. 3, September 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}