By Terry P. Roberts | March 31, 2023

Sutton v. Wal-Mart Stores East, LP

Eleventh Circuit Court of Appeals

Sutton v. Wal-Mart Stores East, LP
11th Circuit Court of Appeals
3/31/23, Judge Marcus
Topics: Negligence, Premises Liability, Transitory Foreign Substance

This case is useful enough that I have already used it in a response to a summary judgment motion. This is a plaintiff-friendly decision applying Florida law regarding the statutory additional element in slip-and-fall cases against businesses. That element requires plaintiffs to also prove (in addition to normal tort elements) that the business had knowledge of the substance that caused the slip and fall.

In Sutton v. Wal-Mart Stores E., LP, 2023 WL 2720766, at *1 (11th Cir. Mar. 31, 2023). In Sutton, Ms. Sutton sued a Wal-Mart after she slipped in their West Palm Beach location and suffered injuries. Id.

While lying on the floor, she saw the culprit: a squished grape, accompanied by juice, a track mark, and footprints. No witnesses saw the grape before her fall, and a video in the record does not offer a clear picture of when the grape might have landed there.

Sutton v. Wal-Mart Stores E., 2023 WL 2720766, at *1 (11th Cir. Mar. 31, 2023). An employee had inspected that area an hour and a half-hour before Sutton’s fall, but the employee had not seen a grape on the floor either time. Id. Another employee walked through the area 10 minutes prior to the accident, and he hadn’t seen anything either. Video did not clear up when the grape wound up on the floor. Id. Sutton testified, however, that the grape and juice on the floor were “dirty” and she noticed one track mark a few inches away, but she didn’t know whose footprints they were. Id. She even admitted they were possibly her own footprints. Id.

In addition to the normal elements of negligence—duty, breach of duty, causation and damages—the Sutton court then examined the effect of Fla. Stat. § 768.0755 as follows:
- Under…Florida statutory law,
  - [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. 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. Fla. Stat. § 768.0755(1); see also Lago v. Costco Wholesale Corp., 233 So. 3d 1248, 1250 (Fla. 3d DCA 2017)(“[I]n Florida Statutes section 768.0755 the legislature modified a business’s duties when its invitees are injured by ‘transitory foreign substances.’ ”).

Sutton, 2023 WL 2720766, at *1 (emphasis supplied).

Wal-Mart removed the case from Florida state court based on diversity jurisdiction and then moved for summary judgment, arguing that there was no evidence of actual or constructive knowledge. Id. The district court agreed with Wal-Mart, granted summary judgment, and Sutton appealed. On appeal, the Eleventh Circuit observed:
- We need only consider the first form of proof--evidence of the length of time that the dangerous condition existed -- to resolve this case.
  
  “When considering whether there is an issue of fact for submission to a jury in transitory foreign substance cases, courts look to the length of time the condition existed before the accident occurred.” Wilson-Greene v. City of Miami, 208 So. 3d 1271, 1275 (Fla. 3d DCA 2017). Florida's courts have found “at least fifteen to twenty minutes…to be sufficient for defendants to be charged with knowledge of the condition and a reasonable time in which to correct it.” Winn Dixie Stores, Inc. v. Williams, 264 So. 2d 862, 864 (Fla. 3d DCA 1972); accord Lynch v. Target Stores, Div. of Dayton Hudson Corp., 790 So. 2d 1193, 1194 (Fla. 4th DCA 2001)(per curiam). Other decisions in Florida have determined that thirteen minutes or less is not enough time. See Oliver v. Winn-Dixie Stores, Inc., 291 So. 3d 126, 127– 30 (Fla. 4th DCA 2020); see also Walker v. Winn-Dixie Stores, Inc., 160 So. 3d 909, 912 (Fla. 1st DCA 2014)(holding “less than four minutes” to be insufficient).
  
  It is rare, however, that there will be direct evidence of how long a substance was on the ground, and “the mere presence” of the substance “is not enough to establish constructive notice.” Delgado v. Laundromax, Inc., 65 So. 3d 1087, 1090 (Fla. 3d DCA 2011). So, in the absence of direct evidence, Florida law requires that the plaintiff introduce circumstantial evidence of “additional facts” showing that that the substance had been on the ground for an extended period before the slip-and-fall to survive summary judgment. Id.

Sutton, 2023 WL 2720766, at *2–3. The Eleventh Circuit found two separate bases for reversing the district court’s order granting summary judgment.

First, and primarily, Sutton's own testimony created a jury issue on constructive notice. Sutton did not see the grape before she fell. After the fall, however, she testified that she saw a “dirty” grape with “track marks going through the grape and liquids,” as well as “footprints.” Time and again, 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 “[o]ther evidence such as ‘footprints, prior track marks, changes in consistency, [or] drying of the liquid.’”

Sutton, 2023 WL 2720766, at *3 (11th Cir. Mar. 31, 2023)(string-citation omitted).

The Sutton court then examined Welch v. CHLN, Inc., 2023 WL 2542275, at *1 (Fla. 5th DCA Mar. 17, 2023), a case from only weeks ago, describing Welch as follows:
- In Welch, the trial court had granted summary judgment for the defendant in a slipand-fall case where the evidence included dirty liquid and “footprints in the puddle that were going in different directions” and that the plaintiff testified, with “certainty,” “were not hers.” Id. at ––––, 2023 WL 2542275, *1. The appellate court reversed, emphasizing that “[i]n 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.’” Id. at ––––, 2023 WL 2542275, *2 (second alteration in original)(emphasis and citation omitted). It stressed that “footprints are a common feature of analogous slip and fall cases that survive summary judgment because they allow a jury to find that the substance was on the ground long enough for the defendant to discover it before the plaintiff's fall.” Id. The court observed that while the “dirty, murky, and slimy” liquid was “not enough -- by itself - - to create a jury question on constructive knowledge,” the additional testimony of “footprints in the puddle -- not belonging to” the plaintiff “raise[d] a fact question about [the defendant's] constructive knowledge.” Id. As a result, the Fifth District Court of Appeal reversed the grant of summary judgment and remanded the case for trial. Id. at ––––, 2023 WL 2542275, *3.

Sutton, 2023 WL 2720766, at *3–4. Turning back to the facts in its own case, the Eleventh Circuit then noted:

Here, Sutton unambiguously testified that there was a track mark and footprints through the grape. Thus, this case falls cleanly into the set of Florida cases that require a jury to decide whether the substance sat on the floor long enough to establish constructive notice. See Woods, 621 So. 2d at 711 (“Testimony of dirt, scuffing, or tracks in a substance generates sufficient inferences of constructive notice.”); Guenther, 395 So. 2d at 246 (“Here, testimony that the liquid was dirty and scuffed and had several tracks running through it was, in our opinion, adequate to impute constructive notice of the hazardous condition to the store manager.”). Unlike in Welch, there is no definitive testimony here about whether the footprints were made by Sutton or someone else. Although a jury might eventually decide that the footprints belonged to Sutton, “an equally compelling inference from the dirty appearance of the [grape] is that it had gone undetected on the floor for a sufficient period of time to place [Wal-Mart] on constructive notice.” Colon, 721 So. 2d at 771. Additionally, however, Sutton's testimony is clear that she saw a track mark only a few inches away, and that also afforded the reasonable inference that the grape had been on the ground for a sufficient period of time to establish constructive notice. All told, a jury must decide the case.

Sutton, 2023 WL 2720766, at *3–4.

Testimony by the business’s employees that it was routine or standard policy to have employees keep an eye out for transitory foreign substances on the floor did not help Wal-Mart’s case. In Welch, where the defendant was a restaurant, employees testified that on a “busy night” like the night of Welch’s accident, the restaurant would have had “at least two” employees assigned to the salad bar. One of those workers would have been stationed behind the salad bar “at all times.” Among their other duties, the salad bar employees were there to keep the floor clean. Welch, 2023 WL 2542275, at *1. In Welch, when coupled with footprints and tracks, the “quantity, appearance, and consistency of the” “dirty, murky, and slimy” liquid in Welch all combined to raise a sufficient fact question about the restaurant’s constructive knowledge. Welch, 2023 WL 2542275, at *2.
- In Sutton, a second basis for reversing summary judgment was that
  
  the video evidence presented also creates a material issue of fact in dispute about constructive notice. See Tallahassee Med. Ctr., Inc. v. Kemp, 324 So. 3d 14, 16 (Fla. 1st DCA 2021)(per curiam)(noting that a plaintiff “may use circumstantial evidence -- like the video evidence here -- to prove her case”). The video spans an hour and fifteen minutes before Sutton's fall; and it runs two hours in all. The video never shows anyone dropping a grape on the floor. As Wal-Mart admits, “the video does not show the alleged condition, how it got on the floor, or when.” A reasonable jury could infer from the absence of a clear moment when the grape fell to the floor in the video that the grape had been on the floor for more than one hour--far exceeding the time required for constructive knowledge. See Williams, 264 So. 2d at 864.
  
  Nevertheless, Wal-Mart insists that the affidavits of [two employees] establish not only that they walked by a total of three times over the course of an hour (and one time ten minutes) before the fall, but that they never saw a grape. That testimony is undermined by the account offered by Sutton and the video itself. So a jury must settle the score. Wal-Mart also argues that Sutton did not present evidence of where the grape came from, how it landed on the floor, or when it got there. All of that is true. But Florida law does not demand direct evidence about who or what caused the dangerous substance and when exactly it happened. Instead, circumstantial evidence that sufficiently establishes the dangerous condition was present for a long enough period of time is enough. See Fla. Stat. § 768.0755(1)(a). Taken in a light most favorable to the plaintiff, Sutton offered ample evidence.