Fifth DCA
Welch v. CHLN, Inc.
5th DCA
3/17/23, Judge Jay
Topics: Negligence/Breach of Duty, Summary Judgment Standard
CHLN owns a restaurant in Melbourne, Florida. Ms. Welch visited the restaurant for dinner in 2017, and she alleges that she slipped and fell on a puddle of liquid near the salad bar. She described the liquid as a large amount of liquid that was dirty, murky, and slimy. She alleges that she observed wet footprints that were not hers leading in different directions (as if the puddle had been present for a long time).
Welch sued CHLN for negligence. During a deposition, the restaurant manager testified that on a busy night like the night of the accident, two separate employees would have been assigned to the salad bar, and part of their duties would have been to keep the floor clean.
CHLN moved for summary judgment, arguing that there was no evidence that CHLN knew about the liquid on the floor. The trial court granted the motion, holding that there was no evidence of actual knowledge and “insufficient evidence” of constructive knowledge.
Elements of negligence are duty, breach of duty, causation, and damages. In slip-and-fall cases at a business, to prove breach of duty, a plaintiff has to also satisfy section 768.0755, Fla. Stat., which states:
- (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.
§ 768.0755(1), Fla. Stat. (2017).
Plaintiff’s testimony that the liquid was dirty, etc, helped her case, but it is not enough by itself to create a jury instruction because some liquids have these features before being spilled, so a plaintiff must show that it is the kind of liquid that would only become this way over time. The best fact in Plaintiff’s case, however, was the testimony that she saw wet footprints leading in different directions. Putting that together with the testimony that the liquid was dirty or slimy, that is sufficient to create a jury question about whether the liquid was there long enough to constitute constructive knowledge. Reversed and remanded for further proceedings. https://supremecourt.flcourts.gov/content/download/863596/opinion/220357_DC13_03172023_ 084843_i.pdf
Terry P. Roberts
Terry@YourChampions.com
Director of Appellate Practice Fischer Redavid PLLC
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