Tammy Berard v. Target Corporation , 559 F. App'x 977 ( 2014 )

Case: 13-14793 Date Filed: 04/04/2014 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-14793
Non-Argument Calendar
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D.C. Docket No. 8:12-cv-02599-JSM-AEP
TAMMY BERARD,
Plaintiff-Appellant,
versus
TARGET CORPORATION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 4, 2014)
Before TJOFLAT, JORDAN, and EDMONDSON, Circuit Judges.
Case: 13-14793 Date Filed: 04/04/2014 Page: 2 of 4
PER CURIAM:
Tammy Berard appeals the district court’s grant of summary judgment in
favor of Defendant Target Corporation on her claim for negligence. While
shopping at one of Target’s stores, Berard slipped on a liquid substance on the
floor. Although Berard did not fall, she suffered personal injuries as a result of the
incident. No reversible error has been shown; we affirm.
We review the district court’s grant of summary judgment de novo, and we
view the evidence and all reasonable factual inferences in the light most favorable
to the nonmoving party. Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir.
2007). “Summary judgment is appropriate if the evidence establishes ‘no genuine
issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.’” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243
(11th Cir. 2003).
Under Florida law, a person who “slips and falls on a transitory foreign
substance in a business establishment, . . . must prove that the business
establishment had actual or constructive knowledge of the dangerous condition and
should have taken action to remedy it.” Fla. Stat. § 768.0755(1).
Berard does not argue -- and nothing evidences -- either that Target caused
the spill or had actual knowledge of the spill. Thus, to establish Target’s liability
under the statute, Berard must show that Target had constructive knowledge of the
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spill. “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.” Id.Berard testified that the liquid substance on the floor appeared to be water.
The liquid was “clean,” “clear,” and not “dirty.” The area around the spill was
“clean and dry” and, although the spill was in a high traffic area of the store,
Berard saw no footprints, cart tracks, or other marks through the spill. Both
Berard’s daughter-in-law (who was with Berard at the time of the incident) and
Target’s store manager described the spill as “appear[ing] to be fresh.”
Viewing this evidence in the light most favorable to Berard, she has not
shown that the spill existed for such a length of time that Target should have
known about it. See Wal-Mart Stores, Inc. v. King, 592 So. 2d 705, 706-07 (Fla.
Ct. App. 1991) (reversing a jury verdict in favor of a slip-and-fall plaintiff when
the spilled substance displayed no “obvious signs of age, such as skid marks,
smudges, dirt or the like” and nothing evidenced how or when the substance got on
the floor). Berard has also presented no evidence that spills occur with such
regularity that the dangerous condition was foreseeable to Target.
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We reject Berard’s contention that this case is analogous to the Southern
District of Florida’s decision in Linares v. The Home Depot, U.S.A., Inc., No. 12-
60308-CIV-MARRA/BRANNON, 2013 U.S. Dist. LEXIS 47506 (S.D. Fla. 2013).
Although the district court in Linares considered -- as a factor -- that the store did
not assign a specific employee to inspect the floors for debris, the court focused on
evidence that the store caused the dangerous condition and that the dangerous
condition was regularly occurring and, thus, foreseeable. These factors are not
present here.
Berard’s argument that Target should be held liable under a theory of
negligent mode of operation * is foreclosed by her testimony that she was a regular
shopper at Target’s store, that the store always appeared to be clean and well-
maintained, and that Target had done nothing wrong to contribute to the incident.
See Delgado v. Laundromax, Inc., 65 So. 3d 1087, 1091 (Fla. Ct. App. 2011)
(noting that plaintiff’s testimony that the facility was “always clean” foreclosed a
theory of negligent operation). Berard has provided no evidence that her injuries
resulted from a mode of operation employed negligently by Target.
No genuine issue of material fact exists. Summary judgment was proper.
AFFIRMED.
*
“[T]he negligent mode of operation theory merely recognizes the common-sense proposition of
negligence law that the duty of care required under the circumstances may consist of taking
reasonable precautions so as to minimize or eliminate the likelihood of a dangerous condition
arising in the first instance.” Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256, 260
(Fla. 2002).
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