Michael Vallot v. Logan's Roadhouse, Inc. , 567 F. App'x 723 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-14818
Non-Argument Calendar
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D.C. Docket No. 6:12-cv-01561-GAP-KRS
MICHAEL VALLOT,
Plaintiff-Appellant,
versus
LOGAN'S ROADHOUSE, INC.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(May 23, 2014)
Before MARCUS, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Michael Vallot, proceeding pro se, appeals the district court’s grant of
summary judgment in favor of Logan’s Roadhouse, Inc. (“Logans”) in Vallot’s slip
and fall action, removed into federal court based on diversity jurisdiction. On
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appeal, Vallot argues that: (1) the court erred in applying retroactively Fla. Stat. §
768.0755, which requires that the defendant had actual or constructive knowledge
of the dangerous condition to be negligent; and (2) Vallot demonstrated a factual
dispute about whether Logans had actual or constructive knowledge of the
presence of a slippery substance on the floor. After careful review, we affirm.
We review a district court’s grant of summary judgment de novo, applying
the same legal standard as the trial court. Watkins v. Ford Motor Co., 190 F.3d
1213, 1216 (11th Cir. 1999). Summary judgment is proper if the evidence, viewed
in the light most favorable to the nonmoving party, presents no genuine dispute as
to any material fact and compels judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986).
Where jurisdiction is founded on diversity and no federal question is
involved, we apply substantive state law, either declared by the state’s legislature
or by its highest court in a decision. Erie Railroad Co. v. Tompkins, 304 U.S. 64,
78 (1938). If the Supreme Court of Florida has not addressed a particular issue,
federal courts are bound by the decisions of the Florida district courts of appeal
that address the disputed issue, unless there is an indication that the supreme court
would not adhere to the district court’s decision. Geary Distributing Co., Inc. v.
All Brand Importers, Inc., 931 F.2d 1431, 1434 (11th Cir. 1991).
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At the time of Vallot’s slip and fall (March 28, 2010), former Fla. Stat. §
768.0710, governed slip and fall cases. Statute 768.0710(2) read:
(2) In any civil action for negligence involving loss, injury, or damage to a
business invitee as a result of a transitory foreign object or substance on
business premises, the claimant shall have the burden of proving that:
(a) The person or entity in possession or control of the business
premises owed a duty to the claimant;
(b) The person or entity in possession or control of the business
premises acted negligently by failing to exercise reasonable care in the
maintenance, inspection, repair, warning, or mode of operation of the
business premises. Actual or constructive notice of the transitory
foreign object or substance is not a required element of proof to this
claim. However, evidence of notice or lack of notice offered by any
party may be considered together with all of the evidence; and
(c) The failure to exercise reasonable care was a legal cause of the
loss, injury, or damage.
Fla. Stat. § 768.0710(2) (repealed 2010) (emphasis added).
However, on July 1, 2010, a new slip and fall statute went into effect, and
repealed Fla. Stat. § 768.0710. The new statute, which the district court relied on,
provides that: “[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.” Fla. Stat. § 768.0755(1) (emphasis added).
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
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ordinary care, the business establishment should have known of the condition; or
(b) the condition occurred with regularity and was therefore foreseeable. Id.
In Kenz v. Miami-Dade County, 116 So. 3d 461, 466 (Fla. Dist. Ct. App.
2013) , the Third District Court of Appeal of Florida, affirming the trial court’s
grant of summary judgment, held that § 768.0755 was procedural in nature and,
thus, applied retroactively. The Third District Court of Appeal noted that, even if §
768.0755 did not operate retroactively and § 768.0710 applied, summary judgment
was appropriate. Id. The record was devoid of any evidence suggesting that the
appellees had any notice, actual or constructive, of the water on the floor. Id.
Accordingly, the appellant failed to demonstrate that the appellees negligently
failed to exercise reasonable care in the maintenance of the premises, and summary
judgment was appropriate on these alternate grounds. Id.
The Third District Court of Appeal also addressed the issue in Delgado v.
Laundromax, Inc., 65 So. 3d 1087 (Fla. Dist. Ct. App. 2011), where the trial court
had determined that the defendant had not breached its duty to the plaintiff as a
business invitee. On appeal, the court noted that § 768.0755 had repealed §
768.0710, but analyzed the events that occurred in 2003 under § 768.0710. In so
doing, the court noted that the elements of negligence were: (1) a duty to the
plaintiff; (2) the defendant’s breach of that duty; (3) injury to the plaintiff arising
from the breach; and (4) damages caused by the injury as a result of the breach of
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duty. Id. at 1089. It also observed that a business owner owes two duties to a
business invitee: (1) to take ordinary and reasonable care to keep its premises
reasonably safe for invitees; and (2) to warn of perils that were known or should
have been known to the owner and of which the invitee could not discover. Id.
The court found that the only evidence that the plaintiff offered was that: (1) the
floor was wet; and (2) she slipped and fell. Id. at 1089-90. That evidence was
insufficient to establish that the defendant had breached its duty of care. Id. at
1090. There was no evidence of how long the water was on the floor or to suggest
that the defendant caused or had notice of the spill. Id. at 1089. The court noted:
“Although actual or constructive notice of water on the floor [was] not a required
element of proof under § 768.0710(2)(b), the statute state[d] that evidence of
notice or lack of notice offered by any party [could] be considered together with all
of the evidence when considering whether the plaintiff [] met his or her burden of
proof.” Id. (quotations and brackets omitted).
However, on February 26, 2014, the Fourth District Court of Appeal of
Florida held that § 768.0755 represented a substantive change in the law, and
accordingly, could not be applied retroactively. Pembroke Lakes Mall Ltd. v.
McGruder, __ So. 3d __, 2014 WL 714706 at *6 (Fla. Dist. Ct. App. Feb. 26,
2014). In affirming the trial court’s decision not to apply § 768.0755 retroactively,
the court certified a conflict with the Third District. Id. at *1, *6.
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Whether § 768.0755 applies retroactively has not yet been resolved by the
Florida Supreme Court. But regardless of whether § 768.0755 applies retroactively
to this case or whether § 768.0710 still applies, the district court did not err in
granting summary judgment. If we assume § 768.0755 applies, Logans has shown
that there is no genuine dispute of fact concerning Logans’s actual or constructive
notice of any slippery substance. As the record shows, Vallot testified in his
deposition that he did not know if he saw a greasy substance, how the substance
came to be on the floor, what caused the substance to be on the floor, whether any
Logans employee knew the substance was on the floor, or who spilled the
substance on the floor. He did not know whether the substance was there one
minute before he fell. An affidavit from the bartender who was working at the
time of the fall attested that he passed through the area frequently and observed the
area less than 30 minutes prior to the fall. He did not observe any liquid, oil,
greasy substance, or peanuts on the floor at that time. After the fall, he helped
Vallot to his feet and did not see any liquid, oil, greasy substance, or peanuts on the
floor. He wiped the floor with a rag in the area where Vallot fell and determined
that there was no liquid, oil, or greasy substance on the floor.
Alternatively, if we assume that § 768.0710 applies, Vallot is nonetheless
required to show evidence of the basic elements of a negligence action, even if §
768.0710 does not require that Vallot show actual or constructive knowledge on
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the part of Logans. Those elements of negligence are: (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. Logans’s duties to Vallot were to take ordinary and
reasonable care to keep its premises reasonably safe and to warn of perils that were
known or should have been known to Logans that Vallot could not discover.
Under § 768.0710, Logans’s lack of notice can be considered when determining
whether Vallot met his burden of proof. Fla. Stat. § 768.0710 (repealed 2010);
Delgado, 65 So. 3d at 1089. A lack of actual or constructive notice concerns the
element of breach of duty. Fla. Stat. § 768.0710(2)(b). Vallot’s evidence
demonstrates only that: (1) the floor was wet; and (2) he slipped and fell. There is
no evidence of how long the slippery substance was on the floor or to suggest that
Logans caused or had notice of the spill. See Delgado, 65 So. 3d at 1089. Just like
in Delgado, this is not enough to establish that Logans breached its duty of care.
Id. at 1090. Because it is undisputed that Logans had neither actual nor
constructive notice, Vallot is unable to prevail as a matter of law on his negligence
action. Id. at 1091.
AFFIRMED.
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