USCA11 Case: 22-13310 Document: 20-1 Date Filed: 07/28/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13310
Non-Argument Calendar
____________________
ELIMANIEL GONZALEZ,
Plaintiff-Appellant,
versus
WAL-MART STORES, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:21-cv-02077-KKM-JSS
____________________
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2 Opinion of the Court 22-13310
Before ROSENBAUM, JILL PRYOR, and GRANT, Circuit Judges.
PER CURIAM:
Elimaniel Gonzalez claims that Wal-Mart’s negligence
caused his slip and fall. We vacate the district court’s grant of
summary judgment for Wal-Mart because a reasonable jury could
find that the company had notice of the substance that caused the
accident.
I.
Everyone agrees that Elimaniel Gonzalez stepped on some
sort of substance near a Wal-Mart store register, slipped, and fell.
He did not see the substance before he slipped, but afterward said
he saw “a white creamy liquid (similar to the color of the floor)
about the size of a dinner plate.” Footage from Wal-Mart’s
cameras captured the fall and the surrounding area both before and
after the accident.
Gonzalez sued Wal-Mart, and Wal-Mart moved for
summary judgment, arguing that it had no notice of the dangerous
condition (the substance) that caused the fall. Wal-Mart disclaimed
actual notice of the substance because its employees were not
aware of the substance and did not cause it to be on the floor. Nor
did it have constructive notice, Wal-Mart asserted, because there
“is simply no evidence of the length of time the substance was on
the floor.” Wal-Mart asserts that the substance was on the floor, at
most, for twenty-one seconds. That is because shortly before the
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22-13310 Opinion of the Court 3
fall, the footage shows a young child holding an object near the fall
area.
Gonzalez disagreed. He says the liquid dripped from an
overloaded cart right next to the fall area. The footage shows
employees loading the stationary cart with merchandise for over
an hour and a half. About eight minutes before the fall, an
employee moved the cart. For the next eight minutes, a white-ish
smudge appears on the footage (and occasionally disappears) in the
exact spot that Gonzalez later slipped. He claims that this footage
supports his theory that the substance leaked from the cart, and
that—at minimum—a dispute of material fact exists about the
source of the substance.
The district court sided with Wal-Mart. Although it
acknowledged Gonzalez’s claim that the substance leaked from the
cart, it decided that he had identified “no evidence” from which a
reasonable jury could infer that Wal-Mart had notice of the
substance. In evaluating Gonzalez’s shopping cart theory of actual
notice, the court downplayed the footage showing “a white shape,”
suggesting that it could have been “a trick of the lighting or a flaw
in the film.” In ruling against constructive notice, the court
similarly reasoned that the evidence was insufficient to show when
the substance appeared, meaning a jury could not evaluate
whether Wal-Mart should have noticed the hazard. Gonzalez now
appeals.
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4 Opinion of the Court 22-13310
II.
This Court reviews a grant of summary judgment de novo.
Josendis v. Wall to Wall Residence Repairs, Inc.,
662 F.3d 1292, 1314
(11th Cir. 2011). Along the way, we view the evidence and make
all reasonable inferences in the light most favorable to the
nonmoving party, Gonzalez.
Id.
III.
At this stage in the case, Gonzalez’s claim rises and falls with
the answer to one question: could a reasonable jury conclude that
the substance leaked from the shopping cart? If so, then Wal-Mart
could have had actual notice, because it caused the dangerous
condition. See Barbour v. Brinker Fla., Inc.,
801 So. 2d 953, 957 (Fla.
Dist. Ct. App. 2001). And Wal-Mart could have had constructive
notice, because then the dangerous condition could have “existed
for such a length of time” that Wal-Mart “should have known of
the condition.”
Fla. Stat. § 768.0755.
After carefully viewing the video footage, we conclude that
a reasonable jury could decide that the substance leaked from the
shopping cart. To start, the footage shows that the cart was parked
close to the spot of the slip. For the first hour and thirty-six minutes
of the footage, the cart sat adjacent to the floor area where
Gonzalez later slipped.
After the cart was removed, about eight minutes elapsed
before the slip. During this time, a white-ish spot or smudge
appears on the footage. The smudge appears in the exact same spot
that Gonzalez later stepped on when he slipped. That spot on the
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22-13310 Opinion of the Court 5
floor is also the exact same place where the employee later cleaned
up the spill, soaking a paper towel. At times, the smudge
disappears, coinciding most frequently with people passing nearby
or their shadows covering the area. But no other portion of the
footage behaves quite like this smudge. And it is telling that no
smudge appeared before the cart was moved or after the slip and
cleanup—only during the crucial eight minutes before the fall.
A reasonable jury could conclude, based on its location and
persistence, that the smudge on the footage depicted the substance
itself or otherwise evidenced its presence. From that fact, it could
also conclude that the shopping cart was the source of the
substance, meaning that Wal-Mart had notice, actual or
constructive. 1
That said, a reasonable jury could also discount this video
evidence. It is true, as the district court stressed, that several people
seemed to walk near, over, or even through the substance during
the eight-minute period between the cart’s removal and the slip.
And after he had slipped on the substance (presumably altering it
in the process) Gonzalez did not report seeing any dirt, cart marks,
or footprints visible in the liquid as he looked at it while walking
away. All the same, the existence of evidence to counter
Gonzalez’s theory of notice does not change the fact that he has
1 To establish constructive notice, the jury would need to decide not only that
the substance leaked from the cart, but also that it was “foreseeable” or on the
floor “for such a length of time that, in the exercise of ordinary care” Wal-Mart
“should have known of the condition.”
Fla. Stat. § 768.0755(1)(a)–(b).
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6 Opinion of the Court 22-13310
presented sufficient evidence that a reasonable jury could decide
the question in his favor.
IV.
We REVERSE the district court’s grant of summary
judgment for Wal-Mart and REMAND for proceedings consistent
with this opinion.
