Lago v. Costco Wholesale Corp.

Third District Court of Appeal
State of Florida
Opinion filed December 13, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-1899
Lower Tribunal No. 15-12095
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Blanca Lago,
Appellant,
vs.
Costco Wholesale Corporation,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Thomas J.
Rebull, Judge.
Kula & Associates, Elliot B. Kula, W. Aaron Daniel, and William D.
Mueller, for appellant.
Kelley Kronenberg, Harold S. Stevens, and Jason E. Handin (Fort
Lauderdale), for appellee.
Before ROTHENBERG, C.J., and SCALES and LUCK, JJ.
LUCK, J.
Blanca Lago slipped on a liquid substance and fell and broke her knee as she
was walking into a Costco Wholesale Corporation store in Miami. The fall
resulted in Lago’s lawsuit against Costco for negligent maintenance of its property.
Lago appeals the trial court’s order granting summary judgment in favor of Costco,
and we affirm because there was no genuine dispute of material fact about
Costco’s knowledge of the liquid substance on its entranceway floor.
Factual Background and Procedural History
On March 7, 2015, Lago’s neighbor invited Lago to accompany her to
Costco at 13450 Southwest 120th Street, in Miami. Lago had never been to Costco
before. When they arrived, the neighbor went to get a shopping cart and Lago
started to walk towards the entrance. As she walked, Lago felt her right leg go out
from under her and she fell on her left knee.1 Lago screamed in pain and a crowd
surrounded her. A Costco employee helped Lago up and sat her near the entrance
until an ambulance came to take her to the hospital.
Lago sued Costco for the injuries she suffered from the fall. Lago alleged
that she fell on a slippery liquid substance, and it was Costco’s duty as a business
owner to make sure there was nothing on its floor that could cause invitees like
Lago to hurt themselves.
1 This part of the opinion comes from Lago’s deposition. Lago gave a different
account in her complaint, where she alleged that she slipped and fell as she was
walking back from the Costco gas station.
2
Costco moved for summary judgment because there was no genuine issue of
material fact about the company’s actual or constructive knowledge of the slippery
liquid substance. The trial court granted Costco’s motion, and entered summary
judgment in favor of the company. This appeal followed.
Standard of Review
Our standard in reviewing the trial court’s summary judgment
order is de novo. In evaluating the trial court’s order, we must
determine if the record evidence presented to the trial court shows
there is no genuine dispute regarding the material facts. We view the
facts in the light most favorable to . . . the non-moving party below.
Delgado v. Laundromax, Inc., 65 So. 3d 1087, 1088 (Fla. 3d DCA 2011) (citations
omitted).
Discussion
Lago contends the trial court erred by: (1) entering an unelaborated order;
and (2) granting summary judgment for Costco on the notice issue based solely on
Lago’s deposition. As to Lago’s first contention, we have said that “[w]hile it
might be desirable for the trial judge to specify his reasons for granting or denying
a summary judgment there does not appear to be any rule or decision that requires
him to do so.” Newman v. Shore, 206 So. 2d 279, 280 (Fla. 3d DCA 1968); see
also Reid v. Associated Eng’g of Osceola, Inc., 295 So. 2d 125, 127 (Fla. 4th DCA
1974) (“The summary judgment does not contain any statement as to the basis
upon which the court determined that the defendants were entitled to judgment as a
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matter of law. There is no requirement that such be done, and we are not critical of
its omission. We merely note in passing that if trial courts followed the practice of
setting forth the basis of their holding in granting summary judgments (when such
was not otherwise clearly evident from the record), it would facilitate appellate
review.”). Here, even if the order didn’t say so, the reason for granting summary
judgment was clear from Costco’s motion, Lago’s response, and the transcribed
summary judgment hearing.
As to Lago’s second contention, Costco, as the defendant moving for
summary judgment, had to show there was no genuine issue of material fact on one
or more of the elements of Lago’s negligence claim: (a) Costco owed a duty to
Lago; (b) it breached that duty; (c) there was a causal connection between Costco’s
breach and Lago’s knee injury; and (d) Lago suffered damages as a result of the
breach. See Wilson-Greene v. City of Miami, 208 So. 3d 1271, 1274 (Fla. 3d
DCA 2017) (“A negligence claim has four elements: (1) a duty by defendant to
conform to a certain standard of conduct; (2) a breach by defendant of that duty;
(3) a causal connection between the breach and injury to plaintiff; and (4) loss or
damage to plaintiff.”); Delgado, 65 So. 3d at 1089 (“The elements of negligence
are: (1) a duty to the plaintiff; (2) the defendant’s breach of that duty; (3) injury to
the plaintiff arising from the defendant’s breach; and (4) damage caused by the
injury to the plaintiff as a result of the defendant’s breach of duty.”). Normally,
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the duties owed by a business to one of its invitees are: “(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 of which the
invitee could not discover.” Delgado, 65 So. 3d at 1089.
But in Florida Statutes section 768.0755 the legislature modified a
business’s duties when its invitees are injured by “transitory foreign substances.”2
See Walker v. Winn-Dixie Stores, Inc., 160 So. 3d 909, 911 (Fla. 1st DCA 2014)
(“In 2010 the Florida legislature enacted Section 768.0755, Florida Statutes, the
clear intent of which is to re-position the burden of proof in constructive
knowledge negligence actions fully onto a plaintiff.” (quotation omitted)); see also
Encarnacion v. Lifemark Hosps. of Fla., 211 So. 3d 275, 278 (Fla. 3d DCA 2017)
(“[W]here a business invitee slips and falls on a ‘transitory substance’ in a business
establishment . . . proof of the breach element of the claim against an owner of the
establishment is statutorily constrained . . . .”). Section 768.0755 provides:
(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
2 A “transitory foreign substance” refers “generally to any liquid or solid
substance, item or object located where it does not belong.” Owens v. Publix
Supermarkets, Inc., 802 So. 2d 315, 317 n.1 (Fla. 2001).
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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. (2015). In moving for summary judgment, Costco had to
show there was no genuine dispute about its actual or constructive knowledge of
the slippery liquid substance on the entranceway floor.
Under similar facts, we have affirmed summary judgment for business
establishments in slip-and-fall cases. In Delgado, decided before the effective date
of section 768.0755, the plaintiff testified
she did not: (1) know where the water came from; (2) see water
anywhere else other than where she slipped; (3) know how long the
water was on the floor before she slipped; or (4) know of anyone at
Laundromax who knew the water was on the floor before she walked
in. Further, there is no evidence in the record that it was raining or that
it had recently rained . . . .
Delgado, 65 So. 3d at 1090. In other words, the court said, the “only evidence”
was “(1) that the floor was wet; and (2) [the plaintiff] slipped and fell.” Id. From
this, the court agreed with the trial court that the business defendant was not
negligent. Id. Without more evidence, “the mere presence of water on the floor
was not enough to establish constructive notice.” Id.Also, in Encarnacion, we described the summary judgment evidence, which
consisted of the plaintiff’s deposition testimony and answers to interrogatories, this
way:
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there is no evidence in the record suggesting the existence of the
foreign substance on the floor was known to the hospital. In the
absence of evidence of actual knowledge, it was incumbent on the
plaintiff to come forward with circumstantial evidence that Palmetto
General Hospital, in the exercise of ordinary caution, should have
known of the condition. In this case, however, the answers to
interrogatories and depositions do not establish how long the
substance had been on the floor.
Encarnacion, 211 So. 3d at 278. The plaintiff’s testimony did present additional
facts that “the substance on the floor was ‘oily,’ ‘dirty’, and ‘dark,’” but even that
was “insufficient to create a jury issue.” Id.; see also McCarthy v. Broward
College, 164 So. 3d 78, 81 (Fla. 4th DCA 2015) (affirming summary judgment for
the business establishment because the plaintiff “was unable to identify the liquid
in the elevator, determine how long it had been there, or establish if anyone at
Broward College had actual or constructive notice of its presence”).
Here, too, there was no dispute about Costco’s actual or constructive notice
of the liquid.3 As to actual notice, Lago testified she did not see any Costco
employee around the liquid or by the entrance before or when she fell. As to
constructive notice, Lago’s testimony was almost identical to the Delgado plaintiff.
3 Lago offered an unauthenticated expert report from another case and a print out
from a weather website as counter-evidence, but the trial court properly struck
these items as hearsay that could not be considered as summary judgment evidence
under Rule 1.510. See First Union Nat’l Bk. of Fla. v. Ruiz, 785 So. 2d 589, 591
(Fla. 5th DCA 2001) (“[M]erely attaching an unsworn document . . . to a motion
for summary judgment does not, without more, satisfy the procedural strictures
inherent in Florida Rule of Civil Procedure 1.510(e).”). Lago has not appealed this
part of the trial court’s summary judgment decision.
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Lago testified that it was not raining (the slip and fall happened under an overhang
in front of the Costco entrance), she did not see the liquid on the floor before she
fell, she didn’t know what the liquid was (other than that it was wet), and she
didn’t know how long it had been there. Lago saw no one else slip in the same
busy entranceway before and after her fall.
As in Delgado and Encarnacion, the undisputed summary judgment
evidence was that the floor was wet and Lago slipped and fell. Without additional
facts suggesting the liquid had been there for a long period of time or this
happened regularly, the trial court properly granted summary judgment in favor of
Costco. We affirm.
Affirmed.
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