SPEEDWAY LLC v. GLORIA CEVALLOS

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
SPEEDWAY, LLC,
Appellant,
v.
GLORIA CEVALLOS,
Appellee.
No. 4D20-1120
[December 15, 2021]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Lisa S. Small, Judge; L.T. Case No. 50-2016-CA-002299-
XXXX-MB.
Michael K. McCaffrey and Andrew S. Connell, Jr. of Litchfield Cavo LLP,
Fort Lauderdale, for appellant.
Blair M. Fazzio and Berkin Aslan of Kanner & Pintaluga, P.A., Boca
Raton, for appellee.
WARNER, J.
Speedway LLC appeals a final judgment which awarded appellee Gloria
Cevallos substantial damages related to a slip and fall at a Speedway gas
station. It contends that the court erred in denying its motion for directed
verdict, as appellee failed to prove that Speedway had constructive
knowledge of a dangerous condition. Because appellee failed to offer
evidence of a dangerous condition or that any condition existed for a period
of time sufficient to establish constructive notice of it, the trial court erred
in denying the motion for directed verdict. We reverse.
Appellee Cevallos pulled into a gas pump at a Speedway gas station and
went inside the station to pay for the gas. As she was walking back to her
car, another car ahead of her car exited out of the station. In a surveillance
video, the exiting car left behind a puddle of liquid. Cevallos began to
pump her gas. While waiting for the gas to finish, she moved toward the
trash can nearby to throw something away. She took a few steps around
the pump and slipped on a liquid substance of oil and gas left by the car
that had vacated the premises 111 seconds earlier. Cevallos fell to the
ground in pain. She testified that she had not seen the puddle at any time
prior to her accident. Her clothes were soaked with gasoline from her fall.
The fall resulted in multiple fractures and surgery to repair the damage.
Cevallos tried the case on the theory that “buildup” occurred on the
concrete which was caused by inadequate maintenance by Speedway.
Counsel first introduced the term at trial in examining the maintenance
technician. Counsel explained that “buildup” was present when “pristine
poured concrete that’s poured for the first time . . . [is] all a nice uniform
color. And as that concrete is used for whatever purpose, be it a sidewalk,
driveway, gas station, that concrete discolors over time and there’s a
buildup that occurs on that concrete, whether it’s from spills, oil, tires,
things like that.” The maintenance technician testified that the area
around the gas pumps was a “roughly smooth” concrete which was porous
and would absorb liquids. He testified that he was not a concrete expert,
nor was he qualified to determine whether there was buildup on concrete.
According to the maintenance technician, Speedway did not have
employees with the specific responsibility of inspecting floor surfaces but
that all employees were trained to look out for hazards. When a
maintenance tech observes a safety issue, the tech brings it up and
discusses it at a weekly conference call with Speedway technicians and
their supervisors. In one such call, a technician noted that he observed
buildup around a gas pump and that techs should be on the lookout for
it. A supervisor agreed, but no additional protocols were issued to address
the issue.
On cross-examination, the maintenance technician agreed that the
buildup he referred to typically involved diesel fuel and pumps, which were
not the type of gas pumps where Cevallos fell. He testified that he was not
aware of any ongoing gasoline spills at the subject Speedway store during
his five years as the store’s maintenance technician, which encompassed
the date of Cevallos’ accident.
Speedway trained its employees on cleaning, but the station manager
did not remember specific training on concrete maintenance. She did not
receive training specifically on how to clean up buildups, as maintenance
technicians would be responsible for that. Speedway safety protocols
included inspection of the pumps every two hours. Employees were
trained to inspect the outside pump area, including the floor surfaces
during these inspections. The Speedway operations manual specified that
“[l]ot should be checked throughout the day for spills – i.e., oil, motor fuel,
etc. When spills are discovered, proper clean up steps are to be followed.”
It also required the parking lot and sidewalks to be swept daily and for
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employees to report any large cracks or potholes. Upon opening the store,
employees should “[i]nspect the lot; clean up any spills, debris, or litter.”
Under “general safety guidelines” in the manual, employees were directed
to “[c]lean up spills immediately” and to “[u]se oil dry for oil or fuel spills
on the driveway. Immediately clean up sills, breakage or trash.” The
manual did not include anything about “buildup” or how to inspect the
flooring around the gas pumps.
The manager of the station and the district manager both testified that
gasoline spills were not a frequent occurrence at the subject store.
Similarly, the maintenance technician also testified that in the five years
he was assigned to the store, he was not aware of any issues with ongoing
gasoline spills. Usually, such spills were the result of customer error in
pumping gas. The manager also testified that she was unaware of any
buildups around the gas pumps, aside from the diesel pumps, during her
time as manager, and those did not involve the floor surface.
The district manager testified that the area was pressure cleaned
monthly and had been cleaned about three weeks prior to the accident.
The purpose of the pressure cleaning was to make the area more attractive
by removing various stains.
On the date of the incident, the station manager and two other
employees shared all duties for the store, including checking for hazards.
The manager explained that their duties regarding the outside included to
check the gas pumps daily, make sure all areas were clean, sweep the
concrete and dry up any gasoline spills with sand. If gas were to leave a
stain, they would use a multipurpose cleaner she called “Re-Crete.”
A surveillance video showed an employee inspecting the area
approximately thirty minutes before Cevallos’ fall. The employee was
shown walking outside with a broom and dust pan and walking from one
side of the pumps to the other. There was no spill in front of the pump
where Cevallos later fell. The employee’s entire inspection took about two
minutes.
Just after Cevallos’ fall, the general manager inspected the area and
took pictures which were admitted into evidence. The general manager
was asked to review them and testified that she did not see any stains in
the photographs but pointed out that gasoline had been spilled in some of
the photos. The photos consisted of pictures of the area where Cevallos
fell. They showed a floor with multiple brown spots on it. Later, after
reviewing the video, she admitted that the concrete floor showed stains on
it.
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Out of turn, Speedway called an expert witness who testified that there
was no evidence of any “buildup” at the subject store. The expert testified
that the concrete floor surface at the pump at the time of Cevallos’ accident
was “substantially similar” to the floor surface as it existed at the time of
his personal inspection three years later, with the exception of a “puddle
of gasoline.” Based upon his expertise, the floor surface where Cevallos
fell was “slip resistant” and an appropriate surface. Although he agreed
that buildup is possible, he saw no evidence of it in this case, after
reviewing the photos in evidence.
At the close of plaintiff’s case, Speedway moved for a directed verdict,
contending that Cevallos failed to present any evidence that Speedway had
actual or constructive notice of a spill or dangerous condition. The puddle
of gasoline in which Cevallos slipped had only been present for 111
seconds before the accident, and there was no evidence to support
Cevallos’ allegations of actual or constructive knowledge of buildup or that
there was any buildup at all at the time of the fall. Cevallos responded
that she slipped on the gas because of the poorly maintained poured-
concrete that had buildup on it, as demonstrated by the photographs
taken immediately after she fell which allegedly showed a buildup. The
court granted the motion for directed verdict on all issues except
constructive notice. After the court denied the renewed motion for directed
verdict at the close of all the evidence, the case was submitted to the jury.
The jury returned a verdict for Cevallos, and the court entered judgment
on the verdict. Speedway then filed an appeal.
The standard of review of an order denying a motion for directed verdict
is de novo. Hollywood Med. Ctr., Inc. v. Alfred, 82 So. 3d 122, 125 (Fla.
4th DCA 2012) (citations omitted). “A trial court should grant a motion for
directed verdict when the evidence, viewed in the light most favorable to
the non-moving party, shows that a jury could not reasonably differ about
the existence of a material fact and the movant is entitled to judgment as
a matter of law.” Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So. 3d
247, 250 (Fla. 4th DCA 2009) (citation omitted). “When an appellate court
reviews the grant of a directed verdict, it must view the evidence and all
inferences of fact in a light most favorable to the nonmoving party, and
can affirm a directed verdict only where no proper view of the evidence
could sustain a verdict in favor of the nonmoving party.” Id. (quoting Frenz
Enters., Inc. v. Port Everglades, 746 So. 2d 498, 502 (Fla. 4th DCA 1999)).
Section 768.0755, Florida Statutes (2016), governs liability in premises
cases involving transitory foreign substances in a business establishment,
and provides:
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(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, Fla. Stat. (2016). The statute places the burden on the
plaintiff to prove actual or constructive knowledge by the premises owner
of the dangerous condition.
As indicated in section 768.0755, constructive notice may be inferred
from either: (1) the amount of time a substance has been on the floor; or
(2) the fact that the condition occurred with such frequency that the owner
should have known of its existence. In the latter category, “evidence of
recurring or ongoing problems that could have resulted from operational
negligence or negligent maintenance becomes relevant to the issue of
foreseeability of a dangerous condition.” Owens v. Publix Supermarkets,
Inc., 802 So. 2d 315, 320 (Fla. 2001) (citations omitted).
Constructive knowledge in this case was not proved by the amount of
time the substance had been on the floor, because the puddle was only on
the concrete surface for 111 seconds before Cevallos fell. See Walker v.
Winn-Dixie Stores, Inc., 160 So. 3d 909, 912 (Fla. 1st DCA 2014) (water on
floor for four minutes prior to fall “was insufficient to satisfy the statute’s
requirement that the alleged dangerous condition must exist ‘for such a
length of time that, in the exercise of ordinary care, the business
establishment should have known of the condition’ before constructive
knowledge of the condition can be imputed”).
Instead, Cevallos tried to establish that the condition of buildup
occurred with regularity and was foreseeable. Of course, that theory
requires that she prove that buildup actually occurred at the time and
location of her fall and that it contributed to her fall. She never proved
that foundational fact. The manager testified that she saw no buildup,
and the expert testified that he saw no evidence of buildup when
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considering the photos of the concrete taken on the date of the fall. None
of the witnesses testified that buildup was a problem, other than around
diesel pumps. In arguing against a directed verdict, Cevallos’ counsel
relied solely on the photos of the concrete to establish the existence of
buildup. The photos showed discoloration of the concrete, or brown spots.
The photos did not reveal whether those spots were oil or dirt accumulated
on the concrete surface, or, as the district manager testified, simply stains
on the concrete. In other words, there was nothing to establish that there
was buildup which would create a slippery condition on the concrete. The
photos could show simple discoloration rather than buildup, as the fact
witnesses testified.
Where photos are ambiguous, as the ones here, as to the condition and
duration of the condition revealed, they do not support an inference of
constructive notice. In Hannewacker v. City of Jacksonville Beach, 419 So.
2d 308, 311–12 (Fla. 1982), the court discussed the evidentiary value of
photographs to support constructive notice of a dangerous condition:
If the photograph portrays a condition that has some
distinguishing feature which clearly shows that the defect has
existed for a long period of time, it may afford the jury a basis
to infer that a significant period of time has passed. If the
photograph is ambiguous on this point and what is shown
makes it questionable whether a significant period has
passed, the jury would necessarily be required to indulge
in speculation to determine the duration of the condition.
In such a case the photograph without live testimony is
insufficient. This is no different than if a witness testifies to
the condition of a defect at the time of an accident and there
are no distinguishing features or other testimony to indicate
its duration. In such instance the trial judge is entitled to
direct a verdict on the question of constructive notice.
Id. (footnote omitted) (emphasis added). In this case, what was shown in
the photograph not only required speculation as to how long the condition
existed, but it also required speculation on the part of the jury as to the
very existence of the condition of buildup itself.
Even if the photographs did show buildup, Cevallos’ theory of the case
needed the jury to infer that Speedway failed to adequately train its
employees on concrete maintenance and to maintain policies to protect its
outdoor premises from “buildup.” Based on this inference, it sought the
jury to infer that Speedway allowed such buildup to occur, and that
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buildup did occur, which resulted in Cevallos fall. Thus, she sought to
build an inference upon an inference.
In negligence cases involving circumstantial evidence, “a fact may be
established by circumstantial evidence as effectively and as conclusively
as it may be proved by direct positive evidence.” Stanley v. Marceaux, 991
So. 2d 938, 940 (Fla. 4th DCA 2008) (quoting Nielsen v. City of Sarasota,
117 So. 2d 731, 733 (Fla. 1960)). However, this rule is subject to the
following limitation: “if a party to a civil action depends upon the inferences
to be drawn from circumstantial evidence as proof of one fact, it cannot
construct a further inference upon the initial inference in order to
establish a further fact unless it can be found that the original, basic
inference was established to the exclusion of all other reasonable
inferences.” Id. (quoting Nielsen, 117 So. 2d at 733).
“Where an inference is based upon circumstantial evidence in a civil
case, it must be the only reasonable inference that can be formed from
that evidence for the plaintiff to build further inferences upon it.” Broward
Exec. Builders, Inc. v. Zota, 192 So. 3d 534, 537 (Fla. 4th DCA 2016)
(citation omitted). “The rule that an inference may not be stacked on
another inference is designed to protect litigants from verdicts based upon
conjecture and speculation.” Stanley, 991 So. 2d at 940.
An example of this rule in action is found in Tallahassee Medical Center,
Inc. v. Kemp, 324 So. 3d 14 (Fla. 1st DCA 2021), reh’g denied (Aug. 24,
2021). There, a hospital visitor sued a medical center for serious injuries
she sustained in a slip and fall that occurred while she was walking past
the nurses’ station. Plaintiff alleged the center’s negligence caused her
injury because the floor was wet. Evidence established that no one saw a
wet substance that plaintiff blamed for her fall. Plaintiff relied on the way
she fell and the fact that her clothes were wet after the fall to establish
that a liquid substance was on the floor. Id. at 15–16.
In reversing the denial of a directed verdict, the First District noted that
the jury would have had to rely on improperly stacked inferences to find
the medical center negligent. The court explained:
This is not an instance where the main inference
underlying the plaintiff’s case—that plaintiff slipped on an
employee-caused wet spot—can be established to the
exclusion of other reasonable inferences. Indeed, it is just as
plausible and reasonable to infer that no liquid was on the
floor and that the wetness [plaintiff] perceived came from her
own flip-flops and clothes after walking into the hospital out
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of a rainstorm. Nor can additional inferences, that are
questionable in their own right, be rightfully stacked here;
speculations such as: that the bags, trays, and cart shown
on the video contained liquids; that liquids leaked, spilled, or
seeped onto the floor from one of these items due to employee
negligence; and that hospital employees failed to wipe up the
liquid on the floor in the busy hallway before [plaintiff] slipped,
even though they were trained to look for and immediately
wipe up liquids found on the floor. In fact, there is no evidence
here that the bags, carts, and trays from the video carried any
liquids. Nor is there evidence, even if the bags had carried wet
stuff, that they leaked, seeped through, or otherwise deposited
wet stuff on the floor. Nor does the evidence show that any of
the carts or trays were mishandled and spilled liquids onto
the floor. In fact, no substance was seen on the floor before
[plaintiff’s] fall.
Id. at 17.
Similarly, in this case, Cevallos invited the jury to infer that Speedway
deliberately refrained from implementing a single policy regarding
maintenance of the concrete at the fuel pumps and guidance to its store
manager, and then asked the jury to stack upon that inference, the further
inference that the lack of a policy resulted in unreasonably slippery
concrete due to “buildup.”
Although the evidence indicates that Speedway had no express policy
or training specific to “concrete” or “buildups,” the evidence indicated that
it had training and policies for maintenance of the outside in general. The
evidence showed that Speedway had training, operation manuals, and
safety checklists. It also established that the concrete had been pressure
cleaned seventeen days before the accident. Thus, although one could
infer that Speedway refrained from properly training or maintaining its lot,
one could also infer that Speedway’s training and policies demonstrated
an adequate operation of its maintenance responsibilities.
Whether the initial inference is that Cevallos slipped on buildup or
whether Speedway did not have training policies for cleaning buildup off
the concrete, neither was established to the exclusion of all other
reasonable inferences. The jury was left to speculate as to the existence
of the condition and Speedway’s constructive knowledge. Because of this,
the court erred in denying the motion for directed verdict.
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Section 768.0755 requires the plaintiff to prove the premises owner’s
constructive knowledge of a dangerous condition which causes a slip and
fall on a transitory substance. Cevallos’ failure to prove the elements of
the statute require reversal of the final judgment and entry of judgment
for Speedway.
Reversed and remanded for vacation of final judgment and entry of new
final judgment.
GERBER and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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