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Filing # 127060053 E-Filed 05/18/2021 04:38:41 PM
IN THE CIRCUIT COURT OF THE
17™ JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA
CASE NO: CACE 19-021319
Lueretta Smith, individually,
Plaintiff,
VS.
Winn-Dixie Stores, Inc., a Florida corporation,
Defendant.
/
PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S
MOTION FOR SUMMARY FINAL JUDGMENT AND WINN DIXIE’S SUPPLEMENTAL
MEMORANDUM OF LAW IN SUPPROT
Plaintiff, Lauretta Smith, through undersigned counsel, for her Memorandum of Law in
Opposition to Defendant, Winn-Dixie Stores, Inc.’s Motion for Summary Final Judgment and
Supplemental Memorandum of Law in Support of Defendant’s Motion for Final Summary
Judgment, states:
BRIEF STATEMENT OF FACTS
On September 30, 2016, Plaintiff was walking in the produce department of Winn-Dixie, when
she slipped and fell on some grapes. Defendant produced an incident video. Defendant did not set
forth nor produce any evidence of routine inspections, walk-throughs, maintenance logs, checklists
and the like. There is simply no evidence before this court of when the last inspection was
performed prior to Ms. Smith’s unfortunate fall.
THE LAW IN GENERAL
Plaintiff was a customer in Defendant’s store when she slipped and fell in front of a grape
stand in the produce department due to grapes on the floor. Defendant’s summary judgment motion
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 05/18/2021 04:38:40 PM.****in this premises liability case should be considered with special caution in negligence cases. Holl v
Talcott, 191 So, 2d 40 (Fla. 1966). All reasonable inferences must be drawn in Plaintiff's favor.
Winn-Dixie Stores, Inc. v Benton, 576 So. 2d 359 (Fla. 4 DCA 1991).
In Florida, business owners owe two duties to invitees: 1) to take ordinary care to keep
premises reasonably safe; and 2) to warn of perils known, or that should have been known, of
which the invitee could not discover. Constructive notice may be inferred from either: 1) the
amount of time the substance was on floor; or 2) the condition occurred with such frequency.
Delgado v Laundromax, Inc., 65 So. 3d 1087 (Fla. 3d DCA 2011).
Defendant’s Motion for Summary Final Judgment deals with lack of constructive
knowledge on the part of Defendant. Plaintiff was shopping in Defendant’s store in the produce
department on September 30, 2016. Upon returning a bag of grapes to the produce department, Ms.
Smith slipped and fell in front of the grape stand. As a business invitee, Defendant owed Ms. Smith
a duty to exercise reasonable care to maintain their premises in a reasonably safe condition.
The case is dependent on §768.0755, Fla. Stat., which states, in pertinent part:
768.0755 Premises liability for transitory foreign substance
in a business establishment.
(1) Ifa 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.
THE NEW SUMMARY JUDGMET STANDARD DOES NOT APPLY
Effective May 1, 2021, Rule 1.510, Fla. R. Civ. P. was amended to apply the language of
Rule 56, Fed. R. Civ. P., giving time for all movants of summary judgment in Florida to amendpending Motions in order to comply with the new rule’s language on the standard of proof in
summary judgments in Florida. The new rule is not, as Defendant states in both its Motion for
Summary Final Judgment, as well as its Supplemental Memo of Law in Support, whether there is
no “genuine issue of material fact”, but rather should be that of the new Rule 1.510 for summary
judgment, that there is “no genuine dispute as to any material fact”. Yet, Defendant has chosen to
rely on the old summary judgment rule in both its Motion and Supplemental Memorandum,
referring to the old summary judgment’s Rule’s standard of no genuine issue of material fact at
least five times, in its opening statements, as well as its conclusions, and in between.
Therefore, in cases, such as this, where a pending summary judgment motion has been
briefed, but not decided, the Florida supreme court allowed the parties a reasonable opportunity
to amend their filings to comply with the new rule. Defendant has chosen not to amend to
express the new Rule. The Court is limited by the old rule 1.510. Defendant’s onus is to
demonstrate the absence of any genuine issue of material fact, as opposed to the new standard of
demonstrating the absence of any material dispute of material fact. Jn re: Amendment to Fla.
Rule of Civ. Procedure 1.510, 2021 Fla. LEXIS 682 2021 WL 1684095 (Fla. 2021).
CIRCUMSTANTIAL EVIDENCE SHOWS NO INSPECTION IN AREA WHERE
PLAINTIFF FELL FOR 28 MINUTES SHOWS CONSTRUCTIVE KNOWLEDGGE
AND IS A ON F
Plaintiff relies on direct evidence to show Defendant did not inspect the area of the fall for a
period of at least twenty-eight minutes. In the video produced by Defendant of the fall, as well
as in response to Third Request for Admissions (both filed under separate cover), Defendant
admits to not being in that aisle at all for twenty-eight minutes immediately preceding the fall.
Plaintiff fell at 19:25:43 as depicted on the Defendant’s incident video. However, Defendant
both admits, and the video shows, no employee of Defendant in the no employee of Defendantwalks in the fall area from 18:57 to 19:25. See Video and Defendants Responses to Third
Request for Admissions, number 6.
The slip and fall rule in Florida is that if a dangerous condition exists on a floor in an
area open to the public, the owner or occupant of the property will not be held liable for ensuing
injuries if the record fails to show how the condition was created, the length of time the condition
existed before the accident and whether the store was responsible for the condition. There is an
exception where the danger existed for a sufficient length of time to charge defendant with
constructive knowledge. Proof that a dangerous condition existed long enough so that it should
have been discovered by Defendant may be proven by circumstantial evidence. Winn-Dixie
Stores, Ind. V Williams, 264 So. 2d 862 (Fla. 3d DCA 1972). In Williams, the store manager had
inspected the area fifteen to twenty minutes prior and found no hazards. When Plaintiff slipped
on a sticky, dusty, dirty substance on an aisle in the store, the court found constructive
knowledge.
Our Florida Supreme Court held in Montgomery v Florida Jitney Jungle Stores, Inc.,
281 So. 2d 302 (Fla 1973) a fiftee- minute period of time was sufficient to charge constructive
knowledge. See also, Jenkins v Brackin, 171 So. 2d 589 (Fla. 2"! DCA 1965) (fifteen or twenty
minutes near vegetable bin, summary judgment for Defendant reversed where slip on green
bean).
In Little v Publix Supermarkets Inc., 234 So. 2d 132 (Fla. 4° DCA 1970) our Fourth
District Court of Appeals held fifteen to twenty minutes was a reasonable inference that could be
deemed sufficient to charge constructive knowledge to Defendant but that the “matters were for
the jury to determine”. Jd at 134.Obviously, some frequency of inspections is necessary, but how often? The time frame
cannot be a fixed time and will vary depending on the type of business. For instance, a college
campus outdoors area would not require as frequent of inspections as a grocery store produce
section, where it is foreseeable to have produce fall to the ground. McCarthy v Broward
College, 164 So.2d 78 (Fla. 4"* DCA 2015).
This is especially the case where, as here, the produce is wrapped in bags with tiny holes
in it, as opposed to more of a water-tight enclosure. See Deposition transcript of Plaintiff filed
by Defendant 10/20/2020, page 62, lines 7— 22. This possibility of grapes breaking through,
plus the description of smooshed grapes precludes summary judgment in favor of Defendant
here. See, Washington v Pic-N-Pac Supermarket, Inc., 453 So. 2d 508 (Fla. 4% DCA 1984) (slip
on “old nasty collard greens where collard greens wrapped in saran to allow breakthrough
droppings in cart, directed verdict for defendant reversed).
Likewise, in Teate v Winn-Dixie Stores, Inc., 524 So. 2d 1060 (Fla. 3d DCA 1988), a
directed verdict for defendant was reversed as evidence showed no cleaning in the fall area for
fifteen to twenty minutes prior, amidst a frozen pea bag surrounded by water. The Court said
that it could be seconds if defendant’s “permafrost” argument was believed, or longer, if
Plaintiff’s contention of thawing was found. In any event, the Court held it was the jury’s
province to consider, not the Court’s (finding no inference stacking). See also, Lynch v Target
Stores, 790 So. 2d 1193 (Fla. 4% DCA 2001) (plaintiff and daughter within view of fall area for
fifteen minutes, seeing no one enter or exit area is reasonable inference to show constructive
knowledge); and Ress v X-Tra Super Food Ctrs., Inc., 616 So. 2d 110 (Fla. 4" DCA 1993) (dirty,
gunky, black, wet sauerkraut, resulted in reversal of Defendant summary judgment; evidence
showed substance present at least five minutes and the color inferred more time).Thus, where, as here, a period of twenty-eight minutes elapsed during which no employee
of Defendant is in the aisle adjacent to the grape stand, as shown on the incident video as well as
in Defendant’s response to Third Request for Admission, both filed under separate cover,
circumstantial evidence of length of time is a jury question.
Plaintiff has direct evidence (the store incident video) showing no employee inspecting the
area for a period of approximately twenty-eight minutes. See Defendant’s Responses to Third
Request for Admission, number 6, filed in opposition to Defendant’s Motion, under separate
cover. In addition, Plaintiff intends to show this Honorable Court the incident video, produced
by Defendant, and agreed to be shared with the Court at the hearing on Defendant’s Motion for
Summary Judgment by Defense Counsel. The video will show that no one on the part of
Defendant traversed the area of Plaintiff's fall for a period of at least twenty-eight minutes.
A view of the caselaw on point shows clearly that each case is determined on its particular
set of facts, and are fact-intensive, one of the important reasons Courts are loath to grant
summary judgment in negligence cases and should not do so here.
NO IMPERMISSABLE STACKING OF INFERENCES
Plaintiff need not stack inferences to show the length of time within which no inspections
were made by Winn-Dixie in the produce department because there is a scene video that Plaintiff
filed separately in opposition, to show the Court that at least twenty-eight minutes lapsed during
which no employee is seen near the grape section to afford the Defendant the ability to have
discovered the grapes on the floor. This is direct evidence and no inference is necessary. That
coupled with the lack of evidence of set sweep schedules and inspections, plus the brown color
of said grapes, show that the grapes were there for a sufficient amount of time to impute
constructive knowledge.In Norman v DCI Biologicals Dundedin, LLC, 301 So. 3d 425 (Fla. 2"! DCA 2020), a
summary judgment in favor of Defendant property owner was reversed finding no impermissible
stacking of inferences as the trial court had so found where there were no schedules of
inspection, and the plaintiff's unsubstantiated testimony of muddy footprints and a skid mark in
liquid near a bathroom sink where Plaintiff fell, created a material issue of fact because there was
no need to infer the liquid was anything but clear water when it hit the floor. There was no need
to infer that the water was dirty from being there for some length of time because it would have
come from the sink as clear, requiring no inference. Therefore, the length of time which would
be inferred was not impermissible stacking. Here we have green grapes turned brown. Evidence
establishes the green grapes were not brown to start. See Plaintiff deposition transcript filed by
Defendant, page 65, lines 14-25. See also, Mashni v Lasalle Partners Mgmt., Ltd., 842 So. 2d
1035, 1037 (Fla. 4"* DCA 2003) (holding circumstantial evidence of dirty water near sink and
lack of inspection evidence resulted in constructive knowledge - not affected by 768.0755 (2010)
because Court applied pre Owens cases).
Thus there being only one inference to be drawn from the circumstantial evidence, that
being constructive knowledge, there is no impermissible stacking as Defendant attempts to
demonstrate.
MISSING PHOTOS TAKEN BY MANAGER CREATES ADVERSE INFERENCE
Christine Norton, the manager on duty, took photographs of the area of the fall, but they
have since gone missing. An adverse inference should be drawn against Defendant for losing the
photographs. It is presumed that the evidence destroyed or lost would have been unfavorable to
Winn-Dixie. Martine v Wal-Mart Stores, 835 So. 2d 1251 (Fla. 4" DCA 2003). See, Depositiontranscript of Plaintiff, page 68, lines 1-10; Defendant’s Privilege Log showing no photographs, and
only a video was produced that does not show the floor post fall.
DEFENDANT’S CASES ARE DISTINGUISHABLE
Defendant cites to numerous cases that are clearly distinguishable, both for the constructive
knowledge inference, as well as for alleged improper stacking. Plaintiff will briefly distinguish
these cases for the Court as they are numerous and not on point in this case.
DEFENDANT’S CONSTRUCTIVE KNOWLEDGE CASES
Winn-Dixie Stores v Mazzie, 707 So. 2d 927 (Fla. 5" DCA 1998), cited by Defendant as a
case where facts were undisputed, is clearly distinguishable. There was neither actual nor
constructive knowledge present. The Plaintiff ‘s testimony was only that she did not know what
a nearby deli employee was doing near the area of her fall. Plaintiff thought he was either
cleaning or restocking because the male employee was close to the floor. Plaintiff's attempt to
create an inference of constructive knowledge of seeing the employee on the floor, doing an
unknown task, five minutes prior to her fall, to impute a dangerous condition arising during that
five-minute lapse, was an unknown fact to the Plaintiff. Since Plaintiff was not in the area
during that five- minute interval, traffic or activities near the fall area were completely unknown.
In our case, twenty-eight minutes elapse before the fall in which no employee is present.
Plaintiff is not relying on any employee causing the grapes to be dropped, just in their being
undetected and present, causing her fall.
Defendant cites to Martinez v Letica Corp., 617 So. 2d 453 (Fla. 3d DCA 1993) for the same
proposition, that no material facts were in dispute and summary judgment was proper, however,
the case is devoid of facts, other than summary judgment being granted to a defendant. It cannot
be considered as authority.Defendant cites to Broz v Winn-Dixie Stores, Inc., 546 So. 2d 83 (Fla. 3d DCA 1989) for the
proposition that without evidence to indicate an indicia of constructive notice, a jury should not
decide. However, Broz is clearly distinguishable. In that case, Defendant moved for summary
judgment as there was no evidence of how long a grape was on the floor. Defense offered
evidence of the floor being routinely inspected by the floor manager with thirty employees in
store on alert to debris on the floor. There was no indication of how long the grape was there,
i.e. thawing, cart tracks, footprints, or other indicia of constructive notice. Defendant’s motion
for summary judgment was affirmed. As noted, Defendant has not presented maintenance sweep
or inspection records, cleaning procedures or any evidence to show what inspections were
performed, save for rank hearsay of what a manager and employee did or did not do. See
paragraph 6 of Defendant’s Motion for Summary Final Judgment.
Defendant, in paragraph 6 of its Motion, attempts so provide hearsay evidence that the
manager on duty and the produce associate testified they were unaware of the floor’s condition
and some other rank hearsay. If there was admissible proof of routine inspections and anyone
being nearby the scene at or near the time of the fall, I would think Defendant would have
provided it. There is no procedures manual in evidence to show routine inspections, no logs, no
maintenance or sweep records, nothing except for Plaintiff's testimony.
Another lack of constructive knowledge case cited by Defendant is Winn-Dixie Stores, Inc. v
Marcotte, 553 So. 2d 213 (Fla. 5 DCA 1989). In that case there was no evidence that defendant
caused a slippery substance of a supermarket, neither was there any evidence that Defendant had
actual knowledge. Circumstantial evidence of constructive knowledge and/or inferences were
not at issue nor discussed. There simply was a lack of direct evidence.Defendant is alleging Plaintiff will be unable to produce evidence of Defendant’s constructive
notice of the grapes, citing to Delgado v Laundromax, Inc., 65 So. 3d 1087 (Fla. 3d DCA 2011).
This case was prior to the new transitory substance statute and relied on §768.0710, Fla. Stat. In
Delgado, the only evidence was that the floor was wet and Plaintiff slipped, therefore the 3"
DCA affirmed summary judgment for Defendant property owner. Plaintiff didn’t know where
the water she slipped on came from, nor did she see water, other than where she fell. There was
no evidence of rain or other things nearby (i.e. sinks washers) that would explain where this clear
standing water came from. Here, in contrast, we know where the grapes came from, the nearby
stand! If Defendant wishes to blame Plaintiff for the grapes falling instead, the issue of
comparative negligence would be one for the jury. Mullis v. Miami, 60 So. 2d 174 (Fla.
1952),
INFERENCE STACKING CASES
Defendant’s cases cited for impermissible stacking of inferences can also be
distinguished. Defendant relies on Wilson-Greene v. City of Miami, 208 So. 3d 1271 (Fla. 3d
DCA 2017) to claim that Plaintiff is impermissibly stacking inferences to arrive at constructive
notice because no one knew where the substance came from. Plaintiff slipped on “pea soup” in
front of an elevator in a commercial building that housed a restaurant somewhere in the building.
Plaintiff had no evidence of pea soup being sold that day in the restaurant but attested that the
soup was not hot, implying it was on the floor for a sufficient length of time for the soup to cool.
Therefore, Plaintiff had to infer the soup was hot when it was spilled. Plaintiff saw green on her
feet , shoes, legs and upper body. Since no evidence was introduced that the soup was hot when
spilled, it would amount to an impermissible stacking, that the soup was hot prior to its spill, and
that it was not hot on falling, thereby another inference would be to show the time to cool. By its
10very nature, the grape is a known item and needs no inference because there is no need to infer
there were smashed grapes on the floor and that they originated in a green color. See, Plaintiff's
deposition transcript filed by Defendant, page 65, lines 14-25. That is the evidence and no
inference is needed other than the time in which it lay there. Summary judgment for defendant
was properly affirmed.
Defendant also cites Encarnacion v Lifemark Hosps of Fla._211 So. 3d 275 (Fla. 3d DCA
2017) to show defendant’s summary judgment is appropriate here due to a lack of constructive
notice of the grapes. Lifemark took place in an emergency room hallway and the appellate court
affirmed summary judgment in favor of the hospital. Plaintiff had seen an EMS male with a
spray bottle near where she fell. Plaintiff “guessed” it was the spray liquid she slipped on due to
its proximity to her fall and because it smelled like a cleaning product, such as “Pine-Sol”. It
was undisputed that the EMS paramedic was not an employee of the Defendant. Belated
testimony of the Plaintiff was that the substance was “oily, dirty, and dark”. The Court correctly
held that even if all that was true, the case was still insufficient to create a jury question. The
Court held that one inference was that whatever was spilled didn’t start out looking “oily, dark
and dirty”. Therefore attempting to infer length of time from that description was improper.
Winn Dixie Stores v White, 675 So.2d 702 (Fla. 4" DCA 1996) is a case where there was
no evidence of a transitory substance. Plaintiff fell and saw a man with a buffer nearby, but no
one saw him buffing the exact area, the floor being described as shiny and dry. Plaintiff could
not point to what caused her to fall. Evidence of a witness was that the floor was not slippery. A
manager testified that buffing did not leave the floor wet or slippery. There simply was nothing
observed on the floor. When a directed verdict was denied, the court held that an inference can’t
llbe speculative. That is not the case here. There is no opposition that the floor was devoid of
grapes.
Defendants reliance on Celco Convention Services v. Pettengill, 710 So. 2d 581 (Fla. 4"
DCA 1998) is inapposite to Plaintiff's case at bar. In Pettengill, Plaintiff had no knowledge of
what caused a convention partition to fall and neither could Plaintiff’s expert. Here, we know
it was grapes on the ground that caused the fall found adjacent to the grape stand. No one is
contesting the grapes were there.
Cooper Hotel Servs v MacFarland, 662 So.2d 710 (Fla. 2"! DCA 1995) is just another
example of a slip/fall in a hotel bathtub where the Plaintiff could point to no evidence of what
caused the tub’s slippery surface. Plaintiff agrees that negligence cannot be inferred from an
accident itself. See also, Publix Super Markets, Inc.. v Schmidt, 509 So. 2d 977, 978 (Fla. 4
DCA 1987) (Plaintiff acknowledged no proof of actual or constructive knowledge; gravy slip
near deli cannot assume unknown dripped it when unknown employee raised a tray over a
counter to pass it to an unknown).
Lastly, Defendant relies on Delgado v Laundromax, Inc., 65 So. 3d 1087 (Fla. 3d DCA
2011) (no place or reason where water came from on floor and had to conclude water due to
transparency).
CONCLUSION
Plaintiff is entitled to have this case go to a jury, no matter what standard is applied.
However, since the Defendant chose to not amend its Motion for Summary Judgment to state the
new standard of Rule 1.510, Fla. R. Civ. P., effective May 1, 2021, and chooses to apply the “no
genuine issue of material fact”, Plaintiff has met her burden. The case should go to a jury
because twenty-eight minutes of no inspection from the video produced, is circumstantial
12evidence that gives rise to an inference of constructive knowledge on the part of Defendant.
There is no stacking. The time element is the only inference. Taken with a complete absence of
scheduled maintenance or when this floor was ever inspected, the “missing” scene photographs,
as well as the green grapes turned brown, all point to enough evidence to go to a jury. Therefore,
respectfully, Defendant’s Motion for Summary Final Judgment must be denied.
WHEREFORE, Plaintiff prays for the Court’s denial of Defendant’s Motion for
Summary Final Judgment, and any other relief that the Court deems just and proper.
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished via email to Paul J. Gamm, Esq., at
pgamm@hinshawlaw.com and kcardenas@hinshawlaw.com on May 18, 2021.
The Law Offices of Justin G. Morgan, P.A.
2500 Weston Road, Suite 211
Weston, Florida 33331
Tel: (954) 217-1016
Fax: (954) 217-1019
leadings@justginmorganlaw.com
/s/Susan Guller
SUSAN GULLER, ESQ.
FBN: 385859
13
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Filing # 127060053 E-Filed 05/18/2021 04:38:41 PM IN THE CIRCUIT COURT OF THE 17™ JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO: CACE 19-021319 Lueretta Smith, individually, Plaintiff, VS. Winn-Dixie Stores, Inc., a Florida corporation, Defendant. / PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY FINAL JUDGMENT AND WINN DIXIE’S SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPROT Plaintiff, Lauretta Smith, through undersigned counsel, for her Memorandum of Law in Opposition to Defendant, Winn-Dixie Stores, Inc.’s Motion for Summary Final Judgment and Supplemental Memorandum of Law in Support of Defendant’s Motion for Final Summary Judgment, states: BRIEF STATEMENT OF FACTS On September 30, 2016, Plaintiff was walking in the produce department of Winn-Dixie, when she slipped and fell on some grapes. Defendant produced an incident video. Defendant did not set forth nor produce any evidence of routine inspections, walk-throughs, maintenance logs, checklists and the like. There is simply no evidence before this court of when the last inspection was performed prior to Ms. Smith’s unfortunate fall. THE LAW IN GENERAL Plaintiff was a customer in Defendant’s store when she slipped and fell in front of a grape stand in the produce department due to grapes on the floor. Defendant’s summary judgment motion *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 05/18/2021 04:38:40 PM.****in this premises liability case should be considered with special caution in negligence cases. Holl v Talcott, 191 So, 2d 40 (Fla. 1966). All reasonable inferences must be drawn in Plaintiff's favor. Winn-Dixie Stores, Inc. v Benton, 576 So. 2d 359 (Fla. 4 DCA 1991). In Florida, business owners owe two duties to invitees: 1) to take ordinary care to keep premises reasonably safe; and 2) to warn of perils known, or that should have been known, of which the invitee could not discover. Constructive notice may be inferred from either: 1) the amount of time the substance was on floor; or 2) the condition occurred with such frequency. Delgado v Laundromax, Inc., 65 So. 3d 1087 (Fla. 3d DCA 2011). Defendant’s Motion for Summary Final Judgment deals with lack of constructive knowledge on the part of Defendant. Plaintiff was shopping in Defendant’s store in the produce department on September 30, 2016. Upon returning a bag of grapes to the produce department, Ms. Smith slipped and fell in front of the grape stand. As a business invitee, Defendant owed Ms. Smith a duty to exercise reasonable care to maintain their premises in a reasonably safe condition. The case is dependent on §768.0755, Fla. Stat., which states, in pertinent part: 768.0755 Premises liability for transitory foreign substance in a business establishment. (1) Ifa 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. THE NEW SUMMARY JUDGMET STANDARD DOES NOT APPLY Effective May 1, 2021, Rule 1.510, Fla. R. Civ. P. was amended to apply the language of Rule 56, Fed. R. Civ. P., giving time for all movants of summary judgment in Florida to amendpending Motions in order to comply with the new rule’s language on the standard of proof in summary judgments in Florida. The new rule is not, as Defendant states in both its Motion for Summary Final Judgment, as well as its Supplemental Memo of Law in Support, whether there is no “genuine issue of material fact”, but rather should be that of the new Rule 1.510 for summary judgment, that there is “no genuine dispute as to any material fact”. Yet, Defendant has chosen to rely on the old summary judgment rule in both its Motion and Supplemental Memorandum, referring to the old summary judgment’s Rule’s standard of no genuine issue of material fact at least five times, in its opening statements, as well as its conclusions, and in between. Therefore, in cases, such as this, where a pending summary judgment motion has been briefed, but not decided, the Florida supreme court allowed the parties a reasonable opportunity to amend their filings to comply with the new rule. Defendant has chosen not to amend to express the new Rule. The Court is limited by the old rule 1.510. Defendant’s onus is to demonstrate the absence of any genuine issue of material fact, as opposed to the new standard of demonstrating the absence of any material dispute of material fact. Jn re: Amendment to Fla. Rule of Civ. Procedure 1.510, 2021 Fla. LEXIS 682 2021 WL 1684095 (Fla. 2021). CIRCUMSTANTIAL EVIDENCE SHOWS NO INSPECTION IN AREA WHERE PLAINTIFF FELL FOR 28 MINUTES SHOWS CONSTRUCTIVE KNOWLEDGGE AND IS A ON F Plaintiff relies on direct evidence to show Defendant did not inspect the area of the fall for a period of at least twenty-eight minutes. In the video produced by Defendant of the fall, as well as in response to Third Request for Admissions (both filed under separate cover), Defendant admits to not being in that aisle at all for twenty-eight minutes immediately preceding the fall. Plaintiff fell at 19:25:43 as depicted on the Defendant’s incident video. However, Defendant both admits, and the video shows, no employee of Defendant in the no employee of Defendantwalks in the fall area from 18:57 to 19:25. See Video and Defendants Responses to Third Request for Admissions, number 6. The slip and fall rule in Florida is that if a dangerous condition exists on a floor in an area open to the public, the owner or occupant of the property will not be held liable for ensuing injuries if the record fails to show how the condition was created, the length of time the condition existed before the accident and whether the store was responsible for the condition. There is an exception where the danger existed for a sufficient length of time to charge defendant with constructive knowledge. Proof that a dangerous condition existed long enough so that it should have been discovered by Defendant may be proven by circumstantial evidence. Winn-Dixie Stores, Ind. V Williams, 264 So. 2d 862 (Fla. 3d DCA 1972). In Williams, the store manager had inspected the area fifteen to twenty minutes prior and found no hazards. When Plaintiff slipped on a sticky, dusty, dirty substance on an aisle in the store, the court found constructive knowledge. Our Florida Supreme Court held in Montgomery v Florida Jitney Jungle Stores, Inc., 281 So. 2d 302 (Fla 1973) a fiftee- minute period of time was sufficient to charge constructive knowledge. See also, Jenkins v Brackin, 171 So. 2d 589 (Fla. 2"! DCA 1965) (fifteen or twenty minutes near vegetable bin, summary judgment for Defendant reversed where slip on green bean). In Little v Publix Supermarkets Inc., 234 So. 2d 132 (Fla. 4° DCA 1970) our Fourth District Court of Appeals held fifteen to twenty minutes was a reasonable inference that could be deemed sufficient to charge constructive knowledge to Defendant but that the “matters were for the jury to determine”. Jd at 134.Obviously, some frequency of inspections is necessary, but how often? The time frame cannot be a fixed time and will vary depending on the type of business. For instance, a college campus outdoors area would not require as frequent of inspections as a grocery store produce section, where it is foreseeable to have produce fall to the ground. McCarthy v Broward College, 164 So.2d 78 (Fla. 4"* DCA 2015). This is especially the case where, as here, the produce is wrapped in bags with tiny holes in it, as opposed to more of a water-tight enclosure. See Deposition transcript of Plaintiff filed by Defendant 10/20/2020, page 62, lines 7— 22. This possibility of grapes breaking through, plus the description of smooshed grapes precludes summary judgment in favor of Defendant here. See, Washington v Pic-N-Pac Supermarket, Inc., 453 So. 2d 508 (Fla. 4% DCA 1984) (slip on “old nasty collard greens where collard greens wrapped in saran to allow breakthrough droppings in cart, directed verdict for defendant reversed). Likewise, in Teate v Winn-Dixie Stores, Inc., 524 So. 2d 1060 (Fla. 3d DCA 1988), a directed verdict for defendant was reversed as evidence showed no cleaning in the fall area for fifteen to twenty minutes prior, amidst a frozen pea bag surrounded by water. The Court said that it could be seconds if defendant’s “permafrost” argument was believed, or longer, if Plaintiff’s contention of thawing was found. In any event, the Court held it was the jury’s province to consider, not the Court’s (finding no inference stacking). See also, Lynch v Target Stores, 790 So. 2d 1193 (Fla. 4% DCA 2001) (plaintiff and daughter within view of fall area for fifteen minutes, seeing no one enter or exit area is reasonable inference to show constructive knowledge); and Ress v X-Tra Super Food Ctrs., Inc., 616 So. 2d 110 (Fla. 4" DCA 1993) (dirty, gunky, black, wet sauerkraut, resulted in reversal of Defendant summary judgment; evidence showed substance present at least five minutes and the color inferred more time).Thus, where, as here, a period of twenty-eight minutes elapsed during which no employee of Defendant is in the aisle adjacent to the grape stand, as shown on the incident video as well as in Defendant’s response to Third Request for Admission, both filed under separate cover, circumstantial evidence of length of time is a jury question. Plaintiff has direct evidence (the store incident video) showing no employee inspecting the area for a period of approximately twenty-eight minutes. See Defendant’s Responses to Third Request for Admission, number 6, filed in opposition to Defendant’s Motion, under separate cover. In addition, Plaintiff intends to show this Honorable Court the incident video, produced by Defendant, and agreed to be shared with the Court at the hearing on Defendant’s Motion for Summary Judgment by Defense Counsel. The video will show that no one on the part of Defendant traversed the area of Plaintiff's fall for a period of at least twenty-eight minutes. A view of the caselaw on point shows clearly that each case is determined on its particular set of facts, and are fact-intensive, one of the important reasons Courts are loath to grant summary judgment in negligence cases and should not do so here. NO IMPERMISSABLE STACKING OF INFERENCES Plaintiff need not stack inferences to show the length of time within which no inspections were made by Winn-Dixie in the produce department because there is a scene video that Plaintiff filed separately in opposition, to show the Court that at least twenty-eight minutes lapsed during which no employee is seen near the grape section to afford the Defendant the ability to have discovered the grapes on the floor. This is direct evidence and no inference is necessary. That coupled with the lack of evidence of set sweep schedules and inspections, plus the brown color of said grapes, show that the grapes were there for a sufficient amount of time to impute constructive knowledge.In Norman v DCI Biologicals Dundedin, LLC, 301 So. 3d 425 (Fla. 2"! DCA 2020), a summary judgment in favor of Defendant property owner was reversed finding no impermissible stacking of inferences as the trial court had so found where there were no schedules of inspection, and the plaintiff's unsubstantiated testimony of muddy footprints and a skid mark in liquid near a bathroom sink where Plaintiff fell, created a material issue of fact because there was no need to infer the liquid was anything but clear water when it hit the floor. There was no need to infer that the water was dirty from being there for some length of time because it would have come from the sink as clear, requiring no inference. Therefore, the length of time which would be inferred was not impermissible stacking. Here we have green grapes turned brown. Evidence establishes the green grapes were not brown to start. See Plaintiff deposition transcript filed by Defendant, page 65, lines 14-25. See also, Mashni v Lasalle Partners Mgmt., Ltd., 842 So. 2d 1035, 1037 (Fla. 4"* DCA 2003) (holding circumstantial evidence of dirty water near sink and lack of inspection evidence resulted in constructive knowledge - not affected by 768.0755 (2010) because Court applied pre Owens cases). Thus there being only one inference to be drawn from the circumstantial evidence, that being constructive knowledge, there is no impermissible stacking as Defendant attempts to demonstrate. MISSING PHOTOS TAKEN BY MANAGER CREATES ADVERSE INFERENCE Christine Norton, the manager on duty, took photographs of the area of the fall, but they have since gone missing. An adverse inference should be drawn against Defendant for losing the photographs. It is presumed that the evidence destroyed or lost would have been unfavorable to Winn-Dixie. Martine v Wal-Mart Stores, 835 So. 2d 1251 (Fla. 4" DCA 2003). See, Depositiontranscript of Plaintiff, page 68, lines 1-10; Defendant’s Privilege Log showing no photographs, and only a video was produced that does not show the floor post fall. DEFENDANT’S CASES ARE DISTINGUISHABLE Defendant cites to numerous cases that are clearly distinguishable, both for the constructive knowledge inference, as well as for alleged improper stacking. Plaintiff will briefly distinguish these cases for the Court as they are numerous and not on point in this case. DEFENDANT’S CONSTRUCTIVE KNOWLEDGE CASES Winn-Dixie Stores v Mazzie, 707 So. 2d 927 (Fla. 5" DCA 1998), cited by Defendant as a case where facts were undisputed, is clearly distinguishable. There was neither actual nor constructive knowledge present. The Plaintiff ‘s testimony was only that she did not know what a nearby deli employee was doing near the area of her fall. Plaintiff thought he was either cleaning or restocking because the male employee was close to the floor. Plaintiff's attempt to create an inference of constructive knowledge of seeing the employee on the floor, doing an unknown task, five minutes prior to her fall, to impute a dangerous condition arising during that five-minute lapse, was an unknown fact to the Plaintiff. Since Plaintiff was not in the area during that five- minute interval, traffic or activities near the fall area were completely unknown. In our case, twenty-eight minutes elapse before the fall in which no employee is present. Plaintiff is not relying on any employee causing the grapes to be dropped, just in their being undetected and present, causing her fall. Defendant cites to Martinez v Letica Corp., 617 So. 2d 453 (Fla. 3d DCA 1993) for the same proposition, that no material facts were in dispute and summary judgment was proper, however, the case is devoid of facts, other than summary judgment being granted to a defendant. It cannot be considered as authority.Defendant cites to Broz v Winn-Dixie Stores, Inc., 546 So. 2d 83 (Fla. 3d DCA 1989) for the proposition that without evidence to indicate an indicia of constructive notice, a jury should not decide. However, Broz is clearly distinguishable. In that case, Defendant moved for summary judgment as there was no evidence of how long a grape was on the floor. Defense offered evidence of the floor being routinely inspected by the floor manager with thirty employees in store on alert to debris on the floor. There was no indication of how long the grape was there, i.e. thawing, cart tracks, footprints, or other indicia of constructive notice. Defendant’s motion for summary judgment was affirmed. As noted, Defendant has not presented maintenance sweep or inspection records, cleaning procedures or any evidence to show what inspections were performed, save for rank hearsay of what a manager and employee did or did not do. See paragraph 6 of Defendant’s Motion for Summary Final Judgment. Defendant, in paragraph 6 of its Motion, attempts so provide hearsay evidence that the manager on duty and the produce associate testified they were unaware of the floor’s condition and some other rank hearsay. If there was admissible proof of routine inspections and anyone being nearby the scene at or near the time of the fall, I would think Defendant would have provided it. There is no procedures manual in evidence to show routine inspections, no logs, no maintenance or sweep records, nothing except for Plaintiff's testimony. Another lack of constructive knowledge case cited by Defendant is Winn-Dixie Stores, Inc. v Marcotte, 553 So. 2d 213 (Fla. 5 DCA 1989). In that case there was no evidence that defendant caused a slippery substance of a supermarket, neither was there any evidence that Defendant had actual knowledge. Circumstantial evidence of constructive knowledge and/or inferences were not at issue nor discussed. There simply was a lack of direct evidence.Defendant is alleging Plaintiff will be unable to produce evidence of Defendant’s constructive notice of the grapes, citing to Delgado v Laundromax, Inc., 65 So. 3d 1087 (Fla. 3d DCA 2011). This case was prior to the new transitory substance statute and relied on §768.0710, Fla. Stat. In Delgado, the only evidence was that the floor was wet and Plaintiff slipped, therefore the 3" DCA affirmed summary judgment for Defendant property owner. Plaintiff didn’t know where the water she slipped on came from, nor did she see water, other than where she fell. There was no evidence of rain or other things nearby (i.e. sinks washers) that would explain where this clear standing water came from. Here, in contrast, we know where the grapes came from, the nearby stand! If Defendant wishes to blame Plaintiff for the grapes falling instead, the issue of comparative negligence would be one for the jury. Mullis v. Miami, 60 So. 2d 174 (Fla. 1952), INFERENCE STACKING CASES Defendant’s cases cited for impermissible stacking of inferences can also be distinguished. Defendant relies on Wilson-Greene v. City of Miami, 208 So. 3d 1271 (Fla. 3d DCA 2017) to claim that Plaintiff is impermissibly stacking inferences to arrive at constructive notice because no one knew where the substance came from. Plaintiff slipped on “pea soup” in front of an elevator in a commercial building that housed a restaurant somewhere in the building. Plaintiff had no evidence of pea soup being sold that day in the restaurant but attested that the soup was not hot, implying it was on the floor for a sufficient length of time for the soup to cool. Therefore, Plaintiff had to infer the soup was hot when it was spilled. Plaintiff saw green on her feet , shoes, legs and upper body. Since no evidence was introduced that the soup was hot when spilled, it would amount to an impermissible stacking, that the soup was hot prior to its spill, and that it was not hot on falling, thereby another inference would be to show the time to cool. By its 10very nature, the grape is a known item and needs no inference because there is no need to infer there were smashed grapes on the floor and that they originated in a green color. See, Plaintiff's deposition transcript filed by Defendant, page 65, lines 14-25. That is the evidence and no inference is needed other than the time in which it lay there. Summary judgment for defendant was properly affirmed. Defendant also cites Encarnacion v Lifemark Hosps of Fla._211 So. 3d 275 (Fla. 3d DCA 2017) to show defendant’s summary judgment is appropriate here due to a lack of constructive notice of the grapes. Lifemark took place in an emergency room hallway and the appellate court affirmed summary judgment in favor of the hospital. Plaintiff had seen an EMS male with a spray bottle near where she fell. Plaintiff “guessed” it was the spray liquid she slipped on due to its proximity to her fall and because it smelled like a cleaning product, such as “Pine-Sol”. It was undisputed that the EMS paramedic was not an employee of the Defendant. Belated testimony of the Plaintiff was that the substance was “oily, dirty, and dark”. The Court correctly held that even if all that was true, the case was still insufficient to create a jury question. The Court held that one inference was that whatever was spilled didn’t start out looking “oily, dark and dirty”. Therefore attempting to infer length of time from that description was improper. Winn Dixie Stores v White, 675 So.2d 702 (Fla. 4" DCA 1996) is a case where there was no evidence of a transitory substance. Plaintiff fell and saw a man with a buffer nearby, but no one saw him buffing the exact area, the floor being described as shiny and dry. Plaintiff could not point to what caused her to fall. Evidence of a witness was that the floor was not slippery. A manager testified that buffing did not leave the floor wet or slippery. There simply was nothing observed on the floor. When a directed verdict was denied, the court held that an inference can’t llbe speculative. That is not the case here. There is no opposition that the floor was devoid of grapes. Defendants reliance on Celco Convention Services v. Pettengill, 710 So. 2d 581 (Fla. 4" DCA 1998) is inapposite to Plaintiff's case at bar. In Pettengill, Plaintiff had no knowledge of what caused a convention partition to fall and neither could Plaintiff’s expert. Here, we know it was grapes on the ground that caused the fall found adjacent to the grape stand. No one is contesting the grapes were there. Cooper Hotel Servs v MacFarland, 662 So.2d 710 (Fla. 2"! DCA 1995) is just another example of a slip/fall in a hotel bathtub where the Plaintiff could point to no evidence of what caused the tub’s slippery surface. Plaintiff agrees that negligence cannot be inferred from an accident itself. See also, Publix Super Markets, Inc.. v Schmidt, 509 So. 2d 977, 978 (Fla. 4 DCA 1987) (Plaintiff acknowledged no proof of actual or constructive knowledge; gravy slip near deli cannot assume unknown dripped it when unknown employee raised a tray over a counter to pass it to an unknown). Lastly, Defendant relies on Delgado v Laundromax, Inc., 65 So. 3d 1087 (Fla. 3d DCA 2011) (no place or reason where water came from on floor and had to conclude water due to transparency). CONCLUSION Plaintiff is entitled to have this case go to a jury, no matter what standard is applied. However, since the Defendant chose to not amend its Motion for Summary Judgment to state the new standard of Rule 1.510, Fla. R. Civ. P., effective May 1, 2021, and chooses to apply the “no genuine issue of material fact”, Plaintiff has met her burden. The case should go to a jury because twenty-eight minutes of no inspection from the video produced, is circumstantial 12evidence that gives rise to an inference of constructive knowledge on the part of Defendant. There is no stacking. The time element is the only inference. Taken with a complete absence of scheduled maintenance or when this floor was ever inspected, the “missing” scene photographs, as well as the green grapes turned brown, all point to enough evidence to go to a jury. Therefore, respectfully, Defendant’s Motion for Summary Final Judgment must be denied. WHEREFORE, Plaintiff prays for the Court’s denial of Defendant’s Motion for Summary Final Judgment, and any other relief that the Court deems just and proper. CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished via email to Paul J. Gamm, Esq., at pgamm@hinshawlaw.com and kcardenas@hinshawlaw.com on May 18, 2021. The Law Offices of Justin G. Morgan, P.A. 2500 Weston Road, Suite 211 Weston, Florida 33331 Tel: (954) 217-1016 Fax: (954) 217-1019 leadings@justginmorganlaw.com /s/Susan Guller SUSAN GULLER, ESQ. FBN: 385859 13