CASE LAW UPDATE

SECOND DCA REVERSES SUMMARY JUDGMENT FOR PLASMA DONATION CENTER IN SLIP AND FALL, FINDING A GENUINE ISSUE OF MATERIAL FACT AS TO DEFENDANTS’ CONSTRUCTIVE KNOWLEDGE OF A DANGEROS CONDITION

Kimberly A. Salmon, Partner – St. Petersburg Office

In Michael R. Normal v. DCI Biologicals Dunedin, LLC, and BPL Plasma, Inc., (collectively the Plasma Defendants), the Second District Court of Appeal reversed the trial court’s order granting summary judgment for the Plasma Defendants, finding that the evidence created a genuine issue of material fact as to the Defendant’s constructive knowledge of a dangerous condition.

Plaintiff, Michael Norman, appealed the final summary judgment entered against him in his negligence suit for injuries he sustained when he fell in the bathroom of a plasma-donation center.  He lost consciousness, had an abrasion above his eye, a contusion below, and a fractured orbital bone.  He testified that after he fell, he saw water on the floor and a couple of dirty footprints.  He also noticed another area that looked like someone slid their foot. According to the deposition testimony of employees, each night, non-employee janitors would clean the lobby and bathrooms.  According to the Plasma Center manager, the receptionist would also check on the bathrooms during the day and clean them.  During her deposition, the receptionist denied being told that she was responsible for the bathroom.  None of the employees recalled inspecting the bathroom that day.

The Plasma defendant’s moved for summary judgment, arguing that Norman’s testimony was insufficient as a matter of law to avoid summary judgment.  Norman argued that his testimony, together with the employees’ testimony, created an issue of fact as to the defendants’ constructive knowledge of the dangerous condition.

Prior to the enactment of section 768.0710, Florida Statutes (2002), once a slip and fall plaintiff established that the fall resulted from a transitory foreign substance, a rebuttable presumption of negligence arose. See Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 331 (Fla. 2001).

Section 768.0710(2) eliminated that rebuttable presumption and required the plaintiff to prove the following:

 (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.

In 2010, the Legislature enacted section 768.0755, which required a slip-and-fall plaintiff to prove that the defendant had actual or constructive knowledge of the foreign substance. See Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 424 (Fla. 4th DCA 2014).

Norman argued that in light of the evidence there was a genuine issue of material fact whether the Plasma Center should have known about the water.  In cases involving a transitory substance, courts have found constructive notice established by evidence similar to Norman’s.  For instance, when water comes from a clean source, and there is dirt, or mud, or tracks running through it, there is circumstantial evidence that something or someone traversed through it.  See, e.g., Zayre Corp. v. Bryant, 528 So. 2d 516, 516 (Fla. 3d DCA 1988) (finding that the facts that there were “ ‘black darkened’ grocery cart tire tracks running through” the substance, which “was otherwise ‘relatively clear’ but ‘slimy,’ ” and that the store had not inspected the aisle for four hours “constituted adequate circumstantial evidence upon which a jury could have reasonably imputed constructive notice of the hazardous condition to the defendant”).  The judgment was reversed and the case was remanded for further proceedings.