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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14329
Non-Argument Calendar
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D.C. Docket No. 1:18-cv-20708-FAM
EVELYN PALAVICINI,
Plaintiff - Appellant,
versus
WAL-MART STORES EAST, LP.,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 12, 2019)
Before WILSON, MARTIN, and NEWSOM, Circuit Judges.
PER CURIAM:
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The Petition for Rehearing filed by Evelyn Palavicini is GRANTED. As a
result, the May 29, 2019 opinion issued in this case is vacated and the following
opinion is substituted in its stead.
Evelyn Palavicini slipped and fell on liquid on the floor of a Wal-Mart store.
Palavicini did not know how or when the liquid got on the floor, but alleged that an
unidentified female employee told her that the air conditioning vent above the
incident area had been leaking for one week prior to the incident. Palavicini sued
Wal-Mart Stores East, L.P. in Florida state court, alleging that Wal-Mart
negligently (1) failed to maintain its property in a reasonably safe manner, and (2)
failed to warn her of the dangerous condition posed by the liquid on the floor.
Wal-Mart removed the case to federal court.
The district court granted summary judgment in favor of Wal-Mart, holding
that Palavicini failed to provide sufficient evidence to support a reasonable
inference that Wal-Mart had constructive notice of the liquid on the floor.
Palavicini appealed. After careful review, we affirm.
I. Factual and Procedural Background
Closed circuit television (CCTV) footage shows the store’s assistant
manager, Jorge Mastrapa, walking and standing in the immediate area where
Palavicini slipped and fell approximately two minutes before the incident.
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After falling, Palavicini observed the liquid on the floor to be “yellow” and
“dirty.” Palavicini testified that she did not see any liquid before falling. She also
does not know how the liquid got on the floor, the length of time it was on the
floor, or whether any Wal-Mart employee knew of the liquid on the floor prior to
the incident. Palavicini claims she was told by an unidentified female employee
that an air conditioning vent on the ceiling had been leaking for one week prior to
the incident. She testified, however, that she did not remember seeing the ceiling
leak.
Palavicini’s complaint alleges that Wal-Mart was negligent in (1) failing to
maintain its property in a reasonably safe manner, and (2) failing to warn her of the
dangerous condition posed by the water on the floor.
Wal-Mart’s motion for summary judgment argues that there is no record
evidence that it had actual or constructive notice of the liquid on the floor or a leak
from the ceiling. Wal-Mart asserts that the record is devoid of any evidence
regarding (1) the length of time the liquid was present on the floor prior to the
incident, and (2) any similar slip and fall incidents involving liquid on the floor or
a leak from the ceiling.
The magistrate judge issued a Report and Recommendation (R&R) to grant
Wal-Mart’s motion for summary judgment, reasoning that Palavicini provided
insufficient evidence to support a reasonable inference that Wal-Mart had
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constructive notice of the liquid on the floor. Specifically, Palavicini adduced
insufficient evidence to establish that (1) the liquid was present for sufficient
period of time to put Wal-Mart on notice of its existence and to allow it the
opportunity to remedy the condition, and (2) the dangerous condition occurred
with such regularity that it was foreseeable. The district court adopted the
magistrate judge’s R&R and granted Wal-Mart’s motion for summary judgment.
II. Discussion
Palavicini contends that the district court erred in granting summary
judgment because the record evidence establishes a genuine issue of material fact
regarding whether Wal-Mart had actual or constructive notice of the dangerous
condition posed by the liquid on the floor prior to Palavicini’s fall. Palavicini
asserts that the district court failed to view the evidence and all reasonable
inferences in the light most favorable to her.
“We review a district court’s grant of summary judgment de novo, viewing
all the evidence, and drawing all reasonable factual inferences, in favor of the
nonmoving party.” Stephens v. Mid-Continent Cas. Co.,
749 F.3d 1318, 1321
(11th Cir. 2014). Summary judgment must be granted “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is
improper, however, “if the evidence is such that a reasonable jury could return a
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verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242,
248 (1986).
To prevail on a negligence claim, a plaintiff must prove that (1) the
defendant had a legal duty to protect the plaintiff from particular injuries; (2) the
defendant breached that duty; (3) the defendant’s breach actually and proximately
caused the plaintiff’s injuries; and (4) the plaintiff suffered actual harm.
Zivojinovich v. Barner,
525 F.3d 1059, 1067 (11th Cir. 2008). With respect to the
duty element, “[a] possessor of premises to which the public is invited has a legal
duty to ascertain that the premises are reasonably safe for invitees.” Skipper v.
Barnes Supermarket,
573 So. 2d 411, 413 (Fla. 1st DCA 1991). This duty to
business invitees equates to two legal duties: (1) to use reasonable care to maintain
the premises in a safe condition, which includes a duty to use reasonable care to
learn of the existence of any dangerous conditions on the premises, and (2) to give
the invitee warning of concealed perils which are or should be known to the
landowner, but are unknown to the invitee and could not be discovered by him
through the exercise of due care.
Id.
Under Florida law, which governs this diversity case, 1 a plaintiff bringing a
negligence claim based upon a transitory foreign substance on the floor of a
1
A federal court sitting in diversity applies the substantive law of the state in which the case
arose. Pendergast v. Spring Nextel Corp.,
592 F.3d 1119, 1132–33 (11th Cir. 2010).
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business must prove that the business had “actual or constructive knowledge of the
dangerous condition and should have taken action to remedy it.” Fla. Stat.
§ 768.0755(1).
Actual knowledge of a dangerous condition exists when a business owner’s
employees or agents know of or create the dangerous condition. Barbour v.
Brinker Fla., Inc.,
801 So. 2d 953, 957 (Fla. 5th DCA 2001). Constructive
knowledge can be established by circumstantial evidence, by either 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.
Fla. Stat. § 768.0755(1).
i. Actual Notice
Palavicini argues Wal-Mart was on actual notice there was a leaking air
conditioning unit above the area where she fell. Because we agree with Wal-Mart
that Palavicini did not preserve this argument for appeal, we may not consider it.
A party may raise an issue on appeal if the question was “presented to the
trial court for a ruling and not thereafter waived or withdrawn.” Ace Am. Ins. Co.
v. Wattles Co.,
930 F.3d 1240, 1250 n.14 (11th Cir. 2019) (quotation marks
omitted). A party waives its right to appeal from an issue decided through a
magistrate judge’s report and recommendation (“R&R”) if the party fails to make
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specific and clear objections to the relevant finding of fact or law. See Knezevich
v. Ptomey, 761 F. App’x 904, 906 (11th Cir. 2019) (per curiam) (unpublished);
11th Cir. R. 3-1; see also Fed. R. Civ. P. 72(b) (setting forth the procedure for
objecting to a magistrate judge’s R&R). In general, it is improper for a federal
appellate court to be the first judicial body to pass upon a substantive issue in a
case. See Strickland v. Alexander,
772 F.3d 876, 889 (11th Cir. 2014).
The district court record shows that Palavicini did not preserve her actual
notice argument for appeal. At a conference before the magistrate judge on August
15, 2018—well into the course of litigation—Palavicini’s counsel and the judge
engaged in the following colloquy:
THE COURT: This is not an actual knowledge case, right? The plaintiff
is not proceeding on and has adduced no evidence of actual knowledge,
is that correct?
MR. CONFORTI: That’s correct.
Palavicini’s affirmative abandonment of her actual notice argument is reinforced
by her substantive briefing before the district court. In opposition to Wal-Mart’s
motion for summary judgment, Palavicini briefly mentioned the possibility that
Wal-Mart had actual notice of the leak, but then proceeded to argue only that Wal-
Mart had constructive knowledge. What’s more, the R&R recommending that
Wal-Mart’s motion for summary judgment be granted states: “Plaintiff does not
claim—and the evidence does not show—that Wal-Mart had actual knowledge of
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the liquid substance on which she slipped.” Palavicini’s opposition to the R&R
mentions facts that could support allegations of actual notice, but she did not object
to the R&R’s finding that Wal-Mart did not have actual notice of the leak. Neither
did she make any substantive arguments in support of an actual notice claim.
Palavicini’s actions in litigating the case before the district court simply do not
show a desire to present the issue for adjudication.
On appeal, Palavicini admits her trial counsel “indicated that they were not
attempting to prove that Wal-Mart had actual knowledge of the leak prior to the
fall.” Nevertheless, she offers a number of arguments as to why the issue was
actually preserved for appeal. First, she argues it is the duty of this Court to
“review[] the record evidence de novo.” That may be so, see, e.g.,
Stephens, 749
F.3d at 1321, but we are unable to review evidence for an issue that is not properly
preserved for appeal. Second, she argues her actual notice argument was preserved
due to its presence in her complaint. Yet a brief mention of an issue in a
complaint—without more—is not enough to permit the plaintiff to assert it on
appeal. See Dunster v. Metropolitan Dade County,
791 F.2d 1516, 1518–19 (11th
Cir. 1986) (concluding plaintiffs abandoned certain claims). Third, she claims her
opposition to summary judgment “did contain language on the issue of actual
notice,” even if “actual knowledge [was] not a feature of” the response.
Regardless of whether this argument holds up on its own, it ultimately fails
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because Palavicini did not object to the R&R’s statement that actual knowledge
was neither a component of her case nor supported by record evidence. See
Resolution Tr. Co. v. Hallmark Builders, Inc.,
996 F.2d 1144, 1150 (11th Cir.
1993). True, Palavicini’s objection made brief mention of the R&R’s failure to
consider the statement of a Wal-Mart employee. But even if that employee’s
statement were a part of Palavicini’s actual notice argument, the objection was not
clear or specific enough for us to understand she wanted to make an actual notice
argument. Cf. Jimenez v. Collier Transit Mgmt., Inc., 337 F. App’x 804, 809 (11th
Cir. 2009) (per curiam) (unpublished) (holding “citation to two cases that
happened to discuss” the issue appellant sought to raise “did not preserve that
argument for review on appeal”).
Palavicini’s failure to raise her claims of Wal-Mart’s actual notice before the
district court, despite having been given several opportunities to do so, means we
cannot now weigh in on the substance of those arguments. For Palavicini to
succeed in this appeal, therefore, she must prove that Wal-Mart had constructive
notice of the dangerous condition.
ii. Constructive Notice Under Fla. Stat. § 768.0755(1)(a)
Under Fla. Stat. § 768.0755(1)(a), Palavicini must establish that the
“dangerous condition existed for such a length of time that in the exercise of
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reasonable care the condition would have been known to the defendant.” Grimes
v. Family Dollar Stores of Fla., Inc.,
194 So. 3d 424, 427–28 (Fla. 3d DCA 2016).
Palavicini argues that there is substantial evidence to support a finding that
the liquid was present on the floor before Wal-Mart’s store manager, Jorge
Mastrapa, traversed the area. Palavicini asserts that, in the two and a half minutes
between Mastrapa passing by the area to when Palavicini fell, CCTV footage
shows that no customer spilled liquid on the floor. She argues this evidence
supports a reasonable inference that the liquid had been on the floor prior to
Mastrapa passing through the area. Moreover, Wal-Mart’s use of a “considerable
amount of spill magic” 2 to absorb the liquid supports an inference that there was
enough liquid on the floor to be observable to Mastrapa. We find the evidence
insufficient to support a reasonable inference that the liquid was on the floor long
enough to establish Wal-Mart’s constructive notice.
Taken in the light most favorable to Palavicini, the evidence shows that she
slipped and fell on a liquid substance on the floor at Wal-Mart. Palavicini did not
see the liquid before falling, did not know where the liquid came from, did not
know how long it had been present before falling, and did not know of any Wal-
Mart employees who were aware of the liquid on the floor immediately before
falling. Although she testified that the liquid on the floor appeared to be “yellow”
2
Spill magic is an absorbent powder that is utilized to dry liquid.
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and “dirty,” she did not know what caused the liquid to be dirty. There is no
evidence of footprints, prior track marks, changes in consistency, drying of the
liquid, or other evidence that would tend to show that the liquid was on the floor
for an amount of time sufficient to impute constructive notice to Wal-Mart.
Palavicini asserts that no customer can be seen spilling liquid on the floor
after Mastrapa passed through the area, which she argues supports an inference that
the liquid was present prior to Mastrapa’s passing. Palavicini cites Lynch v. Target
Stores, Div. of Dayton Hudson Corp.,
790 So. 2d 1193, 1194 (Fla. 4th DCA 2001),
for the proposition that the lack of a potential cause for the presence of a foreign
substance during a certain timeframe “supports a reasonable inference that the
foreign substance had been on the floor” prior to that timeframe. But Lynch is
factually distinguishable.
In Lynch, the plaintiff contended that for a period of fifteen minutes, she and
her daughter were shopping in the cosmetics area, within view of the nearby area
where she later slipped and fell on a creamy substance.
Id. During that fifteen
minutes, no Target employees or other customers entered or exited the area where
the fall occurred.
Id. The court found that the facts supported a reasonable
inference that the foreign substance had been on the floor for a minimum of fifteen
minutes.
Id. Whether fifteen minutes was a sufficient time in which Target should
have become aware of the condition was a question left to the jury.
Id.
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Here, unlike in Lynch, the CCTV footage shows numerous customers
walking over the area where Palavicini fell. Although Palavicini asserts that the
footage shows that no customer spilled liquid on the floor after Mastrapa left the
area, she admits that she does not know how or when the liquid got on the floor.
She also concedes that the CCTV footage does not actually show any liquid on the
floor or the ceiling leaking. Simply put, Palavicini cannot identify when the liquid
presented itself.
“[T]he mere presence of water on the floor is not enough to establish
constructive notice”—rather, the record must contain additional facts to create a
permissible inference regarding the amount of time the water had been on the
floor. Delgado v. Laundromax, Inc.,
65 So. 3d 1087, 1090 (Fla. 3d DCA 2011).
Palavicini has provided no additional facts that would support constructive notice.
Rather, the facts indicate that the liquid was not on the floor for a long period of
time prior to the incident.3 See Wal-Mart Stores, Inc. v. King,
592 So. 2d 705,
706–07 (Fla. 5th DCA 1991) (reversing a jury verdict in favor of a slip-and-fall
plaintiff when the spilled substance displayed no “obvious signs of age, such as
skid marks, smudges, dirt or the like” and there was no evidence about how or
3
The CCTV footage shows numerous customers walking over the accident area immediately
before Palavicini fell, yet there were no footprints, cart tracks, or any other signs that the puddle
had been disturbed before the incident. To infer based on these undisputed facts that the liquid
was on the floor for a sufficient period of time to charge Wal-Mart with constructive notice
would require assuming facts not supported by the record.
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when the substance got on the floor); see also Garcia v. Wal-Mart Stores East,
L.P., No. 6:14-cv-255-Orl-40TBS,
2015 WL 898582, at *2 (M.D. Fla. Mar. 3,
2015) (noting that evidence of deterioration supports constructive knowledge,
while absence of such evidence disproves it).4
To conclude that Wal-Mart had constructive notice under Fla. Stat.
§ 768.0755(1)(a), would require drawing a series of impermissible inferences that
are unsupported by the record. See
Daniels, 692 F.2d at 1324 (“[A]n inference is
not reasonable if it is only a guess or a possibility, for such an inference is not
based on the evidence but is pure conjecture and speculation. This proposition is
undoubtedly sound.” (internal quotation marks omitted)).
iii. Constructive Notice Under Fla. Stat. § 768.0755(1)(b)
Palavicini argues that even if the record evidence is deficient to establish
that the liquid was on the floor for a sufficient amount of time to impute
constructive notice to Wal-Mart under Fla. Stat. § 768.0755(1)(a), constructive
4
Palavicini relies on this Court’s unpublished decision in Doudeau v. Target Corp., 572 F.
App’x 970, 971–72 (11th Cir. 2014), where we reversed the district court’s grant of summary
judgment because there was evidence that the area where the plaintiff fell was a known slip and
fall area, and evidence that it was raining on the day in question. As the district court correctly
pointed out, Doudeau is distinguishable. The fact that the defendant had knowledge of the
source of the water, and that water would accumulate in the known slip and fall area when it was
raining or had rained, precluded summary judgment for the defendant. See
id. at 972. Palavicini
has failed to produce similar evidence to impute constructive notice to Wal-Mart. See Brooks v.
Phillip Watts Enters., Inc.,
560 So. 2d 339, 342 (Fla. 1st DCA 1990) (reversing the grant of
summary judgment in favor of defendant because constructive notice could be inferred from
defendant’s prior knowledge of the slippery condition of the floor when wet, and prior
knowledge of the source of the water that caused the condition).
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notice can be imputed to Wal-Mart under Fla. Stat. § 768.0755(1)(b). Fla. Stat.
§ 768.0755(1)(b) requires a showing that a “condition occurred with regularity and
was therefore foreseeable.” She argues that Wal-Mart knew that the air
conditioning unit above the area where she fell frequently leaked, which is
sufficient to place Wal-Mart on constructive notice of the leak on the date of the
incident.5 Palavicini relies on four pieces of evidence to establish that the leak
occurred with regularity: (1) a former Wal-Mart employee, Angel Luis Mesa,
testified that he observed a leak on a few occasions in the ceiling above where
Palavicini fell; (2) Wal-Mart’s Asset Protection Assistant Manager, Jose Perez Del
Rio, testified that he was aware of other ceiling leaks at the store; (3) an affidavit
from Palavicini’s air conditioning expert, John Provenzano, explaining that the
leak occurred because the air conditioning unit did not have the appropriate safety
float switch; and (4) a work order issued two months before the incident that
addressed a leak in the air conditioning unit above the area where Palavicini fell.
Although Mesa testified that he had observed on a few occasions a leak from
the ceiling above the area where Palavicini fell, he had “no knowledge as to the
specific date and time [he] observed the leaks” and did not know of anyone falling
because of the leaks. Perez Del Rio similarly testified that he was aware of leaks at
5
The district court correctly noted that Wal-Mart contests the fact that there was a leak, but for
purposes of summary judgment, we must accept Palavicini’s assertion that there was a ceiling
leak on the date of the incident.
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the store but did not know of any leaks regarding the specific air conditioning vent
directly above where Palavicini fell. We find these statements insufficient to
establish that a leak above the incident area occurred with such regularity that it
would foreseeably reoccur on the date of the accident.
Palavicini also relies on Provenzano’s affidavit, which expresses opinions
regarding the subject air conditioning unit. Provenzano believed that the leak was
caused by the lack of a “safety float switch” in the air conditioning unit. He
observed water damage in the ceiling above where Palavicini fell and opined that
the damage was indicative of prior water intrusions and leaks. His also noted
extensive amounts of rust, sludge, and algae in the unit. But as the district court
noted, Provenzano inspected the air conditioning unit in June 2018—four years
after Palavicini’s accident. The district court held that Provenzano’s “opinion
provides no basis from which a reasonable fact finder could conclude that the
damage Mr. Provenzano witnessed in June 2018 was present at or around the time
of [Palavicini’s] accident.” We agree. Provenzano’s affidavit fails to establish that
the air conditioning unit was in a similar poor condition in 2014. His affidavit is
therefore insufficient to demonstrate foreseeability of a dangerous condition on the
date of the accident.
Finally, Palavicini relies on a work order, which indicates that a leak in the
air conditioning unit at issue was fixed two months prior to the incident. But
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again, to prove constructive notice under Fla. Stat. § 768.0755(1)(b), Palavicini
must demonstrate that the leak that caused her fall “occurred with regularity.” An
isolated work order that was issued two months before the incident is insufficient
to show that the air conditioning unit leaked regularly. 6
We find that Palavicini has failed to adduce evidence sufficient to establish
that the dangerous condition—a ceiling leak that caused Palavicini to slip and
fall—occurred with such regularity that it was foreseeable on the date of the
incident.
III. Conclusion
Palavicini has failed to produce sufficient evidence to support a reasonable
inference that Wal-Mart had constructive notice of the liquid on the floor or a leak
from the ceiling. We therefore affirm the district court’s grant of summary
judgment in favor of Wal-Mart.
AFFIRMED.
6
Moreover, the work order fails to indicate whether the leak from the air conditioning unit
reached either the ceiling or the floor.
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