Linda McCarthy v. Broward College and Sunshine Cleaning Systems, Inc. , 164 So. 3d 78 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LINDA McCARTHY,
Appellant,
v.
BROWARD COLLEGE and SUNSHINE CLEANING SYSTEMS, INC.,
Appellees.
No. 4D13-3843
[May 6, 2015]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael L. Gates, Judge; L.T. Case No. 12-21554 CACE.
Joshua S. Beck of Bazinsky, Korman & Baker, P.A., Plantation, for
appellant.
Surama Suarez of Angones, McClure & Garcia, P.A., Miami, for appellee
Broward College.
FORST, J.
Appellant Linda McCarthy filed a personal injury complaint against
Appellee Broward College when she slipped and fell on an unidentified
liquid in an elevator on the College’s Coconut Creek campus on August
25, 2011. Broward College moved for summary judgment, arguing the
Plaintiff could not prove actual or constructive knowledge of the dangerous
condition, as required by section 768.0755, Florida Statutes (2011). The
trial court granted the motion, finding that Broward College was a
“business establishment” for the purposes of the statute and ruling that
there was no genuine issue of fact to be resolved regarding Broward
College’s lack of notice of the allegedly dangerous condition.
Appellant now appeals the entry of summary judgment, arguing the
trial court improperly applied the statute to Broward College, that genuine
issues of material fact remain, and that Broward College violated its
common law duty of care. Because we disagree with Appellant’s
contentions, we affirm the entry of summary judgment and write for the
limited purposes of 1) establishing that section 768.0755, Florida Statutes
(2011), does apply to public institutions of higher learning, like Broward
College, and 2) reaffirming that there are situations when it is appropriate
to grant summary judgment in favor of a defendant in a slip and fall suit
brought under section 768.0755, Florida Statutes (2011).
I. Broward College is a “Business Establishment”
Section 768.0755, Florida Statutes (2011), states:
(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.
(2) This section does not affect any common-law duty of care owed
by a person or entity in possession or control of a business premises.
(emphasis added). Appellant contends that, because Broward College is a
state-owned institution of higher education, it is not a “business
establishment” for the purposes of this statute. We disagree.
“[W]hen the language of the statute is clear and unambiguous and
conveys a clear and definite meaning, there is no occasion for resorting to
the rules of statutory interpretation and construction; the statute must be
given its plain and obvious meaning.” Holly v. Auld, 450 So. 2d 217, 219
(Fla. 1984) (quoting A.R. Douglass, Inc. v. McRainey, 137 So. 157, 159 (Fla.
1931)). Furthermore, this Court is “without power to construe an
unambiguous statute in a way which would extend, modify, or limit, its
express terms or its reasonable and obvious implications. To do so would
be an abrogation of legislative power.” Id. (quoting Am. Bankers Life
Assurance Co. of Fla. v. Williams, 212 So. 2d 777, 778 (Fla. 1st DCA 1968)).
In Publix Supermarkets, Inc. v. Santos, 118 So. 3d 317 (Fla. 3d DCA
2013), the Third District found it necessary to define “business
establishment” as used in the statute. That court held “[t]he plain and
ordinary meaning of a term can be ascertained through the use of a
dictionary.” Id. at 320. Relying on a dictionary, the Third District defined
“business establishment” as “a location where business is conducted,
goods are made or stored or processed or where services are rendered.” Id.
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(internal quotations and citations omitted). We agree with the Third
District’s definition of the term and hold that Broward College is a business
establishment where “services are rendered” for a fee. Furthermore, while
a college seems quite different than a grocery store or other retail outlet,
this statute has been held to apply to other service-based, government-
owned entities, such as Miami International Airport (Kenz v. Miami-Dade
Cnty., 116 So. 3d 461 (Fla. 3d DCA 2013)) and a U.S. Postal Service facility
(Kertz v. U.S., 2013 WL 1464180 (M.D. Fla. Apr. 10, 2013)). Therefore, we
affirm the trial court’s application of section 768.0755, Florida Statutes
(2011), in this case.1
II. Summary Judgment was an Appropriate Disposition
“Summary judgment cannot be granted unless the pleadings,
depositions, answers to interrogatories, and admissions on file together
with affidavits, if any, conclusively show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as
a matter of law.” Jelic v. CitiMortgage¸ Inc., 150 So. 3d 1223, 1224-25 (Fla.
4th DCA 2014) (quoting Allenby & Assocs., Inc. v. Crown St. Vincent Ltd.,
8 So. 3d 1211, 1213 (Fla. 4th DCA 2009)). When evaluating summary
judgment evidence, the court must “draw every reasonable inference in
favor of the non-moving party.” Knight Energy Servs., Inc. v. Amoco Oil
Co., 660 So. 2d 786, 788 (Fla. 4th DCA 1995).
In this case, even drawing every reasonable inference in favor of the
non-moving party, Broward College was entitled to judgment in its favor
as a matter of law. The facts of this case are similar to Walker v. Winn–
Dixie Stores, Inc., 2014 WL 4086798, 39 Fla. L. Weekly D1750 (Fla. 1st
DCA Aug. 20, 2014), Delgado v. Laundromax, Inc., 65 So. 3d 1087 (Fla. 3d
DCA 2011), and Publix Super Markets, Inc. v. Schmidt, 509 So. 2d 977 (Fla.
4th DCA 1987). In Walker, the First District affirmed a summary judgment
on behalf of a Winn–Dixie grocery store, noting there was no evidence of
how long the dangerous condition existed before the fall, no evidence that
wet conditions occurred with regularity in the area where the plaintiff fell,
nor any “evidence of active negligence by Winn–Dixie employees.” Walker,
39 Fla. L. Weekly at D1751.
1 In her initial brief, Appellant puts great weight in the deposition testimony of
Broward College’s facilities manager, wherein she stated that her employer was
not a business establishment. This testimony is due no weight regarding a
question of law, i.e. the interpretation of statutory language such as the meaning
of “business establishment” under section 768.0755(1), Florida Statutes (2011).
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In Delgado, the plaintiff slipped and fell in a laundry facility, claiming
that she slipped on water on the floor. Delgado, 65 So. 3d at 1090. The
plaintiff was unable to determine where the water came from, how long it
had been on the floor, or if anyone at the facility knew there was water on
the floor before she walked in. Id. The Third District affirmed the trial
court’s granting of summary judgment, noting there was no evidence “that
it was raining or that it had rained recently, or that any of the facility’s
washers, sinks, or other equipment was located near the door.” Id.Likewise, in Schmidt, a customer slipped near the deli counter, but did
not know what caused her to slip. Schmidt, 509 So. 2d at 978. The
plaintiff testified that she thought she slipped on grease, as there was a
greasy stain on her skirt, but no other witnesses saw anything on the floor.
Id. Although a former employee testified that he had seen some drops on
the floor on previous occasions, which he believed were from overfilling of
gravy on a food tray, there was no evidence of any recent spills. Id. This
court held that there was “no proof that Publix or its employees were at
fault, or that the substance was on the floor for a sufficient length of time
to put a defendant on notice.” Id. Because of this lack of proof, the jury’s
verdict impermissibly relied on “inferences on top of inferences” to explain
the fall. Id.Following the rule established in these cases, summary judgment in
favor of Broward College was appropriate. Appellant provided no facts
indicating how Broward College was liable for her fall, as she was unable
to identify the liquid in the elevator, determine how long it had been there,
or establish if anyone at Broward College had actual or constructive notice
of its presence. Moreover, no evidence was presented or argument made
that “[t]he condition [(an allegedly wet elevator floor)] occurred with
regularity and was therefore foreseeable.” § 768.0755(1)(b), Fla. Stat.
(2011). In fact, given the limited evidence presented to the trial court,
Appellant’s theory of the case, that the liquid in the elevator was rainwater,
would require the stacking of inferences and a disregard of Appellant's
testimony in order to find liability. Specifically, Appellant introduced
evidence that it rained in Pompano Beach, some four miles away from
Broward College, but no evidence that it rained at the Broward College
campus. Moreover, Appellant testified that it was not raining when she
drove to work, when she arrived at the campus at approximately 9:30 a.m.,
or when she walked to the elevator at approximately 10:50 a.m., with the
only rain that morning of which she was aware was “much earlier in the
morning.” Therefore, the trier of fact would have to infer (seemingly
contrary to Appellant’s testimony) that this Pompano Beach rain shower
also affected Broward College, which is not a foregone conclusion, as
anyone familiar with our state’s summer storms is well aware. The trier
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of fact would also have to infer that this rainwater was somehow
introduced to the elevator floor, despite the surrounding walkway being
dry at the time of the incident.
In contrast to cases like Delgado, this court has a line of cases holding
that “evidence that no inspection had been made during a particular
period of time prior to an accident may warrant an inference that the
dangerous condition existed long enough so that the exercise of reasonable
care would have resulted in discovery.” Schmidt v. Bowl Am. Fla., Inc., 358
So. 2d 1385, 1387 (Fla. 4th DCA 1978). For example, summary judgment
in favor of a defendant was reversed because a plaintiff, in her affidavit,
indicated that no worker or customer had “entered or exited the area where
the fall occurred” in the fifteen minutes prior to the plaintiff falling on a
creamy substance. Lynch v. Target Stores, Div. of Dayton Hudson Corp.,
790 So. 2d 1193, 1194 (Fla. 4th DCA 2001). This fact supported “a
reasonable inference that the foreign substance had been on the floor for
a minimum of fifteen minutes,” and the determination as to whether fifteen
minutes was “sufficient time in which [the defendant] should have become
aware of this condition is for the trier of fact.” Id.The “fifteen minutes” time period noted in Lynch should not be
construed as creating a per se rule. Instead, the time between inspections
necessary to give rise to an inference that the dangerous condition existed
sufficiently long enough that it would have been discovered in the exercise
of reasonable care must be governed by a reasonableness standard, giving
due consideration to the size, nature, and inherent risks of the area in
question. A fifteen minute period may be sufficient to presume negligence
in a relatively small retail store filled with products that could easily fall,
spill, or break and create a hazard. However, when considering a large
expanse, like a college campus or outdoor park, it is reasonable to allow
greater intervals between inspections, particularly when the area is devoid
of objects or conditions that are likely to cause substantial risks to persons
therein. In this case, the uncontroverted evidence established that the
elevator had been cleaned approximately fifty minutes before Appellant’s
fall and there is no credible evidence that it had rained during this time
period (Appellant stated that the concrete floor surface immediately
outside the cab of the elevator was “dry”). Given the size of the campus,
the lack of any evidence that it rained at Broward College during this fifty
minute period, and the absence of any other particularized threat or active
or regular negligence on the part of employees of the College, this time
period does not warrant an inference of negligence.
Conclusion
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The trial court correctly found that section 768.0755, Florida Statutes
(2011), applies to Broward College. Additionally, the trial court properly
granted summary judgment in favor of Broward College, as there were
insufficient facts, absent the impermissible stacking of inferences, to find
liability on the part of Broward College. Therefore, we affirm the trial
court’s grant of summary judgment.
Affirmed.
WARNER and GROSS, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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