Encarnacion v. Lifemark Hospitals of Florida, Inc. , 211 So. 3d 275 ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed February 1, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-0834
Lower Tribunal No. 13-1003
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Carmen Encarnacion,
Appellant,
vs.
Lifemark Hospitals of Florida, etc., et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.
Eaton & Wolk, PL, and Douglas F. Eaton, for appellant.
Falk, Waas, Hernandez, Cortina, Solomon, & Bonner, P.A., and Glenn Falk,
Sr., Scott L. Mendlestein and Richard A. Warren; Bice Cole Law Firm, P.L., and
Neil A. Covone, for appellees.
Before ROTHENBERG and SCALES, JJ., and SHEPHERD, Senior Judge.
SHEPHERD, Senior Judge.
Carmen Encarnacion appeals from a summary final judgment in a slip-and-
fall case she brought against Lifemark Hospitals of Florida, Inc., doing business as
Palmetto General Hospital, and the Hospital’s contract cleaning company, Hospital
Housekeeping Systems, Inc., for injuries suffered from a fall in the emergency
room hallway of the hospital. The thrust of Ms. Encarnacion’s argument to the
trial court was that a genuine issue of material fact existed concerning whether the
hospital and its housekeeping vendor knew or should have known of the dangerous
condition. The trial court found there was no genuine issue of material fact and
granted final summary judgment to the hospital and cleaning company. We agree
and affirm the decision of the trial court, albeit with a slightly different analysis. A
brief summary of the facts of the case are necessary to explain our decision.
FACTS
Ms. Encarnacion arrived at Palmetto General Hospital at approximately 4:45
p.m. on March 11, 2011, to assist her elderly mother, who had arrived in the
emergency room a few hours earlier after having suffered a stroke. She found her
mother still in the emergency room, resting comfortably. A hospital nurse advised
Ms. Encarnacion that her mother needed to be admitted to the hospital, but that
they would have to wait a short time for a bed to come available. After five hours,
Ms. Encarnacion decided to seek out a nurse to determine the status of their wait.
As Ms. Encarnacion left the room, she saw a man who she thought was an
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Emergency Medical Services (EMS) paramedic with a spray bottle in the hallway,
cleaning a stretcher. She attempted to walk around the area where the man was
cleaning, but slipped and fell due to what she “guess[ed],” was spray liquid on the
floor.
Almost two years later, on January 9, 2013, Ms. Encarnacion sued the
Hospital and soon thereafter joined Hospital Housekeeping Systems. Shortly after
suit was filed, Ms. Encarnacion submitted a statement of claim to the Risk
Management Division of Miami-Dade County in which she stated that the
substance she slipped on was the same as that being used by the EMS paramedic.
She repeated this assertion in her answers to the hospital’s interrogatories, stating
again that she slipped because of a slippery substance which “EMS personnel was
using to clean a stretcher in the hallway.”
On July 15, 2013, six months into the lawsuit, Ms. Encarnacion became a
little less certain about the identity of the person who was cleaning the stretcher,
stating the man “may be a rescue.” She also testified there were no signs
indicating the floor was wet; that aside from the spray bottle, she did not see any
mop bucket, dripping mops, or food service items in the hallway; and the substance
on the floor was “oily”, dirty”, and “dark.” About a month later, in a subsequent
deposition, Ms. Encarnacion asserted that the substance smelled like a cleaning
product similar to “Pine Sol,” she did not know how long the substance had been
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on the floor, and she thought that “because [the man’s] uniform was kind of gray,
dark gray, [she assumed] that he was an EMS.”
Both the Hospital and Hospital Housekeeping Systems moved for summary
judgment on the ground there was a complete lack of evidence that either the
Hospital or Hospital Housekeeping Systems had actual or constructive knowledge
of the condition and, based on Ms. Encarnacion’s answers to interrogatories, it was
undisputed that the person using the spray was an EMS paramedic. The Hospital
further asserted that it employed reasonable measures to maintain its emergency
department in a reasonably safe condition by having its own security personnel
police the emergency room area on a regular basis to correct any dangerous
condition, and by employing Hospital Housekeeping Systems, which assigned two
housekeepers to the emergency department twenty-four hours per day, seven days
per week. Absent from the record were cleaning schedules, cleaning logs or
employee testimony concerning the extent to which the Hospital’s security
personnel or Hospital Housekeeping Systems performed their assigned and
contractual tasks. On this record, the trial court granted summary judgment in
favor of the Hospital and Hospital Housekeeping Systems, Inc.
STANDARD OF REVIEW
Summary judgment is proper when the pleadings, discovery and affidavits
show there is “no genuine issue as to any material fact and that the moving party is
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entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510. Material facts are
those which may affect the outcome of the case. Winn-Dixie Stores, Inc. v.
Dolgencorp., Inc., 964 So. 2d 261, 263-264 (Fla. 4th DCA 2007) (“An issue of fact
is ‘material’ if it is a legal element of the claim under the applicable substantive
law which might affect the outcome of the case.”) (citing Byrd v. BT Foods, Inc.,
948 So. 2d 921, 923) (Fla. 4th DCA 2007). A dispute as to a material fact is
genuine if there is sufficient evidence for a reasonable jury to return a verdict for
the non-moving party. Bishop v. R. J. Reynolds Tobacco Co., 96 So. 3d 464, 467
(Fla. 5th DCA 2012) (“Issues of fact are ‘genuine’ only if a reasonable jury,
considering the evidence presented, could find for the non-moving party.”) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)); see also Dreggors v.
Wausau Ins. Co., 995 So. 2d 547, 549 (Fla. 5th DCA 2008).
ANALYSIS
We apply this standard separately to each defendant.
I. Palmetto General Hospital
“A negligence claim has four elements: (1) a duty by defendant to conform
to a certain standard of conduct; (2) a breach by defendant of that duty; (3) a causal
connection between the breach and injury to plaintiff; and (4) loss or damage to
plaintiff.” Wilson-Greene v. City of Miami, No. 3D14-3094, slip op. at 4 (Fla. 3d
DCA Jan. 25, 2017) (citing Bartsch v. Costello, 170 So. 3d 83, 86 (Fla. 4th DCA
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2015)). It is undisputed that Ms. Encarnacion was a business invitee on the
hospital premises and, therefore, the hospital owed her a duty to exercise
reasonable care to maintain their premises in a safe condition. Pembroke Lakes
Mall Ltd. v. McGruder, 137 So. 3d 418, 423 (Fla. 4th DCA 2014). However,
where a business invitee slips and falls on a “transitory substance” in a business
establishment as occurred here, proof of the breach element of the claim against an
owner of the establishment is statutorily constrained by section 768.0755 of the
Florida Statutes (2013). The statute reads as follows:
768.0755. Premises liability for transitory foreign substances in a
business establishment
(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.)
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Here, there is no evidence in the record suggesting the existence of the
foreign substance on the floor was known to the hospital. In the absence of
evidence of actual knowledge, it was incumbent on the plaintiff to come forward
with circumstantial evidence that Palmetto General Hospital, in the exercise of
ordinary caution, should have known of the condition. In this case, however, the
answers to interrogatories and depositions do not establish how long the substance
had been on the floor. In fact, if Ms. Encarnacion’s testimony is believed, the
liquid was being deposited on the floor by a non-hospital employee at the same
time Ms. Encarnacion fell. See McCarthy v. Broward College, 164 So. 3d 78 (Fla.
4th DCA 2015) (affirming summary judgment for defendant where there was no
evidence of how long the substance was on the floor before the fall); Walker v.
Winn-Dixie Stores, Inc., 160 So. 3d 909 (Fla. 1st DCA 2014) (same); Delgado v.
Laundromax, Inc., 65 So. 3d 1087 (Fla. 3d DCA 2011) (same).
Parenthetically, we note Ms. Encarnacion’s belated testimony that the
substance on the floor was “oily,” “dirty” and “dark,” even if true, as we must
assume for our purposes here, is insufficient to create a jury issue. For such
testimony to create a jury issue, the testimony must be accompanied by a “plus,”
namely some additional fact or facts from which a jury can reasonably conclude
that the substance was on the floor long enough to have become discolored without
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assuming other facts, such as the substance, in its original condition, was not
“oily,” “dirty” and “dark.” See Wilson-Greene slip op. at 6.
II. Hospital Housekeeping Systems
The liability of Hospital Housekeeping Systems in this case turns on a
slightly different point, its contractually assumed obligations. Wilson-Greene, slip
op. at 4 (“Where a contract exists, ‘a defendant’s liability extends to persons
foreseeably injured by his failure to use reasonable care in performance of a
contractual promise’”) (citing Maryland Maint. Serv., Inc. v. Palmieri, 559 So. 2d
74, 76 (Fla. 3d DCA 1990). The cleaning specifications for the Emergency
Department of the hospital, insofar as the plaintiff has elected to provide them to us
in the record, states: “Emergency department shall be cleaned on a UCR bases,
24-7 and police cleaned, as necessary.” As in Wilson-Greene, Hospital
Housekeeping Systems had no duty to constantly patrol or supervise the area
where the accident occurred.
For these reasons, we affirm the summary judgment entered in favor of the
Hospital and Hospital Housekeeping Systems.
Affirmed.
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