Summary
affirming summary judgment where the record was "devoid of facts evidencing the length of time the [substance] was on the floor, ‘the condition occurred with regularity and was therefore foreseeable, or any other salient factor that would serve to lawfully impute constructive notice to Ross"
Summary of this case from Angeles v. Winn-Dixie Stores, IncOpinion
No. 3D19-0795
07-01-2020
Ana MORALES, Appellant, v. ROSS DRESS FOR LESS, INC., Appellee.
Friedland & Associates, and Michael T. Gelety (Fort Lauderdale), for appellant. Gaebe, Mullen, Antonelli & DiMatteo, and Emily C. Smith, and Miriam Merlo, for appellee.
Friedland & Associates, and Michael T. Gelety (Fort Lauderdale), for appellant.
Gaebe, Mullen, Antonelli & DiMatteo, and Emily C. Smith, and Miriam Merlo, for appellee.
Before SCALES, MILLER, and GORDO, JJ.
MILLER, J.
Appellant, Ana Morales, challenges a final summary judgment rendered in favor of appellee, Ross Dress for Less, Inc. ("Ross"), in her lawsuit alleging damages for personal injuries sustained during a fall in the aisle of a retail establishment located in Hialeah, Florida. As the record below demonstrates Ross lacked the requisite "actual or constructive knowledge of a dangerous condition," we affirm. § 768.0755, Fla. Stat. (2019).
By Florida statute, "[i]f 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." § 768.0755(1), Fla. Stat. "Constructive notice may be inferred from either: (1) the amount of time a substance has been on the floor; or (2) the fact that the condition occurred with such frequency that the owner should have known of its existence." Delgado v. Laundromax, Inc., 65 So. 3d 1087, 1090 (Fla. 3d DCA 2011) (citing Schaap v. Publix Supermarkets, Inc., 579 So. 2d 831, 834 (Fla. 1st DCA 1991) ); see also § 768.0755(1)(a)-(b), Fla. Stat.
In the instant case, because there was no evidence "suggesting the existence of the foreign substance on the floor was known" to the store, it was incumbent upon Morales to come forward with circumstantial evidence that Ross, "in the exercise of ordinary caution, should have known of the condition." Encarnacion v. Lifemark Hosps. of Fla., 211 So. 3d 275, 278 (Fla. 3d DCA 2017).
In her operative complaint, Morales attributed her loss of footing to pieces of smashed plastic, purportedly originating from a clothes hanger. Nonetheless, in her deposition, directly contradicting earlier verified answers to interrogatories, Morales disavowed any knowledge as to either the cause of the fall or origin of the hanger. Observing this incongruity, the trial court rejected any reliance upon the written discovery. See Ellison v. Anderson, 74 So. 2d 680, 681 (Fla. 1954) ("Baldly repudiated" testimony prohibited in avoidance of summary judgment); see also Carriage Hills Condo., Inc. v. JBH Roofing & Constructors, Inc., 109 So. 3d 329, 337 (Fla. 4th DCA 2013) (Parties to the litigation are " ‘bound,’ ... as any witness is bound ‘by his or her ... deposition testimony.’ ") (citation omitted). Morales has not demonstrated that "no reasonable man [or woman] would take the view adopted by the trial court." Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980) (citation omitted); see Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) ("In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error."); see also Lesnik v. Duval Ford, LLC, 185 So. 3d 577, 580 (Fla. 1st DCA 2016) (reviewing the application of Ellison by the trial court under an abuse of discretion standard).
Regardless, the summary judgment record, in its entirety, was devoid of facts evidencing the length of time the pieces were on the floor, "[t]he condition occurred with regularity and was therefore foreseeable," or any other salient factor that would serve to lawfully impute constructive notice to Ross. § 768.0755(1)(b), Fla. Stat.
Accordingly, "given the limited evidence presented to the trial court, [Morales]’s theory of the case ... would require the stacking of inferences ... in order to find liability," and we decline to embrace the assertion of error. McCarthy v. Broward Coll., 164 So. 3d 78, 81 (Fla. 4th DCA 2015).
Affirmed.