James Deakins v. Wal-Mart Stores East, LP

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10993
Non-Argument Calendar
____________________
JAMES DEAKINS,
Plaintiff-Appellant,
versus
WAL-MART STORES EAST, LP,
A Foreign Limited Partnership d.b.a. Walmart #2176,
Defendant-Appellee,
MARY WEBSTER,
Defendant.
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____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:21-cv-80935-DMM
____________________
Before LAGOA, BRASHER , and E D C ARNES , Circuit Judges.
PER CURIAM:
After slipping on water at the entrance of a Walmart store
and sustaining injuries, James Deakins sued Walmart for negli-
gence. He now appeals the district court’s grant of summary judg-
ment in favor of Walmart. We think the store’s surveillance video
creates a genuine question of fact about whether Walmart had con-
structive knowledge of the water on the floor, so we reverse the
grant of summary judgment in favor of Walmart and remand.
I. Background
In March 2019, James Deakins went to a Walmart store in
Jupiter, Florida. He made some purchases, left the store to put his
purchased items in his car, and then reentered to use the restroom,
using the same entrance each time he entered and exited the store.
As he reentered the store, he slipped on water on the floor of the
vestibule area. He regained his balance without falling but injured
his back, knee, and hip.
Although it had rained on and off that day, it’s undisputed
that it was not raining when Deakins entered, exited, or reentered
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22-10993 Opinion of the Court 3
the store. Deakins testified that when he first left the store he did
not notice any water on the floor. He also did not notice any water
on the floor when he reentered until after he slipped. He recalled
looking down to see what caused his slip and noticing a “sheen” of
water about three feet in diameter.
Deakins’ slip and the events leading up to it were captured
on one of Walmart’s security cameras. The surveillance video
shows Deakins first entering the store at 1:35 p.m. As he enters, he
walks past a large fan that is facing the vestibule area.
While Deakins is inside the store, no shoppers walking
through the same doors use an umbrella, raincoat, or anything else
to cover themselves from rain. But during that time (and even be-
fore Deakins arrives at the store), wet spots are occasionally visible
on the floor of the vestibule as shoppers enter the store.
Deakins first leaves the store at 1:53 p.m. He reenters the
store two minutes and 18 seconds later (walking directly over the
same area he previously walked over when he exited) and slips.
The specific wet spot Deakins faults for his slip is not visible on the
surveillance video in the seconds before the slip, but two tracks of
water are clearly visible after the slip. It is not completely clear
from the video whether Deakins himself tracked the water in from
outside the store or whether it was already present there.
The vestibule Deakins walked through has two sets of slid-
ing automatic doors. The video shows that the time of Deakins’
slip, one set of doors had a floor mat covering the entrance and the
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other did not. Deakins entered, exited, and reentered through the
set of doors that did not have a mat.
Walmart’s wet weather policy instructs employees “to place
carpeted mats at each entrance” “[w]hen wet weather is expected.”
Several Walmart employees confirmed that they are supposed to
place floor mats at store entrances if it’s raining or expected to rain.
Although not required by the wet weather policy, Walmart
employees also put fans at entrances and exits when it rains to help
dry wet floors. Sometimes employees remove the fans after the
floor is dry, and other times they leave the fans in the vestibule ar-
eas in case it rains again.
After his slip Deakins sued Walmart, alleging that Walmart
was negligent in inspecting and maintaining its premises. The dis-
trict court granted summary judgment to Walmart, concluding
that Deakins had not shown a genuine dispute of fact as to whether
Walmart had actual or constructive knowledge of the dangerous
condition. Deakins now appeals.
II. Standard of Review
We review de novo the district court’s grant of summary
judgment, construing the facts and drawing all reasonable infer-
ences in favor of the nonmoving party. Campbell v. Johnson, 586
F.3d 835, 840 (11th Cir. 2009). Summary judgment is appropriate
if there is “no genuine dispute as to any material fact and the mo-
vant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a).
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III. Discussion
To prove negligence under Florida law, a plaintiff must
show that: (1) the defendant owed him a duty, (2) the defendant
breached that duty, (3) the defendant’s breach caused the plaintiff’s
injury, and (4) the plaintiff suffered some actual harm.1 Williams v.
Davis, 974 So. 2d 1052, 1056 (Fla. 2007).
Businesses generally “owe a duty to their invitees to exercise
reasonable care to maintain their premises in a safe condition.”
Friedrich v. Fetterman & Assocs., P.A., 137 So. 3d 362, 365 (Fla. 2013)
(quotation marks omitted). But Fla. Stat. § 768.0755 limits a busi-
ness’s liability to an invitee who is injured by a “transitory foreign
substance.”2 See Lago v. Costco Wholesale Corp., 233 So. 3d 1248,
1250 (Fla. 3d DCA 2017); see also Lauderdale Supermarket, Inc. v.
Puentes, 332 So. 3d 526, 530 (Fla. 4th DCA 2021) (explaining that
Fla. Stat. § 768.0755 does not allow for liability based solely on the
business’s “general failure to maintain the premises”). Section
768.0755 provides that “[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
1 Because Deakins’ negligence claims arise under Florida law and we are exer-
cising diversity jurisdiction, we apply Florida’s substantive law. See Pendergast
v. Spring Nextel Corp., 592 F.3d 1119, 1132–33 (11th Cir. 2010).
2 The Florida Supreme Court has defined a “transitory foreign substance” as
“any liquid or solid substance, item or object located where it does not be-
long.” Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 317 n.1 (Fla. 2001).
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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’s employee or agent “knows of or creates” the dangerous
condition. Barbour v. Brinker Fla., Inc., 801 So. 2d 953, 957 (Fla. 5th
DCA 2001); see Food Fair Stores, Inc. v. Trusell, 131 So. 2d 730, 732
(Fla. 1961). A plaintiff can establish constructive knowledge with
circumstantial evidence showing that either: (1) “[t]he 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 (2) “[t]he condition occurred with regularity and
was therefore foreseeable.” Fla. Stat. § 768.0755(1).
Deakins contends that the evidence shows that Walmart
had both actual and constructive knowledge that the floor of the
vestibule was wet. We conclude that the record contains sufficient
evidence to create a genuine issue of fact about Walmart’s con-
structive knowledge.3
“[T]he mere presence of water on the floor is not enough to
establish constructive notice.” Delgado v. Laundromax, Inc., 65 So.
3d 1087, 1090 (Fla. 3d DCA 2011). “[T]he record must contain ad-
ditional facts in support of liability, to create a permissible infer-
ence” upon which Deakins can rely in defense against summary
3 Because we hold that there is a genuine dispute as to Walmart’s constructive
knowledge, we need not address Deakins’ contentions regarding actual
knowledge. See Fla. Stat. § 768.0755(1) (requiring either actual or constructive
knowledge for liability).
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judgment. Id. Therefore, the evidence viewed in the light most
favorable to Deakins must support a reasonable inference that
Walmart should have known about the water, either because of
the amount of time the floor was wet or because wet floors were a
regular occurrence. See Fla. Stat. § 768.0755(1).
“In trying to assess how long a substance has been sitting on
a floor, courts look to several factors, including evidence of foot-
prints, prior track marks, changes in consistency, [or] drying of the
liquid.” Welch v. CHLN, Inc., 357 So. 3d 1277, 1278–79 (Fla 5th DCA
2023) (alteration in original) (quotation marks omitted); accord Nor-
man v. DCI Biologics Dunedin, LLC, 301 So. 3d 425, 430 (Fla. 2d DCA
2020) (finding evidence such as “footprints, prior track marks,
changes in consistency, [or] drying of the liquid” tended to show
liquid “was on the floor for an amount of time sufficient to impute
constructive notice”) (alteration in original) (quotation marks
omitted). But when there is “nothing about the description of the
substance that would indicate the length of time it was on the floor,
courts have precluded the jury from deciding the issue of negli-
gence.” Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 321–22
(Fla. 2001).
In rejecting Deakins’ constructive knowledge arguments,
the district court found that he had not offered any evidence of how
long the water was on the floor. After carefully reviewing the
video footage, we disagree. Viewing the video in the light most
favorable to Deakins, it creates a genuine dispute as to whether
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water had been on the floor of the vestibule entrance for long
enough that Walmart should have known about it.
The surveillance video shows that a fan was placed in the
vestibule at least an hour before the incident. As Walmart admits,
that indicates that the floor had been wet more than an hour ear-
lier. True, the fan was supposed to dry the floor. But the video
also shows that for almost 30 minutes leading up to Deakins’ slip,
wet spots regularly appear on the floor as shoppers enter the vesti-
bule. Some Florida courts have found, based on the specific facts
and evidence of the case, that evidence of a condition being present
for at least fifteen to twenty minutes may “be sufficient for defend-
ants to be charged with knowledge of the condition and a reasona-
ble time in which to correct it.” See Sutton v. Wal-Mart Stores E., LP,
64 F.4th 1166, 1169 (11th Cir. 2023) (first quoting Winn Dixie Stores,
Inc. v. Williams, 264 So. 2d 862, 864 (Fla. 3d DCA 1972); then citing
Lynch v. Target Stores, Div. of Dayton Hudson Corp., 790 So. 2d 1193,
1194 (Fla. 4th DCA 2001)). Viewing the evidence in the light most
favorable to Deakins, a reasonable jury could conclude that, under
the circumstances of this case, close to 30 minutes of the presence
of liquid in the vestibule area was enough time for Walmart to have
been on notice of the wet floor. See, e.g., Lynch, 790 So. 2d at 1194
(“The facts, viewed most favorably to the plaintiff, support a rea-
sonable inference that the foreign substance had been on the floor
for a minimum of fifteen minutes. Whether that is sufficient time
in which appellee should have become aware of this condition is
for the trier of fact.”); Little v. Publix Supermarkets, Inc., 234 So. 2d
132, 134 (Fla. 4th DCA 1970).
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Walmart acknowledges that the video shows customers
tracking in water but claims that those water marks “disappear.”
Admittedly, the video is not entirely clear. The wet spots are most
visible when the automatic doors or shoppers cast shadows onto
the vestibule floor, and there are times when the spots aren’t visible
at all. A jury viewing the video footage could reasonably conclude
that the spots disappear as the fan dries them. But the video allows
for the competing inference that some marks “disappear” from
sight because of shifting shadows and glare, not because the water
dries completely. Given these competing inferences, we take Dea-
kins’ version of what happened in the video at the summary judg-
ment stage. See Shaw v. City of Selma, 884 F.3d 1093, 1097 n.1 (11th
Cir. 2018) (explaining that “where a [video] recording does not
clearly depict an event or action, and there is evidence going both
ways on it, we take the [nonmovant’s] version”).
Walmart also argues that the exact water mark where Dea-
kins slipped is not visible on the video in the seconds before the
incident. It points to Deakins’ own admission that he could have
tracked in the water on which he slipped. Indeed, reviewing the
video, one reasonable inference is that Deakins tracked in the liquid
that he slipped on, given that liquid tracks visibly appear right after
Deakins’ several steps in the area. But the video also shows that
water is visible in that vestibule area 20 minutes before Deakins
slips — and, arguably, at other instances after that point, depending
on how one views the glare and shadows, leading to a reasonable
inference that the floor was still wet at the time Deakins slipped.
And just a few seconds before the slip, another shopper leaving the
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store appears to look down at the same area of the floor, although
it is not entirely clear whether she is looking at the floor itself or at
one of her grocery bags. In any event, Walmart’s focus on the par-
ticular offending puddle overlooks the undisputed video evidence
that shoppers tracked water across the vestibule floor for nearly 30
minutes leading up to the incident. While a jury could reasonably
conclude that the cause of Deakins’ fall was from liquid he tracked
in from outside of the store and that the previous water on the floor
had fully dried, a jury could also reasonably conclude from the
video footage that water on the area of the floor where Deakins
slipped was the cause of the fall and there long enough before the
slip for Walmart to have had constructive knowledge of it and cor-
rect it.
We reverse the district court’s grant of summary judgment
in favor of Walmart and remand for proceedings consistent with
this opinion.
REVERSED and REMANDED.
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