USCA11 Case: 21-11012 Date Filed: 11/01/2021 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11012
Non-Argument Calendar
____________________
JACQUELINE STRUCK,
Plaintiff-Appellant,
versus
WAL-MART STORES EAST, LP,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:19-cv-00598-SPC-NPM
____________________
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2 Opinion of the Court 21-11012
Before WILSON, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant, Jacqueline Struck, appeals the district
court’s grant of summary of judgment in favor of Defendant-Ap-
pellee Wal-Mart Stores East, LP (Walmart) on her negligence
claim. Struck was injured when she slipped and fell on a puddle of
water in a Walmart store. Struck argues that the district court
erred in granting summary judgment because the evidence pre-
sented showed that Walmart had actual or constructive notice of a
dangerous condition. We affirm the district court’s decision be-
cause Struck has not established a genuine issue of material fact as
to whether Walmart had notice of the dangerous condition, as re-
quired by Florida law.
I.
Because we write for the parties, we assume familiarity with
the facts and write only those necessary for the resolution of this
appeal. In her deposition, Struck testified that on September 28,
2015, she and a friend went shopping at Walmart for a few house-
hold items. According to her friend’s deposition, it was “pouring
down rain” that night. Struck further testified that while she and
her friend were shopping, she slipped and fell on a puddle of water.
Struck did not see the puddle prior to her accident.
Struck brought this negligence action against Walmart in
state court in July 2019 and Walmart removed the case to federal
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21-11012 Opinion of the Court 3
court. Struck alleged that Walmart failed to exercise ordinary and
reasonable care in maintaining the premises in a reasonably safe
condition. Central to her case is her evidence of Walmart’s roof
issues in 2015. The relevant issue before the district court was
whether Walmart knew, or had reason to know, that the roof was
leaking in the area of the store where Struck fell. The court found
that Walmart had neither actual nor constructive knowledge of the
leak giving rise to Struck’s accident. Therefore, the court granted
summary judgment in favor of Walmart.
On appeal, Struck argues that Walmart had actual
knowledge because there were reports of other leaks in the build-
ing. Specifically, she argues that Walmart did not need to have
knowledge of the specific puddle, but a general knowledge that the
roof leaked when it rained. In the alternative, she argues that the
size of the puddle and the regularity of the condition are circum-
stantial evidence of Walmart’s constructive knowledge. She also
contends that summary judgment was not appropriate because
Walmart created the dangerous condition by failing to maintain its
roof. Lastly, she argues that the district court erred in failing to
consider her expert’s opinion.
II.
“We review the district court’s ruling on a motion for sum-
mary judgment de novo, applying the same legal standards that
bound the district court.” Seamon v. Remington Arms Co., 813
F.3d 983, 987 (11th Cir. 2016). “Motions for summary judgment
should be granted only when the pleadings, depositions, answers
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4 Opinion of the Court 21-11012
to interrogatories, and admissions on file, together with the affida-
vits, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.”
Id. at 987–88. On a motion for summary judgment, we make all
reasonable inferences in the light most favorable to the non-mov-
ing party. Pennington v. City of Huntsville, 261 F.3d 1262, 1265
(11th Cir. 2001).
We apply the substantive law of the forum state in diversity
cases. Cadle v. GEICO Gen. Ins. Co., 838 F.3d 1113, 1121 (11th Cir.
2016). “Where the Supreme Court of Florida has not addressed a
particular issue, federal courts are then bound by the decisions of
the Florida district courts of appeal that address the disputed issue,
unless there is an indication that the supreme court would not ad-
here to the district court’s decision.” Geary Distrib. Co. v. All
Brand Imps., Inc., 931 F.2d 1431, 1434 (11th Cir. 1991) (per curiam).
To prevail on a claim for negligence under Florida law, a
plaintiff must show that: (1) the defendant owed a duty, (2) the de-
fendant failed to conform to that duty, (3) the defendant’s failure
to conform to that duty caused the plaintiff’s injury, and (4) the
plaintiff suffered some actual harm. Williams v. Davis, 974 So. 2d
1052, 1056 (Fla. 2007).
The relevant Florida statute on premises liability provides:
“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.”
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21-11012 Opinion of the Court 5
Fla. Stat. § 768.0755(1). “Constructive knowledge may be proven
by circumstantial evidence showing that: (a) [t]he dangerous con-
dition existed for such a length of time that, in the exercise of ordi-
nary care, the business establishment should have known of the
condition; or (b) [t]he condition occurred with regularity and was
therefore foreseeable.” Id. Actual knowledge of a dangerous con-
dition 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. Dist. Ct. App. 2001).
“Section 768.0755 specifically places the burden on the plain-
tiff to prove that the business establishment had constructive
knowledge of the hazard.” Oliver v. Winn-Dixie Stores, Inc., 291
So. 3d 126, 128 (Fla. Dist. Ct. App. 2020). While the plaintiff need
not prove constructive knowledge at the summary judgment stage,
if the defendant shows there are no disputed factual issues about its
constructive knowledge the burden shifts to the plaintiff to offer
counter-evidence sufficient to reveal a genuine issue. Id. at 129. In
addition, “the mere presence of water on the floor is not enough to
establish constructive notice.” Delgado v. Laundromax, Inc., 65
So. 3d 1087, 1090 (Fla. Dist. Ct. App. 2011). The record must con-
tain additional facts to create a permissible inference that the de-
fendant had constructive notice. Id.
III.
We turn first to whether Walmart had actual knowledge of
the puddle. In sum, Struck argues that Walmart had actual
knowledge of the puddle because they knew that their roof had
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6 Opinion of the Court 21-11012
leaks in it. She relies on a list of leaks that Walmart sent to a con-
tractor shortly after her accident as well as a report that the roof
was “failing” that was prepared after the accident. However,
knowledge of problems with the roof does not mean that Walmart
had actual knowledge of the puddle. Actual knowledge requires
that Walmart either knew about the puddle or created it. Barbour,
801 So. 2d at 957. There is nothing in the record that demonstrates
that any Walmart employee knew about the puddle before Struck
fell. Further, Struck does not provide any support that Walmart
had actual knowledge of the puddle in her brief; she merely tries to
show that Walmart’s knowledge of a leaky roof demonstrates ac-
tual knowledge of the puddle. Even at the summary judgment
stage, this is not sufficient evidence to show actual knowledge.
Struck argues that even if Walmart did not have actual
knowledge, they still had constructive knowledge of the puddle.
An injured party can establish constructive notice by showing ei-
ther: (1) that the dangerous condition existed for such a length of
time that the business owner should have known of its existence,
or (2) that the dangerous condition occurred with such regularity
that the business owner should have known of its existence. Fla.
Stat. § 768.0755(1).
Under the first method, Struck argues that the size of the
puddle is circumstantial evidence that it had existed long enough
for Walmart to reasonably know of its existence. However, the
problem with this argument is that the only evidence of the puddle
is a picture taken by Struck after she fell. No Walmart employee
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21-11012 Opinion of the Court 7
saw the puddle prior to Struck’s accident and Struck provided no
evidence of how long the puddle was there. Without this evidence
we cannot conclude that the “dangerous condition existed for such
a length of time” that Walmart had constructive knowledge of its
existence. See id.
Under the second method, Struck argues that we should ap-
ply our analysis in Doudeau v. Target Corp. and confirm that an
inference of constructive notice can arise from the store’s history
of wet floors in rainy conditions. 572 F. App’x 970 (11th Cir. 2014)
(per curiam). However, in Doudeau there was a specific finding
that the area of the store where the plaintiff fell was a known slip-
and-fall area. Id. at 972. There was no such finding here. The only
information on the area where Struck fell was that the roof above
that area had been repaired four months prior to her accident.
There is no evidence that Walmart was on notice that the roof in
this particular area was prone to leaks when it rained. Therefore,
Struck has not met her burden of showing that the condition oc-
curred with such regularity that Walmart had constructive
knowledge of its existence.
In addition to her negligence claim arising under Fla. Stat. §
768.0755, Struck argues that Walmart was also negligent by breach-
ing their duty to maintain the roof in a reasonably safe condition.
She argues that this is a separate common law cause of action from
a transitory foreign substance claim and does not require proof that
the defendant had knowledge of the condition. Struck’s arguments
fail for three reasons: (1) the cases she cites in support do not
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8 Opinion of the Court 21-11012
involve a slip and fall, (2) Florida no longer recognizes a separate
cause of action for negligent mode of operation, and (3) while
Walmart had a duty of reasonable care, Struck was still required to
prove Walmart breached that duty, which she failed to do.
Struck supports the argument that the duty to maintain is an
independent cause of action by citing two Florida cases, Knight v.
Waltman, 774 So. 2d 731 (Fla. Dist. Ct. App. 2000), and Wolford v.
Ostenbridge, 861 So. 2d 455 (Fla. Dist. Ct. App. 2003). However,
since neither case concerns the Florida statute on transitory foreign
substances, they are not applicable to this case.
Furthermore, the changes between the 2002 Florida statute
on transitory foreign substances and the current statute, enacted in
2010, highlight that the plaintiff must establish notice. Struck cites
to Delgado, where the Florida district court of appeal noted that
the negligent mode of operation theory was available to plaintiffs
under the 2002 Florida statute. 65 So. 3d at 1090. That statute spe-
cifically placed the burden on the plaintiff to prove the defendant
“acted negligently by failing to exercise reasonable care in the
maintenance, inspection, repair, warning, or mode of operation of
the business premises.” Fla. Stat. § 768.0710(2)(b) (repealed 2010).
Thus, there was specific language in the 2002 statute that allowed
for a negligent mode of operation claim. In contrast, the current
statute does not provide for a negligent mode of operation claim,
but instead requires the plaintiff to prove the defendant had
knowledge of a dangerous condition. Fla. Stat. § 768.0755(1). For
example, in Pembroke Lakes Mall Ltd. v. McGruder, the Florida
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21-11012 Opinion of the Court 9
district court of appeal concluded that, under the current statute, a
plaintiff in a slip-and-fall case can no longer assert a negligence
claim based on failure to exercise reasonable care in maintenance.
137 So. 3d 418, 426 (Fla. Dist. Ct. App. 2014).
Struck also argues that subsection (2) of § 768.0755 provides
that a plaintiff may bring a claim for negligent mode of operation.
That subsection provides that “[t]his section does not affect any
common-law duty of care owed by a person or entity in possession
or control of a business premises.” Fla. Stat. § 768.0755(2). We
interpret the plain meaning of that statute to mean that § 768.0755
does not alter the common law duty that premises owners owe to
their invitees, which is the duty “to exercise reasonable care to
maintain their premises in a safe condition.” Owens v. Publix Su-
permarkets, Inc., 802 So. 2d 315, 320 (Fla. 2001). However, to pre-
vail on a negligence claim, a plaintiff must also show that the de-
fendant’s conduct failed to conform with the legal duty. Williams,
974 So. 2d at 1056. To interpret the statute in the way Struck sug-
gests would allow for plaintiffs to prove the defendant breached
their duty without proving notice, which is at odds with the
amendment of Section 768.0755 to include a notice requirement.
Therefore, Struck’s argument that she can prevail on a negligent
mode of operation theory without proving notice is inconsistent
with the reading of the current Florida statute for slip-and-fall cases.
Accordingly, we reject Struck’s argument.
Lastly, Struck argues that the district court erred in ignoring
her expert’s opinion when ruling on the summary judgment
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10 Opinion of the Court 21-11012
motion. Struck contends that her expert’s opinion is relevant be-
cause it shows that Walmart violated the applicable standards of
care requiring a premises owner to maintain its roof and floor in a
reasonably safe condition. However, she does not address whether
this expert opinion offers any evidence as to whether Walmart had
notice of a dangerous condition, as required by the Florida statute.
Therefore, we cannot conclude that the district court erred in not
considering her expert’s opinion.
Because there is no genuine issue of material fact as to
whether Walmart had actual or constructive notice, the district
court properly granted summary judgment in its favor.
AFFIRMED.