USCA11 Case: 23-10545 Document: 29-1 Date Filed: 10/06/2023 Page: 1 of 14
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10545
Non-Argument Calendar
____________________
ELENA ZHANADOVA,
Plaintiff-Appellant,
versus
WAL-MART STORES EAST, LP,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:21-cv-60668-RS
____________________
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2 Opinion of the Court 23-10545
Before BRANCH, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Elena Zhanadova appeals the district court’s order granting
summary judgment in favor of defendants Wal-Mart Stores, Inc.
and Wal-Mart Stores East, LP, (“Walmart”) in her “slip and fall”
negligence suit under Florida law. Zhanadova argues that the
district court erred in granting summary judgment because there
were disputed issues of material fact related to Walmart’s actual
notice of the spill and whether it had sufficient time to remedy the
dangerous condition. After review, we affirm.
I. Background
The events giving rise to this negligence action occurred
over less than a three-minute period on the evening of July 8, 2018,
at a Walmart in south Florida. That evening, at approximately
6:46:53 p.m. another Walmart customer spilled juices from a
rotisserie chicken container onto the floor at one of the self-
checkout registers. That customer finished checking out
approximately two minutes later at 6:48:56 p.m. A few seconds
later at 6:49:07 p.m., Zhanadova approached the same self-
checkout register and began checking out. Within approximately
20 seconds of being at the register, Zhanadova slipped and fell on
the chicken drippings. At the time that she fell, it is undisputed that
a Walmart employee was approaching her carrying paper towels,
presumably to clean up the spill.
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Thereafter, Zhanadova brought a multi-count negligence
action against Walmart and unnamed store managers of this
particular Walmart in Florida state court, seeking damages for
injuries that she suffered from the slip, including injuries to her
back and neck. In her complaint, she alleged that Walmart had a
duty to use ordinary care to keep the premises in a reasonably safe
condition for its patrons. She maintained that Walmart knew or
should have known about the dangerous condition and should
have taken the necessary steps to remedy the dangerous condition
or warn patrons of its existence. And as a direct and proximate
cause of Walmart’s negligence, she fell and suffered injuries.
Walmart removed the action to federal court based on diversity
jurisdiction.
Zhanadova explained during her deposition that on the day
in question she was at the self-checkout register in Walmart with a
friend, when she “heard some kind of yelling or some noise” similar
to shouting or yelling. Zhanadova, who does not speak English,
did not understand what was being said. Zhanadova looked up and
saw a Walmart employee “running toward [her]” from “far away
where the other [non-self-checkout] cash registers” were, and the
employee “was shouting something,” “waving,” and “holding
something white in her hand.” Zhanadova explained that she
could tell by the way the employee was approaching her and
waving at her that she was “trying to warn [Zhanadova] about
some kind of danger.” Zhanadova explained that she looked
around and realized that there were no other customers near her
and that they seemed to be avoiding the register area where
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Zhanadova was standing. Because people had moved away from
the area and a Walmart employee was running toward her yelling
something, Zhanadova became very scared. She stated that
another woman approached her from behind and was speaking to
her, but Zhanadova did not understand what the woman was
saying due to the language barrier. She stated that the woman
from behind took her hand and gently started pulling her
backwards, while pointing to the floor with her other hand.1
Zhanadova did not know whether or not the woman behind her
that pulled her backward was a Walmart employee, and she could
not say what the woman was wearing. Zhanadova stepped
backward and slipped and fell. Zhanadova did not see anything on
the floor before she slipped, and she maintained that “when [she] .
. . approached th[e] self-help register, everything there in that area
was dry and clean . . . .” After she fell, Zhanadova realized there
was “like an oily liquid” puddle on the floor. Zhanadova stated that
no Walmart employee told her not to go near the area where she
fell prior to the fall.
1 Although Zhanadova stated that a woman came behind her and took her
hand and pulled her backward gently, the video footage of the incident refutes
this statement. No one appears behind Zhanadova in the video or touches
her. Although at the summary judgment stage we view the evidence in the
light most favorable to the non-moving party, when, as here, the non-moving
party’s version of events is blatantly contradicted by video evidence in the
record, we do not accept the non-moving party’s version of events to the
extent of the contradiction. See Scott v. Harris, 550 U.S. 372, 380 (2007). Thus,
we do not accept Zhanadova’s statement that someone came up behind her
at the register and pulled her backward gently prior to her fall.
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Walmart moved for summary judgment, arguing that it was
entitled to summary judgment because Zhanadova could not show
that Walmart had actual or constructive knowledge of the
dangerous condition, which existed for only 2 minutes and 32
seconds prior to Zhanadova’s fall. Zhanadova opposed Walmart’s
motion for summary judgment, asserting that the CCTV footage
of her fall established that Walmart had actual knowledge of the
spill prior to her fall. 2 Specifically, she maintained that the video
established that three Walmart employees were aware of the spill
prior to her fall. First, she asserted that the spill occurred at 6:46:54
p.m. when another customer spilled liquid from a container of
chicken. Second she maintained that at 6:47:23 p.m. another
person outside of the view of the camera walked towards the spill.
Even though only the unknown individual’s shoes are visible in the
video, Zhanadova asserted that this person must have been a
Walmart employee and that the employee must have seen the spill
because the individual appeared to be carrying “a yellow rag.” But,
after walking towards the spill, the person retreats and disappears
from the camera’s view without taking any steps to clean the spill
or block off the area.
Next, she maintained that a second Walmart employee saw
the spill at 6:48:04 p.m., pointing to the fact that in the upper left
hand portion of the video “from the opposite side of the self-check-
2 Although Zhanadova briefly addressed constructive notice in her motion,
she maintained throughout the motion that this case was about Walmart’s
actual knowledge.
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6 Opinion of the Court 23-10545
out register” an arm appears to be pointing at something. She
contended that this arm must belong to a Walmart employee
because after Zhanadova’s fall, this same arm appears at 6:51:49
p.m. handing off a roll of paper towels to a fellow employee to
assist with cleanup.
And finally, she asserted that a third employee had actual
knowledge of the spill because as seen in the video the employee
approached Zhanadova seconds before the fall carrying a few paper
towels in her hand and waving toward Zhanadova. Thus, she
maintained that Walmart was liable for her injuries because it had
actual notice of the spill prior to her fall and should have taken steps
to correct it.
The district court granted Walmart’s motion for summary
judgment. The district court explained that only 2 minutes and 32
seconds elapsed between the time of the spill and Zhanadova’s fall,
and that Zhanadova relied solely on the video footage as proof that
three employees knew of the dangerous condition before she fell.
With regard to Zhanadova’s allegation that an employee observed
the spill at 6:47:23 p.m. prior to the fall, the district court concluded
that the video did not show that the individual was an employee as
the identity of the individual was not ascertainable from the shoes
and possible yellow rag that appeared in the corner of the video
frame. The court noted that Zhanadova, as the non-moving party,
had not presented any other evidence to support her claim that the
individual in question was in fact a Walmart employee. Moreover,
even if the individual was a Walmart employee, it was unknown
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23-10545 Opinion of the Court 7
from the video where the employee was looking such that the
person saw the spill. Thus, this first individual did not establish that
Walmart had actual knowledge of the spill.
Next, the district court addressed the alleged second
employee who purportedly observed the spill based on the arm
that appears to be pointing at something in the upper left corner of
the video frame prior to the fall. The court concluded that it could
not be ascertained from the video to whom the arm belonged or
that the arm was pointing to the spill as opposed to something else
in the store. Thus, Zhanadova failed to establish that Walmart had
actual knowledge of the spill via this second person.
As to the third person—the employee seen approaching
Zhanadova with paper towels in hand mere seconds before the
fall—the district court concluded that this employee demonstrated
that Walmart had actual notice of the condition at that point in
time. Nevertheless, Walmart was not liable under Florida law
because Walmart did not have a sufficient opportunity following
notice of the condition to correct it. In other words, because
Zhanadova did not point to any other evidence showing actual
notice of the spill prior to when the Walmart employee
approached her at 6:49:22 p.m., mere seconds before the fall,
Walmart did not have sufficient time to correct or warn of the
condition. Accordingly, the district court granted Walmart’s
summary judgment motion, and Zhanadova timely appealed.
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II. Discussion
Zhanadova argues that the district court erred in granting
summary judgment in favor of Walmart because the video footage
created a genuine issue of fact as to whether Walmart was on actual
notice of the spill, and the district court improperly weighed the
evidence at the summary judgment stage.
“We review a district court’s grant of summary judgment de
novo, view[ing] the evidence in the light most favorable to the non-
moving party.” Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121,
1134 (11th Cir. 2020) (en banc) (quotation omitted). “Although all
justifiable inferences are to be drawn in favor of the nonmoving
party, inferences based upon speculation are not reasonable.
Evidence that is merely colorable, or is not significantly probative
of a disputed fact cannot satisfy a party’s burden, and a mere
scintilla of evidence is likewise insufficient.” Kernel Records Oy v.
Mosley, 694 F.3d 1294, 1301 (11th Cir. 2012) (quotations and internal
citations omitted); see also Glasscox v. City of Argo, 903 F.3d 1207,
1213 (11th Cir. 2018) (“Conclusory allegations and speculation are
insufficient to create a genuine issue of material fact.”); Cordoba v.
Dillard’s Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (“Speculation
does not create a genuine issue of fact; instead, it creates a false issue,
the demolition of which is a primary goal of summary judgment.”
(emphasis in original) (quotation omitted)). “[A]n inference is not
reasonable if it is only a guess or a possibility, for such an inference
is not based on the evidence but is pure conjecture and
speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321,
1324 (11th Cir. 1982) (quotation omitted); see also Hinson v. Bias, 927
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F.3d 1103, 1115 (11th Cir. 2019) (“[A]n inference based on
speculation and conjecture is not reasonable.” (quotation
omitted)).
Summary judgment is proper if the evidence shows “that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986) (“Where the record taken as a whole could not lead
a rational trier of fact to find for the non-moving party, there is no
genuine issue for trial.” (quotation omitted)).
When, as here, federal jurisdiction over the negligence case
is founded on diversity, state law governs the substantive issues,
which in this case is Florida law. See ML Healthcare Servs., LLC v.
Publix Super Mkts., Inc., 881 F.3d 1293, 1299 (11th Cir. 2018). “[T]he
highest court of the state is the final arbiter of what is state law.
When it has spoken, its pronouncement is to be accepted by federal
courts as defining state law unless it has later given clear and
persuasive indication that its pronouncement will be modified,
limited or restricted.” West v. Am. Tel. & Tel. Co., 311 U.S. 223, 236
(1940). “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
adhere to the district court’s decision.” Sutton v. Wal-Mart Stores
East, LP, 64 F.4th 1166, 1168 (11th Cir. 2023) (quotation omitted).
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To prove a negligence claim, Florida law requires plaintiffs
to show “(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.” Encarnacion v. Lifemark Hosps. of Fla., 211
So. 3d 275, 277–78 (Fla. 3d DCA 2017) (quotation omitted). It is
undisputed that Zhanadova was a business invitee in Wal-Mart's
store, so it owed her “a duty to exercise reasonable care to maintain
[its] premises in a safe condition.” Id. Nevertheless, Wal-Mart “is
not an insurer of the safety” of its customers, and it is not “strictly
liable . . . for injuries resulting to invitees from dangerous
conditions on [its] premises[.]” Winn–Dixie Stores, Inc. v. Marcotte,
553 So. 2d 213, 214 (Fla. 5th DCA 1989).
Rather, where a business invitee slips and falls on a
“transitory foreign substance,” proof of the breach element of the
plaintiff’s negligence claim is “statutorily constrained” by Florida
statutory law. See Encarnacion, 211 So. 3d at 278. Specifically,
§ 768.0755 of the Florida Statutes requires the plaintiff to “prove
that the business establishment had actual or 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 establishment’s
employees or agents knew of the dangerous condition. Barbour v.
Brinker Fla., Inc., 801 So. 2d 953, 957 (Fla. 5th DCA 2001).
Zhanadova maintains that there was a genuine issue of fact
about when Walmart was on actual notice of the spill based on the
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alleged first employee (identified in the video only by shoes and a
partial view of what appears to be a yellow rag) and the alleged
second employee (identified in the video only by an arm that is
pointing toward something)—both of whom allegedly saw the spill
between 1 and 2 minutes prior to Zhanadova’s fall. Relatedly, she
argues that the district court improperly weighed the evidence
when determining whether her inferences from the video were
reasonable. She maintains that the video does not directly
contradict her version of events, and, therefore, her contentions
regarding the first and second employee in the video were
reasonable inferences.3
Zhanadova’s arguments are unpersuasive. Her contention
that these individuals in the video are Walmart employees is not a
reasonable inference because it is based solely on speculation and
conjecture. Hinson, 927 F.3d at 1115 (“[A]n inference based on
speculation and conjecture is not reasonable.” (quotation
omitted)); Daniels, 692 F.2d at 1324 (“[A]n inference is not
reasonable if it is only a guess or a possibility, for such an inference
is not based on the evidence but is pure conjecture and
speculation.” (quotation omitted)). She presented no other
evidence tending to show that the individual whose shoes are seen
in the video with what looks to be a yellow rag is a store employee.
Likewise, she presented no other evidence tending to show that the
3 Zhanadova also faults the district court for not considering her deposition
testimony. Zhanadova’s contention is belied by the record, as the district
court references her deposition testimony in the summary judgment order.
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individual whose arm appears in the video pointing toward
something is an employee. 4 At the summary judgment stage, “[i]t
is not enough for the nonmoving party to merely assert[] that the
jury might, and legally could, disbelieve the moving party’s
evidence. Instead, the nonmoving party must present affirmative[,
concrete] evidence that would allow a reasonable jury to rule for
[her].” Hinson, 927 F.3d at 1115–16 (quotation omitted).
Zhanadova failed to come forward with such affirmative, concrete
evidence. See also Kernel Records Oy, 694 F.3d at 1301 (explaining
that “a mere scintilla of evidence is likewise insufficient” to create
a genuine issue of material fact).
Furthermore, even assuming that Zhanadova is correct that
these individuals were Walmart employees, there is no evidence in
the video or otherwise in the record tending to demonstrate which
direction these individuals were looking. Therefore, even
assuming they were employees, it is not a reasonable inference that
they observed the spill and could have (or should have) taken
action to correct the spill or to warn her of its presence. Hinson,
927 F.3d at 1115; Daniels, 692 F.2d at 1324.
4 Zhanadova contends that the individual whose arm is pointing toward
something in the video must be an employee because “[t]he person to whom
the hand belongs” is subsequently seen providing a roll of paper towels to
another employee a few minutes after Zhanadova’s fall. But even assuming,
arguendo that the two arms (one left arm and one right arm) seen in the video
belong to an employee of Walmart, it is at best a guess and mere speculation
that the two arms seen in the camera approximately three and a half minutes
apart belong to the same employee.
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Rather, viewing all the evidence and reasonable inferences
in the light most favorable to Zhanadova, as the district court
found, the evidence establishes that Walmart was on actual notice
of the spill at 6:49:20 p.m. when the Walmart employee enters the
video frame carrying paper towels, which is approximately only
three seconds before Zhanadova’s fall.5 As the district court found,
under Florida law, this short amount of time is insufficient for
Walmart to remedy the dangerous condition or otherwise warn its
patrons of its existence, which means that Walmart cannot be held
liable for any negligence.6 See, e.g., Dominguez v. Publix Super
5 Zhanadova argues that the presence of paper towels in this employee’s hands
establishes that the employee already knew of the issue, and we agree that the
conclusion that the employee “already knew” of the spill necessarily follows
from the fact that the employee was carrying a few paper towels in her hand.
The problem for Zhanadova is that there is nothing in the record that tends to
show when that employee first became aware of the spill, and when the
employee was on notice of the dangerous condition is key to the negligence
inquiry. In other words, based on the record, we are left to speculate as to
when this employee was on notice of the spill, which is insufficient to survive
summary judgment. Glasscox, 903 F.3d at 1213 (“Conclusory allegations and
speculation are insufficient to create a genuine issue of material fact.”); see also
Cordoba, 419 F.3d at 1181 (“Speculation does not create a genuine issue of fact;
instead, it creates a false issue, the demolition of which is a primary goal of
summary judgment.” (quotation omitted)).
6 Zhanadova argues that the amount of time that a spill exists prior to a
customer’s fall is not dispositive and does not warrant granting summary
judgment, citing our unpublished decision in Perez-Brito v. Williams-Sonoma
Stores, Inc., 735 F. App’x 668 (11th Cir. 2018). Zhanadova’s argument is
unpersuasive. As an initial matter, Perez-Brito is an unpublished, non-binding
case. Patterson v. Ga. Pacific, LLC, 38 F.4th 1336, 1346 (11th Cir. 2022) (“Our
unpublished opinions are not precedential”; “they do not bind us or district
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Markets, Inc., 187 So. 3d 892, 893–94 (Fla. 3d DCA 2016) (holding
that grocery store was not liable for negligence where thirteen
seconds passed between the time the store employee heard the
bottle of detergent fall from the shelf and when the customer
slipped); Gaidymowicz v. Winn-Dixie Stores, Inc., 371 So. 2d 212, 214
(Fla. 3d DCA 1979) (holding that the grocery store was not liable
because it did not have a sufficient opportunity to correct the
dangerous condition where it had only one minute of actual notice
of the spill). Accordingly, the district court did not err in granting
summary judgment in favor of Walmart.
AFFIRMED.
courts to any degree.”). Regardless, in Perez-Brito, we acknowledged that the
length of time between actual notice and a fall is a relevant—although not
necessarily conclusive—consideration. Id. at 670. And although we held in
that case that the defendant had a sufficient opportunity to correct the
dangerous condition even though only a minute and a half passed between
the store’s actual notice and the customer’s fall, our holding was limited to the
specific factual circumstances of that case. The facts of Zhanadova’s case are
distinguishable, and Perez-Brito does not persuade us that summary judgment
was inappropriate here.