USCA11 Case: 23-12982 Document: 35-1 Date Filed: 04/22/2024 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12982
Non-Argument Calendar
____________________
DEBORAH WEEKLEY,
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. 8:22-cv-01938-JSM-AAS
____________________
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2 Opinion of the Court 23-12982
Before JORDAN, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
Deborah Weekley appeals the district court’s grant of Wal-
Mart Stores East LP’s motion for summary judgment in her slip-
and-fall case. On appeal, Weekley argues that the district court
erred because there was a genuine issue of material fact that pre-
cluded judgment. We write only for the parties who are already
familiar with the facts. Accordingly, we include only such facts as
are necessary to understand our opinion.
“We review a district court’s decision on summary judg-
ment de novo and apply the same legal standard used by the district
court, drawing all inferences in the light most favorable to the non-
moving party and recognizing that summary judgment is appropri-
ate only where there are no genuine issues of material fact.” Smith
v. Owens, 848 F.3d 975, 978 (11th Cir. 2017).
Because this negligence case arose in Florida and is before us
on diversity jurisdiction, see 28 U.S.C. § 1332(a), we are required to
apply Florida’s substantive law, see Erie R.R. Co. v. Tompkins, 304
U.S. 64, 78 (1938). “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.” Geary Distrib. Co.
v. All Brand Imps., Inc., 931 F.2d 1431, 1434 (11th Cir. 1991).
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23-12982 Opinion of the Court 3
Under Florida law, a plaintiff must establish four elements
to sustain a negligence claim: (1) “the defendant owed a ‘duty, or
obligation, recognized by the law, requiring the [defendant] to con-
form to a certain standard of conduct, for the protection of others
against unreasonable risks’”; (2) “the defendant failed to conform
to that duty”; (3) there is “ ‘[a] reasonably close causal connection
between the [nonconforming] conduct and the resulting injury’ to
the claimant”; and (4) “some actual harm.” Williams v. Davis, 974
So. 2d 1052, 1056 (Fla. 2007) (alterations in original) (citation omit-
ted).
In Lago v. Costco Wholesale Corp., 233 So. 3d 1248, 1250 (Fla.
3d DCA 2017), the court stated that “in Florida Statutes section
768.0755 the legislature modified a business’s duties when its in-
vitees are injured by ‘transitory foreign substances.’” Indeed, in En-
carnacion v. Lifemark Hospitals of Florida, 211 So.3d 275, 278 (Fla. 3d
DCA 2017), the court stated that “proof of breach element of the
claim against an owner of the establishment is statutorily con-
strained” by the provision. That statute reads:
[i]f a person slips and falls on a transitory foreign sub-
stance in a business establishment, the injured person
must prove that the business establishment had actual
or constructive knowledge of the dangerous condi-
tion and should have taken action to remedy it. Con-
structive knowledge may be proven by circumstantial
evidence showing that:
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4 Opinion of the Court 23-12982
(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.
Fla. Stat. § 768.0755(1).
In Lago, the court affirmed the district court’s grant of sum-
mary judgment when the plaintiff brought suit alleging the store
had breached its duty as a business owner to maintain a safe prem-
ises. But the plaintiff testified that she did not see any liquid on the
ground before she fell, she did not know what the liquid was, and
she did not know how long it had been there. 233 So.3d at 1251-
52. Further, she had not seen any employee near the place where
she fell before or when she fell, which would go to the issue of ac-
tual knowledge. Id. at 1251. She also did not see anyone else fall
in the area where she fell. Id. at 1252. The court stated “[w]ithout
additional facts suggesting the liquid had been there for a long pe-
riod of time or this happened regularly, the trial court properly
granted summary judgment.” Id.
Here, the district court correctly addressed the issue of no-
tice as a threshold question and found that Weekley had not pro-
duced any evidence that Wal-Mart knew or should have known
about the presence of a liquid where she fell. And indeed, the only
evidence of a transitory foreign substance that Weekley points to
is a small wet spot on her buttocks she reported noticing while at
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23-12982 Opinion of the Court 5
the emergency room.1 No one at the site of the fall, including
Weekley’s granddaughter, could find any substance that she
slipped on. As the district court noted, in the five minutes before
the fall, twenty-nine customers walked through the area where she
fell without incident. And, a Wal-Mart employee inspected the
area within those five minutes. These facts support the district
court’s finding and it did not err when it granted Wal-Mart’s mo-
tion for summary judgment.
AFFIRMED.
1 Weekley argues, for the first time on appeal, that the surveillance video
shows a Wal-Mart employee mopping up something near where she fell and
that she walked through that area. She asserts that walking through that area
must have gotten her feet wet and caused her to fall two minutes later. Week-
ley did not raise this before the district court, denying it the opportunity to
rule on this theory. We will not address issues not raised before the district
court. Blue Martini Kendall, LLC v. Miami Dade Cnty., 816 F.3d 1343, 1349 (11th
Cir. 2016). Although she relies on our unpublished decision in Frasca v. NCL
(Bahamas) Ltd., 654 F. App’x 949 (11th Cir 2016), to challenge that rule, that
case is distinguishable. There, the plaintiff changed his theory of where the
water came from that caused the slippery deck from his complaint to his argu-
ment at the summary judgment stage. Id. at 955 n.6. By contrast, Weekley in
this case failed to raise her new issue in her complaint or response to the mo-
tion for summary judgment, denying the district court judge the opportunity
to decide the case on this new theory.