TRIAL COURT ERRED IN DENYING DEFENDANT PUBLIX’S MOTION FOR DIRECTED VERDICT, WHERE THERE WAS NO EVIDENCE ESTABLISHING THE DEFENDANT EITHER HAD ACTUAL NOTICE OF A DANGEROUS CONDITION, OR THAT DEFENDANT’S EMPLOYEE CAUSED A DANGEROUS CONDITION IN A SLIP AND FALL CASE–JURY MAY NOT STACK INFERENCES TO DETERMINE ACTUAL KNOWLEDGE OF A DANGEROUS CONDITION AND THE MERE POSSIBILITY OF CAUSATION IS NOT SUFFICIENT TO ESTABLISH LIABILITY.

Publix Super Markets v. Bellaiche, 43 Fla. L. Weekly D673 (Fla. 3rd DCA March 28, 2018):

A couple was shopping at Publix and after arriving at the checkout counter, the wife realized she had forgotten a couple of items that she wanted. She sent her husband to retrieve the items. He decided to pick up a few other things, and also ordered a sandwich from the deli. When he finally returned to the checkout aisle, his wife was sitting in a chair crying.

The husband testified that when he returned, he saw a man with a mop in his hand but did not know what the man was doing. The husband learned that after he had left to go get the forgotten items, his wife left her cart next to the cashier and started walking up a nearby aisle to find him because he was taking so long. While walking up the aisle, the wife plaintiff slipped and fell on some water which she did not see.

The plaintiff asserted that after falling, she subsequently saw a Publix employee with a mop in his hand. However, no one testified that the mop was wet or that the employee had been using it either in that aisle, or anywhere else in the store. Additionally, at the time of the plaintiff’s fall, Publix’s store manager testified that Publix had used dry rayon mops to mop its floors, and not presoaked cotton mops that could create puddles of water. The manager also testified that the only custodian on duty at the time of the incident whose duty it was to mop, was shown only to be using a broom and dust pan before the woman’s fall (on the video surveillance).

Plaintiff suffered a shoulder injury which necessitated surgery. After a second fall unrelated to this case, she was advised to attend physical therapy, but did not do so. Several years after the fall, she had a constrained range of motion and increased pain, but it was not determined whether her increased pain was due to the subsequent fall or the fall at Publix.

The jury returned a verdict for the 70-year-old Plaintiff for $1.5 million. The jury had awarded the woman $60,000 in past medical expenses, $500,000 in past pain and suffering and $1,000,000 in future pain and suffering.

On appeal, Publix claimed the trial court erred in denying its motion for directed verdict regarding its actual knowledge of the dangerous condition that caused the plaintiff’s fall. Pursuant to section 768.0755, the plaintiff was required to prove that Publix had actual or constructive knowledge of the dangerous condition created by a transient foreign substance. However, at trial, the plaintiff maintained she was not proceeding under a theory of constructive knowledge; only on a theory of actual knowledge because “the man standing with the mop” had caused the water to be on the floor.

The court observed that the plaintiff’s testimony was that after she fell, she saw a man holding a mop and that he was standing there and doing nothing more. The court found that this required a stacking of inferences for the jury to determine that defendant had actual knowledge of a dangerous condition, and further opined that a mere possibility of causation is not sufficient to establish liability.

The court found there was no evidence that Publix had actual knowledge of the dangerous condition, which was presumably water on the floor, based on her testimony that her pants were wet. The only evidence that the plaintiff presented to support her position that Publix had actual knowledge, was that she saw a man holding a mop standing in front of her after her fall.

However, the video evidence demonstrated that the only janitor on duty at the time had not been using anything other than a broom and dust pan to clean. Not one person testified that the mop that the man was holding was wet. In fact, the Publix store manager testified that his store uses dry rayon mops to spot mop its floors. At best, the court found a reasonable jury could have only arrived at a verdict for the plaintiff by stacking inferences drawn from purely circumstantial evidence which it is not allowed to do.

Because of the reversal, the motion for remittitur was not addressed by the court.