Shipman v. CP Sanibel, LLC

Filing 41

OPINION and ORDER denying defendant's 33 Motion for Summary Judgment. See Opinion and Order for details. Signed by Judge John E. Steele on 5/30/2019. (CMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RACHEL H. SHIPMAN,
Plaintiff,
v.

Case No:

2:18-cv-139-FtM-29UAM

CP SANIBEL, LLC,
Defendant.

OPINION AND ORDER
This matter comes before the Court on the defendant’s Motion
for Summary Judgment (Doc. #33) filed on April 1, 2019.

Plaintiff

filed a Response (Doc. #35) on April 8, 2019, and defendant filed
a Reply (Doc. #39) on April 29, 2019.

For the reasons set forth

below, the motion is denied.
I.
Summary

judgment

is

appropriate

only

when

the

Court

is

satisfied 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.”

Fed. R. Civ. P. 56(a).

“An issue of fact is ‘genuine’ if

the record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.”

Baby Buddies, Inc. v. Toys “R” Us,

Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).

A fact is “material”

if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

“A

court must decide ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.’”
Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th
Cir. 2004)(citing Anderson, 477 U.S. at 251).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party.

Scott v. Harris, 550 U.S. 372, 380 (2007); Tana

v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).

However, “if

reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198
F.3d 815, 819 (11th Cir. 1999)(quoting Warrior Tombigbee Transp.
Co.

v.

M/V

Nan

Fung,

695

F.2d

1294,

1296-97

(11th

Cir.

1983)(finding summary judgment “may be inappropriate even where
the parties agree on the basic facts, but disagree about the
factual inferences that should be drawn from these facts”)).

“If

a reasonable fact finder evaluating the evidence could draw more
than one inference from the facts, and if that inference introduces
a genuine issue of material fact, then the court should not grant
summary judgment.”

Allen v. Bd. of Pub. Educ., 495 F.3d 1306,

1315 (11th Cir. 2007).

2

II.
On March 2, 2018, plaintiff Rachel H. Shipman (Plaintiff)
filed a single-count First Amended Complaint against defendant CP
Sanibel, LLC (Defendant).1

The First Amended Complaint asserts a

negligence claim against Defendant based upon an incident where
Plaintiff slipped and fell while on Defendant’s property.
The undisputed facts are as follows: Defendant owns and
operates the Sanibel Harbour Marriott Resort & Spa (the Resort).
(Doc. #33, ¶ 1; Doc. #2, ¶¶ 1-3.)

On June 22, 2016, plaintiff

Rachel H. Shipman (Plaintiff) was at the Resort to teach classes
in

an

“Aquatic

Symposium).

Therapy

and

Rehab

Institute

(Doc. #33, ¶ 2; Doc. #33-1, p. 34.)

Symposium”

(the

As a Symposium

instructor, Plaintiff taught classes at a pool located on the
Resort property.

(Doc. #33-1, p. 34.)

Adjacent to the pool is an

outdoor, covered area (the Lounge), which can be described as an
“outside lobby area” or an “open-air lounge.”
Doc. #35, p. 3.)

(Doc. #33, ¶¶ 3-4;

The Lounge has tiled floor, and there are sofas

and chairs in the Lounge where guests can congregate.

(Doc. #33-

4, p. 14; Doc. #35, p. 2.)

Plaintiff initially filed the First Amended Complaint in
the Circuit Court of the Twentieth Judicial Circuit in and for Lee
County Florida. (Doc. #2.) Defendant has since removed the First
Amended Complaint to this Court on the basis of diversity
jurisdiction. (Doc. #1.)
1

3

On June 22, 2016, after the conclusion of a Symposium class
in the pool, Plaintiff remained near the pool and conversed with
a Symposium participant, while other class participants exited the
pool and gathered in the Lounge.
74-75.)

(Doc. #33, ¶ 12; Doc. #33-1, pp.

Plaintiff eventually entered the Lounge area, where

Plaintiff slipped and fell on water that had accumulated on the
Lounge tile floor. (Doc. #33, ¶¶ 13-15; Doc. #35, p. 3.) Plaintiff
did not recall seeing water on the floor when she was in the Lounge
before her Symposium class, and “[n]o rain . . . was observed in
the hours preceding the incident.”

(Doc. #33, ¶¶ 8-9; Doc. #33-

1, p. 84.)
There is a permanent sign at the entrance to the Lounge, which
states, “Please towel off before walking on tile.”
pp. 13-14; Doc. #35, p. 8.)

(Doc. #33-4,

That sign was present on the day

Plaintiff fell. (Id.) Ricardo Coca (Mr. Coca), the Resort’s front
office supervisor on the day of the incident, responded to the
scene after Plaintiff fell.

(Doc. #33-4, p. 10; Doc. #35, p. 6.)

Mr. Coca testified at deposition that there is a “wet floor” sign
in the Lounge “almost every time . . . [t]o warn guests that the
floor might be wet.”

(Doc. #33-4, pp. 11-12; Doc. #35, p. 7.)

When asked at deposition whether the “wet floor” sign is also
displayed to warn guests that the Lounge tile “might be slippery
when wet,” Mr. Coca responded by stating, “Yes.”
13; Doc. #35, p. 7.)

(Doc. #33-4, p.

Mr. Coca further testified that the “wet

4

floor” sign was not present on the day Plaintiff fell in the
Lounge.

(Doc. #33-4, p. 12.)

Defendant

retained

“civil/structural

David

engineer,”

A.
to

evaluation” of the Lounge tile.

Roberts
conduct

(Mr.
a

Roberts),

“slip

(Doc. #33-3.)

a

resistance
Mr. Roberts

concluded in his report that the Lounge tile is “not . . . a nonslip surface and/or slip-resistant surface in the wet condition,”
but that the Lounge tile “would not be inherently dangerous (in
the wet condition).”

(Id. p. 5.)
III.

Defendant

now

negligence claim.
judgment

because

moves

for

summary

judgment

on

Plaintiff’s

Defendant argues it is entitled to summary
the

undisputed

facts

demonstrate

that

(1)

Defendant had no knowledge of the alleged dangerous condition on
its property; (2) Defendant did not breach its duty to maintain
its premises in a reasonably safe condition; and (3) the alleged
dangerous condition on Defendant’s property was open and obvious
to Plaintiff.
A.

The Court will address each point in turn below.

Negligence Principles under Florida Law
Under Florida law, a negligence action is comprised of four

elements: (1) a duty owed by the defendant to the plaintiff; (2)
breach of that duty; (3) a causal connection between defendant’s
breach and plaintiff’s injury; and (4) damages.

5

Clay Elec. Co-

op., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003).2

In the

premises liability context, a business owner owes two duties to
its business invitees3: “(1) a duty to warn of perils that were
known or should have been known to the owner and which the invitee
could not discover; and (2) a duty to take ordinary care to keep
its

premises

reasonably

safe.”

Denson

v.

SM-Planters

Walk

Apartments, 183 So. 3d 1048, 1050 (Fla. 1st DCA 2015).
To establish the breach element in a premises liability action
where a plaintiff falls on a transitory foreign substance in a
business establishment, the plaintiff must prove:
that
the
business
establishment
had
actual
or
constructive knowledge of the dangerous condition and
should have taken action to remedy it. Constructive
knowledge may be proven by circumstantial evidence
showing that:
(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

This analysis is governed by Florida law because “a federal
court sitting in diversity jurisdiction applies the substantive
law of the forum state . . . .” Tech. Coating Applicators, Inc.
v. U.S. Fid. & Guar. Co., 157 F.3d 843, 844 (11th Cir. 1998).
2

Plaintiff was a business invitee while on Defendant’s
premises. See Smith v. Dade Cty./Seaport Dep't, 785 So. 2d 1250,
1251 (Fla. 3d DCA 2001)(A business invitee “is a person who is
invited to enter or remain on land for a purpose directly or
indirectly connected with business dealing [of] the possessor of
the land. (quotation and citations omitted)).
3

6

(b)

The condition occurred with regularity and was
therefore foreseeable.

Fla. Stat. § 768.0755.
To survive a motion for summary judgment in a premises
liability action:
a plaintiff must show sufficient facts, taken as true,
to create a genuine issue of material fact that the party
in control of the premises owed a duty of reasonable
care to the plaintiff; that the defendant breached the
duty of care (and had actual or constructive knowledge
of the existence of the breach or dangerous condition
when moving under section 768.0755); and that the
defendant's breach was the legal cause of the
plaintiff's injuries or damages.
Feris v. Club Country of Fort Walton Beach, Inc., 138 So. 3d 531,
534 (Fla. 1st DCA 2014).

Thus, a plaintiff may not avoid summary

judgment based upon “the mere happening of [the] accident alone.”
Cooper Hotel Servs., Inc. v. MacFarland, 662 So. 2d 710, 712 (Fla.
2d DCA 1995).
B.

Whether Defendant had Knowledge of the Alleged Dangerous
Condition
Defendant asserts the undisputed facts demonstrate that it

had

no

knowledge

property.

of

the

alleged

dangerous

condition

on

its

The Court disagrees.

Under Florida law, constructive knowledge of a dangerous
condition may be inferred in a slip-and-fall case by either (1)
“the amount of time a substance has been on the floor” or (2) “the
fact that the condition occurred with such frequency that the owner

7

should have known of its existence.”

Delgado v. Laundromax, Inc.,

65 So. 3d 1087, 1090 (Fla. 3d DCA 2011).

As to this issue, a

genuine issue of material fact exists when “[t]he evidence . . .
together with all reasonable inferences [] could support a finding
that” Defendant had “constructive [knowledge] of the substance on
the floor of the [Lounge].”

Thompson v. Poinciana Place Condo.

Ass'n, Inc., 729 So. 2d 457, 458 (Fla. 4th DCA 1999).
Here, it is undisputed that there is a permanent sign at the
entrance to Lounge from the pool area, which states, “Please towel
off before walking on tile.”
8.)

(Doc. #33-4, pp. 13-14; Doc. #35, p.

In addition, it is undisputed that Mr. Coca testified that

“almost every time” there is a “wet floor” sign in the Lounge “[t]o
warn guests that the floor might be wet” and slippery.
4, pp. 11-12; Doc. #35, p. 7.)

(Doc. #33-

It is further undisputed that Mr.

Coca testified that the “wet floor” sign was not present on the
day that Plaintiff slipped and feel in the Lounge.
p. 12.)

(Doc. #33-4,

In light of this evidence, the Court finds there is an

issue of material fact as to whether Defendant had constructive
knowledge of the water on the Lounge tile, because the evidence in
this case could support an inference that water on the Lounge floor
“occurred with such frequency that [Defendant] should have known
of its existence.”

Delgado, 65 So. 3d at 1090; Thompson, 729 So.

2d at 458.

8

C.

Whether

Mr.

Roberts’

Report

Establishes

that

Defendant

Maintained its Premises in a Reasonably Safe Condition
Defendant agues it satisfied its duty to maintain its premises
in a reasonably safe condition because, according to Mr. Roberts’
report, the Lounge tile “would not be inherently dangerous (in the
wet condition).”

(Doc. #33-3, p. 5.)

The Court disagrees.

While Mr. Roberts did indeed conclude that the Lounge tile
would not be “inherently dangerous” when wet, Mr. Roberts also
concluded that the Lounge tile is not “a non-slip surface and/or
slip-resistant surface in the wet condition.”

(Id.)

Because the

Lounge tile, which is not slip-resistant in the wet condition, was
located adjacent to the pool, where Plaintiff and other guests
congregated

after

exiting

the

pool,

a

jury

could

reasonably

conclude that Defendant breached its duty to maintain its premises
in reasonably safe condition by placing such tile in the Lounge
area.

See Lombard v. Exec. Elevator Serv., Inc., 545 So. 2d 453,

455 (Fla. 3d DCA 1989)(noting that “summary judgment . . . should
be applied with special caution in negligence actions where the
showing of negligence is dependent on expert testimony (citation
omitted)); see also Slaats v. Sandy Lane Residential, LLC, 59 So.
3d 320, 321 (Fla. 3d DCA 2011)(As a general principle under Florida
law, summary judgment is inappropriate “[i]n premises liability
actions [] where . . . differing inferences from the facts exist.”
(citations omitted)).

9

D.

Whether the Alleged Dangerous Condition in the Lounge was
Open and Obvious
Defendant lastly argues that, assuming the water on the Lounge

tile constitutes a dangerous condition, that dangerous condition
was open and obvious to Plaintiff.

The Court disagrees.

Under Florida law, the obvious danger doctrine provides that
a landowner “is not liable for injuries to an invitee caused by a
dangerous condition on the premises when the danger is known or
obvious to the injured party . . . .”

Aaron v. Palatka Mall,

L.L.C., 908 So. 2d 574, 576 (Fla. 5th DCA 2005)(citation omitted).
However, this protection does not extend to situations where the
landowner “should anticipate the harm despite the fact that the
dangerous condition is open and obvious.”

Id.

To determine

whether the obvious danger doctrine applies, a court must “consider
all of the facts and circumstances surrounding the accident and
the alleged dangerous condition.”

TruGreen LandCare, LLC v.

LaCapra, 254 So. 3d 628, 631 (Fla. 5th DCA 2018).
Here,

Plaintiff

has

submitted

evidence

that

Defendant

ordinarily displays a “wet floor” sign in the Lounge, but did not
have that sign on display the day that Plaintiff slipped and fell.
Thus, even assuming the alleged dangerous condition in the Lounge
was open and obvious to Plaintiff, there is an issue of material
fact as to whether Defendant should have warned Plaintiff of the
condition in the Lounge, because the evidence could reasonably be

10

interpreted

to

support

a

finding

that

Defendant

should

have

anticipated the danger that water on the Lounge tile poses. Aaron,
908 So. 2d at 576.

Further, and related to the analysis of Mr.

Roberts’ conclusions discussed supra, this creates an issue of
material fact as to whether Defendant breached its duty to maintain
its premises in a reasonably safe condition by placing the Lounge
tile, which is not slip-resistant in the wet condition, in an area
adjacent to the pool.

De Cruz-Haymer v. Festival Food Mkt., Inc.,

117 So. 3d 885, 888 (Fla. 4th DCA 2013)(When a plaintiff alleges
that a landowner failed “to keep the premises in a reasonably safe
condition, an issue of fact is generally raised as to whether [the
landowner] . . .

should have anticipated that the dangerous

condition would cause injury despite the fact it was open and
obvious.” (citation and quotation omitted)); Fenster v. Publix
Supermarkets, Inc., 785 So. 2d 737, 739 (Fla. 4th DCA 2001)(“A
plaintiff's knowledge of a dangerous condition . . . raises the
issue of comparative negligence and precludes summary judgment.”
(citation omitted)).
For the foregoing reasons, the Court finds that genuine issues
of

material

fact

preclude

the

entry

of

summary

judgment.

Defendant’s motion is therefore denied.
Accordingly, it is now
ORDERED:
Defendant’s Motion for Summary Judgment (Doc. #33) is DENIED.

11

DONE AND ORDERED at Fort Myers, Florida, this
May, 2019.

Copies: Counsel of record

12

30th

day of