Contreras v. Walmart Stores East, LP

Filing 53

ORDERED: Defendant's Motion for Final Summary Judgment (Doc. 42) is GRANTED. The Clerk is DIRECTED to enter judgment, terminate all pending motions or deadlines, and close the file. Signed by Judge Sheri Polster Chappell on 11/22/2024. (AEH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BRENDA PABLO CONTRERAS,
Plaintiff,
v.

Case No.: 2:23-cv-208-SPC-NPM

WAL-MART STORES EAST, L.P.,
Defendant.
OPINION AND ORDER
Before the Court are Defendant Walmart Stores East, L.P.’s Motion for
Final Summary Judgment (Doc. 42), Plaintiff Brenda Pablo Contreras’s
response in opposition (Doc. 50), and Defendant’s reply (Doc. 52). For the
following reasons, the Court grants summary judgment.
BACKGROUND 1
This is a slip and fall case. In May 2020, Plaintiff entered Defendant’s
liquor store in Naples, Florida without issue. She saw nothing on the sidewalk
on her way into the store. Plaintiff was in the store between five and fifteen
minutes and purchased three or four bottles, which she carried out in a bag.
As she left the store, Plaintiff looked toward her car, slipped on a “purplish
brownish” substance with “little tiny seeds in it” on the sidewalk, and fell to
1 All citations to docketed materials are to the document and page numbers in the CM/ECF

header, which sometimes differ from a document’s internal pagination.

the ground. She saw nothing on the sidewalk just before she fell. Nor did
Plaintiff know what the substance was, where it came from, how long it had
been on the sidewalk before she fell, or its temperature. She also did not have
a shopping cart when she fell. Defendant’s employees photographed the scene
after Plaintiff reported it but before cleaning the area.
According to Defendant’s policies and procedures, its employees are
trained and tasked with inspecting and maintaining the premises—including
the sidewalks—on an ongoing basis. Additionally, members of management
perform exterior tours at least three times a day to ensure that the parking lot
and sidewalk are well maintained.
Christian Tecuanapa, a Walmart cart pusher at the time of Plaintiff’s
fall, completed training on Defendant’s policies and procedures when he was
hired. His training included how to maintain and ensure a safe, clean parking
lot and sidewalk and to immediately report any spill or substance he saw.
Tecuanapa was getting carts near the incident area approximately
twenty minutes before Plaintiff slipped and fell and did not see the substance
on the sidewalk. When Plaintiff fell, Tecuanapa was outside the store on his
break. He could see the location where Plaintiff fell, but he did not see her fall
or the substance on the ground.

2

LEGAL STANDARD
Sitting in diversity, the Court applies Florida substantive and federal
procedural law. Global Quest, LLC v. Horizon Yachts Inc., 849 F.3d 1022, 1027
(11th Cir. 2017). “The court shall grant summary judgment if the movant
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). A fact is
“material” if it “might affect the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a material fact
is in genuine dispute “if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Id.
The moving party bears the initial burden to show the lack of genuinely
disputed material fact. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir.
2008). If carried, the burden shifts to the nonmoving party to point out a
genuine dispute. Boyle v. City of Pell City, 866 F.3d 1280, 1288 (11th Cir.
2018). At this stage, a court views all facts and draws all reasonable inferences
in the light most favorable to the nonmoving party. Rojas v. Florida, 285 F.3d
1339, 1341–42 (11th Cir. 2002).
An inference deduced from the evidence must be “reasonable” to create
a genuine dispute of material fact. Berbridge v. Sam’s E., Inc., 728 F. App’x
929, 932 (11th Cir. 2018) (citing Daniels v. Twin Oaks Nursing Home, 692 F.2d
1321, 1326 (11th Cir. 1982)). To be reasonable, the inference needs to be more
3

than “a guess or mere possibility.” Id. Florida state courts guard against
unreasonable inferences by prohibiting “inference stacking,” the practice of
making an inference “which has been superimposed upon an initial inference
supported by circumstantial evidence.” Little v. Publix Supermarkets, Inc., 234
So. 2d 132, 134 (Fla. Dist. Ct. App. 1970) (citing Voelker v. Combined Ins. Co.
of Am., 73 So. 2d 403 (Fla. 1954)).

While federal courts do not prohibit

inference stacking, 2 the more inferences are stacked upon one another, the less
likely the conclusion is that “reasonable and fair-minded [people] in the
exercise of impartial judgment might draw from the evidence.” Daniels, 692
F.2d at 1326.
DISCUSSION
Slip and falls are a form of negligence, so a plaintiff must show duty,
breach, causation, and damages. Oliver v. Winn-Dixie Stores, Inc., 291 So. 3d
126, 128 (Fla. Dist. Ct. App. 2020). A business owes an invitee two duties: (1)
to keep the premises reasonably safe; and (2) to warn of dangers the business
knew (or should have known) about that the invitee couldn’t discover. Norman
v. DCI Biologicals Dunedin, LLC, 301 So. 3d 425, 428 (Fla. Dist. Ct. App. 2020).
In a premises liability case, a business must have “actual or constructive

2 Berbridge, 728 F. App’x at 932 (explaining that while federal courts are not bound to apply

state law rules against inference stacking, state court decisions on summary judgment “may
still be highly informative” and “[federal courts] aim to reach the same result that the Florida
courts would reach based on the same facts”).
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knowledge of the dangerous condition.” Fla. Stat. § 768.0755(1). The burden
is on the plaintiff to make that notice showing. Encarnacion v. Lifemark
Hosps. of Fla., 211 So. 3d 275, 278 (Fla. Dist. Ct. App. 2017).
A.

Actual Notice
Actual notice of a dangerous condition 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). “When the
negligence which produces the injury is that of an employee of the defendant,
then the matter of the employer’s knowledge of the existence of the dangerous
condition becomes inconsequential because the knowledge of the employee is
chargeable against the employer and his negligent act committed in the course
of his employment is binding upon the employer.” Id.
Defendant asserts “there is no record evidence that Walmart, or any of
its employees, caused the condition to be on the floor or knew that it was
present at any time before the incident.” (Doc. 42 at 12). By contrast, Plaintiff
vaguely argues “[t]he facts set forth above present multiple scenarios that
create a question of fact as to whether . . . Walmart had constructive or perhaps
actual notice of the substance’s existence.” (Doc. 50 at 16 (emphasis added)).
And Plaintiff argues Tecuanapa “either did see the substance and failed to
appreciate it, or certainly should have seen the substance[.]” (Id. at 2).

5

Plaintiff’s assertions fall short. Fatal to her argument, she points to no
evidence that Defendant or its employees caused the substance to spill on the
sidewalk or knew it was there before she fell. There is no evidence that
Tecuanapa ever saw the substance that caused Plaintiff’s fall. (Doc. 42-4 at
65, 69). To the contrary, Tecuanapa testified that when he was retrieving
carts, he was close enough that he would have seen the substance if it had been
there. (Id. at 67). He testified that he did not see anything on the concrete
then. (Id.) He also testified that he did not remember seeing the substance on
the ground later when he was outside on his break. (Id. at 77–78). In sum,
Plaintiff does not present evidence from which a reasonable jury could infer
Defendant had actual notice.
B.

Constructive Notice
That said, Plaintiff need not prove Defendant knew about the substance

because notice may be inferred through constructive knowledge under the
right circumstances. See Berbridge, 728 F. App’x at 930. A plaintiff can
establish constructive notice with circumstantial evidence that either: (1)
“[t]he 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 (2) “[t]he condition occurred with regularity and was therefore
foreseeable.” Fla. Stat. § 768.0755(1)(a)–(b). The evidence offered in support
may be direct or circumstantial. Id.
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Plaintiff does not argue Defendant regularly had spills on the sidewalk,
so the Court does not address that theory. Thus, to prevail, Plaintiff must show
Defendant had constructive notice of the substance because of the length of
time it was on the ground before her fall. Plaintiff tries to do so through
evidence of the condition of the substance, Tecuanapa’s proximity to the
substance, and Defendant’s alleged violation of its policies. 3

The Court

analyzes each argument in turn.
1.

Condition of the Substance

“The mere presence of the substance is not enough to establish
constructive notice.” Sutton v. Wal-Mart Stores E., LP, 64 F.4th 1166, 1169
(11th Cir. 2023) (internal quotation marks omitted) (quoting Delgado v.
Laundromax, Inc., 65 So. 3d 1087, 1090 (Fla. Dist. Ct. App. 2011)). “So, in the
absence of direct evidence, Florida law requires that the plaintiff introduce
circumstantial evidence of additional facts showing that the substance had
been on the ground for an extended period before the slip-and-fall to survive
summary judgment.” Id. (cleaned up).
Evidence of “signs of age” like “dirt, scuffing, or tracks in a substance”
can suffice. Berbridge, 728 F. App’x at 930 (citations omitted). Courts often
3 Plaintiff also tries to show constructive notice through evidence of how the substance ended

up on the ground. (Doc. 50 at 12). But her argument is based purely on Tecuanapa’s
speculation (Doc. 42-4 at 52–53), which is insufficient at the summary judgment stage. See
Espinoza v. Target Corp., 843 F. App’x 168, 172 (11th Cir. 2021). The Court discusses this
theory no further.
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refer to such evidence as “plus” facts. See, e.g., Carpio v. W. Beef of Fla., LLC,
384 So. 3d 192, 194 (Fla. Dist. Ct. App. 2024); see also Welch v. CHLN, Inc.,
357 So. 3d 1277, 1279 (Fla. Dist. Ct. App. 2023) (evidence that plaintiff fell in
“quite a bit” of “dirty,” “murky,” and “slimy” water that was of a “large amount”
and had footprints “going in different directions” was sufficient to constitute a
“plus” and preclude summary judgment); Norman, 301 So. 3d at 427, 430–31
(Fla. Dist. Ct. App. 2020) (finding plaintiff’s testimony that he slipped in “a cup
of water” that had “dirty” and “muddy footprints” was sufficient to satisfy the
“plus” factor and preclude summary judgment).
It is undisputed that Plaintiff does not know what the substance was,
where it came from, or how long it was on the ground before she fell. (Doc. 42
at 4). Plaintiff testified that she did not see anything on the sidewalk five to
fifteen minutes earlier when she walked into the liquor store. (Doc. 42-1 at
39). Twenty minutes before Plaintiff slipped, Tecuanapa saw no substance on
the ground. (Doc. 42-4 at 67).
So Plaintiff relies on evidence of shopping cart tracks through the
substance to show that it was on the ground for a sufficient amount of time.
(Doc. 50 at 10–12). For support, she cites testimony from Raidel Mendez, who
is Defendant’s corporate representative, and Tecuanapa.

(Id. at 11–12).

Mendez stated that based on his review of photographs of the substance, it
appeared as though a shopping cart was pushed through the substance “and
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then a slip.” (Doc. 42-3 at 51). Tecuanapa also reviewed photographs from the
scene. He observed that a cart passed through the substance, and someone
stepped in it and slipped. (Doc. 42-4 at 50). Finally, Plaintiff states in an
affidavit that the substance was “dry around the edges but wet in the middle.”
(Doc. 50 at 12; Doc. 50-4 at 2).
The Court is unpersuaded. “[T]he mere existence of plus facts is not
dispositive to the issue as their existence must allow a jury to infer that the
condition existed for a length of time sufficient to establish constructive notice
without assuming other facts.” Leftwich v. Wal-Mart Stores E., LP, No. 5D222821, 2024 WL 716972, at *2 (Fla. Dist. Ct. App. Feb. 22, 2024) (internal
quotation marks and citation omitted).

Here, both deponents’ testimony

confirms the undisputed existence of the track marks but reveals nothing
about when they were made.
And, in any event, Plaintiff’s testimony undermines her argument. After
Plaintiff slipped, she put the bottles in her car before going into the store to
report her fall to Defendant, leaving the substance unattended. (Doc. 42-1 at
48). Notably, Plaintiff testified that she did not have a shopping cart with her
at the time of her fall, push a cart through the substance, or see the track
marks before she went back into the store. (Id. at 39, 71–72). Once Plaintiff
alerted Defendant that an incident had occurred, employees placed a cart over
the substance to prevent another incident. (Id. at 72). Based on Plaintiff’s
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testimony, it is not reasonable to believe the tracks preceded her fall. Thus,
the Court agrees with Defendant that Plaintiff cannot point to the track marks
in the photograph to impute constructive notice upon Defendant.
Finally, the Court turns to Plaintiff’s affidavit.

A plaintiff may

demonstrate constructive notice by identifying evidence that the substance
was drying or had changes in consistency. See Palavicini v. Wal-Mart Stores
E., LP, 787 F. App’x 1007, 1012 (11th Cir. 2019) (examples of evidence that can
impute constructive notice include footprints, prior track marks, changes in
consistency, or drying of liquid). Plaintiff now submits an undated affidavit—
conveniently filed almost a year after she was deposed—stating that she
“noticed the substance that [she] had slipped through was dry around the edges
but wet in the middle.” (Doc. 50-4 at 2).
At her deposition, Plaintiff recalled the substance was “purplish
brownish darkish stuff, gooey stuff with little tiny seeds in it.” (Doc. 42-1 at
43). She was “not sure” when asked whether the track marks were “fresh” or
if “the substance had been smeared and spread out for quite some time.” (Doc.
42-1 at 73). Nor could she recall the amount of space the substance took up.
(Id. at 44). Ultimately, she was “unsure” what the substance was. (Id.). The
affidavit is the first (and apparently only) evidence that the substance was dry
around the edges but wet in the middle.

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Defendant argues the Court should not consider the affidavit for two
reasons. First, the affidavit contradicts her deposition testimony but provides
no valid explanation for the contradiction. (Doc. 52 at 4). Second, “mere
conclusions and unsupported factual allegations are legally insufficient to
create a dispute to defeat summary judgment.” 4 (Id. (citing Bald Mountain
Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)).
In the Eleventh Circuit, “[w]hen a party has given clear answers to
unambiguous questions which negate the existence of any genuine issue of
material fact, that party cannot thereafter create such an issue with an
affidavit that merely contradicts, without explanation, previously given clear
testimony.” Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656,
657 (11th Cir. 1984). But “there may be some occasions where a party may by
affidavit clarify testimony given in his deposition and thereby create a genuine
issue as to a material fact.” Id. at 656.
The Court has carefully considered Defendant’s argument that the
affidavit contradicts Plaintiff’s deposition testimony, and thus the Court
should not consider such a “sham” affidavit. (Doc. 52 at 4). But it is arguably

4 Notwithstanding the fact that Plaintiff’s affidavit is self-serving and uncorroborated, the

affidavit clearly contains factual allegations. See United States v. Stein, 881 F.3d 853, 859
(11th Cir. 2018) (“We do not mean to suggest that a self-serving and/or uncorroborated
affidavit will always preclude summary judgment. We hold only that the self-serving and/or
uncorroborated nature of an affidavit cannot prevent it from creating an issue of material
fact.”). So the Court easily rejects Defendant’s second argument.
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a close call whether the affidavit contradicts or merely supplements her
testimony. And regardless, the Court need not decide the issue because the
statement in the affidavit is insufficient to demonstrate constructive notice.
Even viewing all facts and drawing all reasonable inferences in the light
most favorable to Plaintiff, there is simply not enough information in this
record to reasonably infer when the substance ended up on the sidewalk. A
“plus” fact must enable a jury to reasonably conclude that the substance was
on the floor long enough to establish constructive knowledge. Valdes v. Verona
at Deering Bay Condo. Ass’n, Inc., No. 3D23-0362, 2024 WL 3049788, at *2
(Fla. Dist. Ct. App. June 19, 2024). Plaintiff’s eleventh-hour “plus” facts simply
do not suffice.
The crux of the problem is that the record does not reveal what substance
caused Plaintiff’s fall. Context matters. For instance, in Colon v. Outback
Steakhouse of Florida, Inc., the plaintiff slipped on a potato that was “mushy”
and “dirty,” which suggested “that it had gone undetected on the floor for a
sufficient period of time to place Outback on constructive notice.” 721 So. 2d
769, 771 (Fla. Dist. Ct. App. 1998). In Camina v. Parliament Insurance Co.,
the plaintiff slipped on ice cream that was “thawed, dirty and splattered,”
which was sufficient to create an inference of constructive knowledge. 417 So.
2d 1093, 1094 (Fla. Dist. Ct. App. 1982). “In both cases, the facts gave some
indication of the substance’s original condition—that the potato was not dirty
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when it fell from a customer’s plate or a server’s tray and that the ice cream
was frozen—which allowed a jury to draw an inference from its altered
condition.” Berbridge, 728 F. App’x at 933.
Here, the evidence “shows little more than the presence of [a] dangerous
condition.” Id. The fact that the substance was dry around the edges and wet
in the middle “gives rise to nothing more than a ‘guess or mere possibility’ that
it was on the floor for a period of time sufficient to create constructive notice.”
Id. (citation omitted); see also Encarnacion, 211 So. 3d at 277 (no evidence that
the substance, in its original condition, was not “oily,” “dirty,” and “dark”);
Wilson-Greene v. City of Miami, 208 So. 3d 1271, 1275 (Fla. Dist. Ct. App. 2017)
(no evidence that the soup was hot prior to being spilled). “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.” Cordoba v.
Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (citing Hedberg v. Ind. Bell
Tel. Co., 47 F.3d 928, 931–32 (7th Cir. 1995)).
In this case, because the record does not reveal exactly what the
substance was and thus its original condition, the jury would have to speculate
as much. Without knowing what the substance was, the jury would then have
to speculate how long it took the edges of the unknown substance to dry but
remain wet in the middle.

Third, the jury would have to infer that the

speculative length of time it took for the unknown substance to dry only on the
13

edges and remain wet in the middle was sufficient to confer constructive notice
on Defendant. The Court declines to stack these inferences. Thus, Plaintiff
has not created such a genuine issue of material fact on this issue as to require
submission to a jury.
2.

Employee Proximity to the Substance

Next, Plaintiff argues that Tecuanapa’s proximity to the substance is
sufficient evidence of constructive notice.

(Doc. 50 at 13–14).

Plaintiff

contends that Tecuanapa was “close enough” to the area of the incident, “could
have seen” the substance on the sidewalk, and failed to monitor and detect it.
(Id. at 2, 13–14).
“Beyond the length of time, courts are more likely to find that a business
had constructive notice when the business’s employees were ‘in the vicinity of
where the fall occurred.’” Torres v. Wal-Mart Stores E., L.P., 555 F. Supp. 3d
1276, 1283 (S.D. Fla. 2021) (quoting Plott v. NCL Am., LLC, 786 F. App’x 199,
203 (11th Cir. 2019)). However, Tecuanapa’s presence—on this record—is not
enough to establish constructive notice.
Tecuanapa was on a scheduled break and off duty when Plaintiff slipped.
(Doc. 42-4 at 37, 70). Therefore, Plaintiff’s emphasis on Tecuanapa being on
his phone and not observing the sidewalk and parking lot is much ado about
nothing. (Doc. 50 at 13 (citing Doc. 42-4 at 56)). An employee’s phone use while
off duty does not violate Defendant’s policies. (Doc. 42-3 at 26). In any event,
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Tecuanapa testified that he never saw the substance before or after Plaintiff’s
incident. (Doc. 42-4 at 65, 69). Rather, he testified that from where he sat
while on break, he could see the general area where Plaintiff fell, but he was
sitting too far away to see the surface of the concrete. (Id. at 65).
Plaintiff’s reliance on Tecuanapa’s testimony that if he had been paying
closer attention or checked a bit closer, he would have noticed the substance
and warned someone, is unavailing. (Doc. 50 at 13 (citing Doc. 42-4 at 32–33)).
In Straube v. Moran Foods, LLC, the court addressed a similar argument,
namely that “even if . . . employees did not have actual notice of the spill, they
were close enough to the spill such that they should have discovered the spill
had they exercised reasonable care.” No. 8:16-CV-49-T-24 AEP, 2016 WL
6246539, at *3 (M.D. Fla. Oct. 25, 2016). In rejecting the plaintiff’s argument,
the Straube court reasoned that the facts did not support notice because the
employees stood several feet away from where the plaintiff fell and were
looking in the opposite direction.

Id.

Like the employees in Straube,

Tecuanapa was “not looking” in Plaintiff’s direction when she fell and “was
sitting too far away” to see the surface of the concrete where she slipped. (Doc.
42-4 at 34, 65). Given this evidence, Tecuanapa’s mere presence is insufficient
evidence of constructive notice.
While

Plaintiff

relies

on

three

state

court

cases,

they

are

distinguishable. (Doc. 50 at 13 (citing Markowitz v. Helen Homes of Kendall
15

Corp., 826 So. 2d 256, 261 (Fla. 2002); Greenleaf v. Amerada Hess Corp., 626
So. 2d 263 (Fla. Dist. Ct. App. 1993); Winn-Dixie Stores, Inc. v. Guenther, 395
So. 2d 244, 245 (Fla. Dist. Ct. App. 1981)). In those cases, employees were in
the “immediate vicinity” (i.e., inches from) a grape, Markowitz, 826 So. 2d at
258, 261; could see an oily spill big enough to soak a plaintiff from their
position, Greenleaf, 626 So. 2d at 263–64; or could see dirty liquid from an
elevated platform in the store, Winn-Dixie Stores, 626 So. 2d at 245–46. But
here, Tecuanapa was not standing next to the substance. In addition, there is
no evidence that Tecuanapa could see the substance from where he sat while
on break.

See Borroto v. Wal-Mart Stores E., LP, No. 2:19-CV-356-FTM-

38NPM, 2020 WL 6591193, at *4 (M.D. Fla. Nov. 10, 2020) (distinguishing
Markowitz and Greenleaf); Ayers v. Wal-Mart Stores, E., L.P., No. 15-24663CIV, 2017 WL 747541, at *3 (S.D. Fla. Feb. 27, 2017) (distinguishing
Markowitz); Garcia v. Target Corp., 2013 WL 12101087, at *3 (S.D. Fla. Feb.
26, 2013) (same).
In sum, Tecuanapa’s mere presence is not sufficient evidence to allow a
reasonable jury to conclude that Defendant should have been on notice of the
spill. See Straube, 2016 WL 6246539, at *3; Garcia, 2013 WL 12101087, at *3
(concluding that evidence that employees were putting away clothes ten to
fifteen feet away in a separate area of the store and could not see the spill from
where they were standing was not sufficient to allow a reasonable jury to
16

conclude that the defendant should have been on notice of the spill). This is
not a case where the spill was at Tecuanapa’s feet, and he did nothing about
it. Nor is there any evidence that the spill was visible to him. See Garcia, 2013
WL 12101087, at *3; see also Borroto, 2020 WL 6591193, at *4 (“Because
Borroto does not point to any evidence supporting an inference that the stocker
could or should have seen the spill, this argument fails.”); Straube, 2016 WL
6246539, at *3. There is simply insufficient evidence of employee proximity to
support an inference of constructive notice.
3.

Defendant’s Policies and Procedures

Finally, Plaintiff’s argument that Defendant violated its policies and
procedures is a nonstarter. Plaintiff contends that a jury could infer that
Walmart employees failed to follow the store’s policies and procedures by not
inspecting the area. (Doc. 50 at 14). She points to Tecuanapa’s alleged failure
to inspect the area where she fell and that the area “was not otherwise
regularly traversed by Walmart employees because of the barriers set up near
the area.” (Id.)
First, Tecuanapa’s testimony contradicts Plaintiff’s assertion.

He

testified that twenty minutes before Plaintiff fell, he was “nearby enough”
getting carts and would have seen the surface where she fell. (Doc. 42-4 at 67).
He stated that he would have seen the area because he has “good eyesight” but
did not see a substance on the ground. (Id.)Mendez also testified that despite
17

the barriers, the area where Plaintiff fell is not neglected or unmonitored
because most Walmart associates come to work through that very area. (Doc.
42-3 at 60).

Lastly, Plaintiff identifies no evidence that members of

management do not follow Defendant’s policy of performing exterior tours at
least three times a day to ensure that the parking lot and sidewalk are well
maintained.

Based on the above, the Court agrees with Defendant that

Plaintiff has not shown that a genuine issue of material fact exists regarding
whether Defendant violated its policies and procedures.
At bottom, Plaintiff must provide evidence supporting a reasonable
inference that Defendant had constructive notice of the substance. Such an
inference cannot be “a degree of speculation and conjecture that renders its
finding a guess or mere possibility.” Daniels, 692 F.2d at 1326. Because that
is all Plaintiff could ask a jury to do over notice, summary judgment is
proper. 5 See Borroto, 2020 WL 6591193, at *5.
Accordingly, it is now
ORDERED:
1.

Defendant’s Motion for Final Summary Judgment (Doc. 42) is

GRANTED.

5 Because the Court finds Plaintiff failed to demonstrate Defendant had actual or constructive

notice, the Court need not address Defendant’s arguments that the allegedly dangerous
condition was open and obvious or that it had a duty to warn Plaintiff of a dangerous
condition. (Doc. 42 at 10, 18).
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2.

The Clerk is DIRECTED to enter judgment, terminate all

pending motions or deadlines, and close the file.
DONE and ORDERED in Fort Myers, Florida on November 22, 2024.

Copies: All Parties of Record

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