Eddings v. Target Corporation

Filing 34

ORDER denying 29 Motion for Summary Judgment. Signed by Judge Kathryn Kimball Mizelle on 2/5/2024. (ZG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MICHAEL EDDINGS,
Plaintiff,
v.

Case No: 8:22-cv-02060-KKM-AEP

TARGET CORPORATION,
Defendant.

___________________________________
ORDER
Michael Eddings slipped and fell on a plastic bag while pushing his cart toward the
register at Target. Eddings sued Target Corporation for negligence. Target now moves for
summary judgment based on the lack of actual or constructive notice of the bag. Because
there is a genuine dispute of material fact on both issues, Target’s motion for summary
judgment is denied.
I.

BACKGROUND 1
Although the Parties do not agree on much, three core facts are undisputed. See

Statement of Facts (Doc. 30). On the evening of March 22, 2021, Eddings went to Target.

To the extent that facts are capable of multiple inferences, the Court draws “all reasonable inferences in
the light most favorable to the nonmoving party.” Sconiers v. Lockhart, 946 F.3d 1256, 1262 (11th Cir.
2020).

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Id. ¶ 1. Just before 7:45 PM, as he was approaching the register with his cart, Eddings
claims he slipped and fell on a plastic bag. Id. ¶¶ 1, 3. Eddings did not see the bag before
he fell. Id. ¶ 2.
Surveillance video from a security camera captured the incident and roughly twentynine minutes before it. Surveillance Video (Doc. 32). 2 The surveillance video shows two
rows of cash registers where Target employees are checking out customers. The lane with
Eddings’s register is the second-from-the-left in the row farthest away from the security
camera (located roughly in the top-middle of the frame). The surveillance video’s view of
Eddings’s lane is somewhat obstructed because of the angle of the security camera and the
position of the register to its immediate left.
The footage begins just before 7:16 PM and shows a cashier working at the register
in Eddings’s lane. Surveillance Video at 7:15:58. Another employee is initially working at
the register to the immediate left of Eddings’s, but he exits the frame shortly before 7:18
PM. Id. at 7:15:58–17:48. At several times during the footage, other employees who were
not manning a register walk nearby or into Eddings’s lane while performing their duties.

See id. at 7:16:30–46, 7:28:35–58, 7:34:27–35, 7:37:52–56, 7:39:20–27.

2

All citations to the surveillance video reference the time stamp located at the top-left of the frame.

2

At 7:21 PM, a customer in Eddings’s lane appears to grab one or more unopened
bags from their position on a rack at the end of the lane after being handed an item by the
cashier. Id. at 7:21:00–11. The customer then walks back toward the back of the lane, at
one point appearing to reach for something across the conveyor belt that ferries products
up to the register. Id. at 7:21:12–49. Just after 7:22 PM, the cashier hands the customer
something else, although exactly what is unclear. Id. at 7:22:01–03. Carrying the item, the
customer walks toward her cart and the back of the lane again. Id. at 7:22:03–38.
Eventually, the customer exits the frame altogether toward the back of the lane, where she
remains until returning from the same direction about a minute later. Id. at 7:22:38–23:35.
The customer is then joined by a man wearing a green shirt and the two continue to load
their cart. Id. at 7:23:35–58.
At 7:25 PM, the customer appears to grab several more unopened bags from the
rack in front of the cashier. Id. at 7:25:25–30. She hands the bags to the man in green, who
grabs several more bags and then places them all on top of the cart, which at this point has
moved up the lane and is filled with the customers’ purchases. Id. at 7:25:30–40. The
customer grabs several bags from the top of the cart and proceeds to bag various items. Id.
at 7:25:47–26:31. The customer again walks back toward the back of the lane before
returning to her cart with more items and continuing to bag. Id. at 7:26:32–27:27. At 7:29

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PM, the customer reaches back toward the rack again, but it is unclear if she grabs any
additional bags. Id. at 7:29:24–31.
At this point, the customer’s cart is full to the point of overflowing. See, e.g., id. at
7:30:00. The cashier grabs another handful of bags from the rack and hands them to the
customer over the register. Id. at 7:30:08–13. The customer then pushes her cart to the
very front of the lane, freeing up the register for the next cart in line (this appears to be the
customer’s second cart) and further obstructing the view of the lane from the surveillance
camera. Id. at 70:30:24–31:00. Several minutes pass as the customer loads the second cart.
During this time, the customer again walks toward the back of the lane, appearing to reach
for another item across the conveyor belt. Id. at 7:35:00–38. After returning to the front of
the lane, the customer reaches toward the rack, grabs more bags, bags items, and tosses
several loose bags on the overloaded first cart. Id. at 7:35:39–36:21. While this is
happening, a third customer also grabs bags from the rack and begins loading yet a third
cart. Id. at 7:35:57–36:15. Around this time, the group of customers (which now numbers
four adults and a child) have three carts in or nearby the lane. The first cart is past the front
end of the lane obstructing an intersection, the second cart is at the front end of the lane
just past the register, and the third cart is midway through the lane in front of the register
and the cashier. See, e.g., id. at 7:36:25. The customers finally leave the frame with their
third cart shortly after 7:40 PM. Id. at 7:40:15–28.
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After the first group leaves, customers continue to check out in the lane for several
minutes without issue. Eddings and his cart enter the lane at the very top edge of the frame
around 7:43 PM. Id. at 7:43:06–17. Just before 7:45 PM, the group of customers in front
of Eddings finish paying and begin to leave. Id. at 7:44:48. As that group moves away from
the register, Eddings begins to push his cart toward the front of the lane. Id. at 7:44:49. A
few seconds later, Eddings slips and falls. Id. at 7:44:49–54. At no point during the footage
leading up to the fall can a plastic bag be seen in roughly the area where Eddings fell. At
some point after the fall, a Target store lead took several photos of the bag Eddings claims
to have fallen on. See Photos (Doc. 29-3). The photos depict an unopened plastic grocery
bag bearing the red Target logo toward the back-left portion of Eddings’s lane. The bag is
somewhat crumpled, but otherwise does not appear to be stained, scuffed, or wet. See id.
The section of the lane depicted in the photos is not fully visible in the surveillance video
because it is obstructed by the lane immediately to the left and the angle of the security
camera. Compare id., with Surveillance Video at 7:44:54.
At his deposition, Eddings testified that he had been in line for about ten minutes
before falling and that he had not seen anyone drop anything on the floor during that time.
Eddings Dep. (Doc. 29-2) at 51:9–16. Indeed, he did not see the bag at all until after he
fell and a manager “pointed it out” still on his foot. Id. at 51:17–25. Eddings did not know
who dropped the bag but assumed that, because it was “flat and unused,” someone had
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dropped it while placing bags on the rack. Id. at 59:2–23. Eddings estimated that the bag
had been there for between ten and fifteen minutes because that was roughly how long that
he and his family were “congregated” at the far edge waiting for space in the lane to free
up. Id. at 59:24–60:25. Eddings never got a close look at the bag but described it as a “flat
and white” “Target bag” with a visible Target logo. Id. at 56:12–24. Eddings confirmed
that the photos appeared to depict the bag in the same condition as when he had slipped
on it. Id. at 72:2–23. When asked whether he had seen anything to suggest that someone
else had stepped on the bag before him, Eddings said that he had not. Id. at 72:24–73:4.
He also denied seeing “any evidence of footprints, cart-wheel marks, [or] anything like
that.” Id. at 73:5–12.
Target’s corporate representative and several of its employees testified that the kind
of bag Eddings slipped on is shipped to the store in boxes and then distributed to registers
for use by cashiers. Phieffer Dep. (Doc. 33-6) at 29:12–30:13, 93:16–22 (explaining that
there would not be “any reason for a Target employee to be walking around with unopened
bags”); Kaye Dep. (Doc. 33-4) at 15:14–17:20 (explaining the bag restocking process),
17:3–8 (“So sometimes we have the bags at the register, and before they’re going on—for
instance, if a cashier is putting on bags and a guest asks if they could have a bag, then we
give them a bag. That’s the only way a guest would get an unopened flat Target bag.”);
Bent Dep. (Doc. 33-3) at 20:18–21:15 (similar). Another employee testified that customers
6

sometimes “walk[ed] over to registers and just pull[ed] empty bags off because they
want[ed] to use a bag for something, whatever it could be. And, again, those guests—a lot
of bags fall down onto the ground.” Mazzoni Dep. (Doc. 33-2) at 47:3–12. Target
employees understood that fallen bags, like any other out-of-place object, could present a
hazard. Id. at 33:20–22.
On June 2, 2022, Eddings sued Target in the Circuit Court of the Tenth Judicial
Circuit in and for Polk County, Florida, claiming that he was injured due to Target’s
negligent failure to maintain its premises. Compl. (Doc. 1-1). Target removed the case to
federal court, Notice of Removal (Doc. 1), and now moves for summary judgment, MSJ
(Doc. 29).
II.

LEGAL STANDARD
Summary judgment is appropriate if no genuine dispute of material fact exists and

the moving party 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 governing law. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The movant always bears the initial burden of informing the district court of the
basis for its motion and identifying those parts of the record that demonstrate an absence
of a genuine issue of material fact. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608
(11th Cir. 1991). When that burden is met, the burden shifts to the nonmovant to present
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evidentiary materials (e.g., affidavits, depositions, exhibits, etc.) demonstrating that there
is a genuine issue of material fact which precludes summary judgment. Id. A moving party
is entitled to summary judgment if the nonmoving party “fail[s] to make a sufficient
showing on an essential element of [his] case with respect to which [he] has the burden of
proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The Court reviews the record evidence as identified by the parties and draws all
legitimate inferences in the nonmoving party’s favor. See Sconiers, 946 F.3d at 1262; Reese

v. Hebert, 527 F.3d 1253, 1268 (11th Cir. 2008). Here, to the extent that the record is
disputed or capable of multiple inferences, the Court draws them in favor of the nonmovant.
III.

ANALYSIS
To sustain a negligence claim under Florida law, a plaintiff must establish:
(1) the defendant owed a duty, or obligation, recognized by the law,
requiring the defendant to conform 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.

Sutton v. Wal-Mart Stores E., LP, 64 F.4th 1166, 1169 (11th Cir. 2023) (internal
quotation marks and alterations omitted) (quoting Williams v. Davis, 974 So. 2d 1052,
1056 (Fla. 2007)).
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Under Florida’s transitory foreign substance law, “[i]f a person slips and falls on a
transitory foreign substance in a business establishment,” he must also prove that “the
business establishment had actual or constructive knowledge of the dangerous condition
and should have taken action to remedy it.” § 768.0755(1), Fla. Stat. Although this case
involves a plastic bag and not a conventional spill, § 768.0755 still controls. See Owens v.

Publix Supermarkets, Inc., 802 So. 2d 315, 317 n.1 (Fla. 2001) (defining the statutory
phrase “transitory foreign substance” to include “any liquid or solid substance, item or

object located where it does not belong” (emphases added)).
A business owner has “actual knowledge” of a dangerous condition when the owner
or one of its agents “knows of or creates the dangerous condition.” Barbour v. Brinker Fla.,

Inc., 801 So. 2d 953, 957 (Fla. 5th DCA 2001). “Constructive knowledge may be proven
by circumstantial evidence showing that” either “[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 “[t]he condition occurred with regularity and was
therefore foreseeable.” § 768.0755(1)(a)–(b), Fla. Stat. Though the transitory foreign
substance statute was passed in 2010, “Florida courts . . . long recognized the requirement
[of active or constructive knowledge] at common law” before a 2002 statute revoked it, so
state court decisions prior to 2002 or after 2010 are informative. Sutton, 64 F.4th at 1169
n.1.
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Target argues for summary judgment based only on notice. Eddings responds that
the evidence shows a genuine dispute of material fact as to whether Target had both actual
and constructive notice.
A. Actual Notice
Target argues that no evidence supports an inference of actual notice, i.e., that one
of its employees “caused the bag to be on the floor or knew it was on the floor.” MSJ at 7.
I disagree.
First, Target contends that Eddings deposed several of its employees and that none
testified to observing the bag in the relevant area before Eddings’s fall. MSJ at 7. But Target
does not cite those depositions or otherwise direct me to any record evidence in support of
this argument. It is the movant’s initial burden to “identify[] those portions of [the record]
which it believes demonstrate the absence of a genuine issue of material fact,” Clark, 929
F.2d at 608 (quotations omitted). Broad assertions about the contents (or lack thereof) of
depositions not identified in Target’s motion do not merit summary judgment without
more.
Second, Target says, Eddings has no evidence “even suggesting” that a Target
employee either dropped the bag or was aware of it prior to his fall. MSJ at 7. Eddings
responds that Target had actual notice because the cashier created the hazard—either by
handing out unopened bags to customers or by allowing customers to take them from the
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rack understanding that they were likely to end up on the ground. Resp. (Doc. 33) at 10–
14.
I agree with Eddings. To be sure, a tort plaintiff “may not pyramid inferences on
other inferences” to defeat summary judgment. MSJ at 6. But far from a rickety construct
of tangentially related facts, Eddings’s theory of actual knowledge is straightforward: Over
the roughly twenty (somewhat chaotic) minutes that the first group of customers was
checking out, there were at least four instances when a customer was either given unopened
bags by the cashier or took bags from the rack in plain view of the cashier. Surveillance
Video at 7:21:00–11, 7:25:25–40, 7:30:08–13, 7:35:39–36:21. At least one of those
customers then carried bags towards the back of the lane near to where Eddings slipped,
which also appears to have been in plain view from the cashier’s perspective. Id. at 7:21:11–
23:35. Together with testimony from Target’s employees and corporate representative on
the availability of unopened bags to customers, that it was common for bags to end up on
the floor, and that fallen bags could be a slipping hazard, Target’s security camera footage
(the veracity of which is undisputed) would permit a reasonable jury to find that the bag
causing Eddings’s fall was only in his lane because a Target cashier handed it out or allowed
it to be taken. And although the cashier depicted in the surveillance video was never
deposed, see Resp. at 6 n.1, a reasonable jury could infer from the video that she would
have been aware of hazards present in her lane and in plain view.
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Eddings’s argument is unlike the base speculation that merited summary judgment
on actual notice in a similar case against Target. See Hall v. Target Corp., No. 8:22-cv913-KKM, 2023 WL 4686093, at *3–4 (M.D. Fla. July 21, 2023) (Mizelle, J.) (summary
judgment on actual notice appropriate when Plaintiff “put[] forward evidence that wet carts
are slip hazards, that a wet cart could have dripped to cause his fall, and that sometimes
Target employees did not fully dry the carts, but he put[] forward no evidence that there
was a wet cart to begin with”). Whereas in Hall there was no evidence of a wet cart that
could have created the allegedly offensive puddle, here there is video evidence showing a
Target employee distributing unopened bags of the type that Eddings claims caused the
accident to customers who then carried those bags near to the area the accident occurred.
All the while, the cashier was working with, and thus necessarily paying at least some
attention to, the same group of customers for just under twenty minutes. And she
maintained a relatively consistent field of view that included the lane for longer than that
time period.
In sum, there is no smoking gun on actual notice. But there is also far more than
“only a guess or a possibility.” Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324
(11th Cir. 1982) (quotations omitted). On this record, summary judgment is inappropriate.

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B. Constructive Notice
Constructive notice is more of the same. To prove constructive notice, Eddings
must show either that the dangerous condition existed for enough time that Target should
have known of it or that it occurred with enough regularity that it was foreseeable. As to
duration, “at least fifteen to twenty minutes” is enough to prove constructive notice. Sutton,
64 F.4th at 1169 (quoting Winn Dixie Stores, Inc. v. Williams, 264 So. 2d 862, 864 (Fla.
3d DCA 1972)). If a surveillance video does not show a clear moment when the hazard
appeared, “[a] reasonable jury could infer from the absence of a clear moment” that it was
on the floor before the start of the video. Id. at 1172.
The surveillance video in this case shows just under twenty-nine minutes before
Eddings’s fall. Because of the angle of the security camera and the presence of various
obstructions, the footage does not show a precise moment when the bag fell onto the floor
during those twenty-nine minutes. The earliest likely cause of the hazard is between 7:21
PM and 7:24 PM, when a customer first takes unopened bags from the rack and carries
them into the vicinity where Eddings later slipped. Surveillance Video at 7:21:11–23:35.
On that understanding of the surveillance video, there are at least twenty intervening
minutes between one potential cause and Eddings’s fall—enough to survive summary
judgment on constructive notice under Sutton. 64 F.4th at 1169. And even if it were not,
“[a] reasonable jury could infer from the absence of a clear moment” that the bag upon
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which Eddings claims to have slipped was on the floor before the start of the video and
therefore Target should have discovered it. Id. at 1172.
Eddings has also demonstrated a genuine dispute of material fact on whether “[t]he
condition occurred with regularity and was therefore foreseeable” under § 768.0755(1)(b).
Several Target employees testified that it was common for cashiers to give customers
unopened bags from the rack if they wanted them and for customers to simply take
unopened bags without asking. Bent Dep. at 19:19–24 (“We have bag bins that the bags
attach to and as we’re checking things out, we are bagging things or the guests can bag
them as they come down, as the stuff comes down if they would rather do that. That's their
choice, you know.”), 20:3–9 (Q: “Okay. So guests are able to take opened Target bags from
the registers?” A: “They do. I can’t say they’re allowed to, but they do do it, yes.” Q: “Okay.
You've seen them do it before?” A: “Well, sure.”); Kaye Dep. at 17:3–8 (“So sometimes we
have the bags at the register, and before they’re going on—for instance, if a cashier is
putting on bags and a guest asks if they could have a bag, then we give them a bag. That’s
the only way a guest would get an unopened flat Target bag.”). Another employee testified
that, once customers received bags this way, “a lot of bags fall down onto the ground.”
Mazzoni Dep. at 47:3–12.
The employees’ testimony must be considered together with the surveillance
video—which shows multiple customers either being handed bags or taking bags in exactly
14

the manner described by Target’s employees, and the photos—which show that an
unopened bag somehow made its way onto the floor. See Surveillance Video at 7:21:00–
11; 7:25:25–40; 7:30:08–13; 7:35:39–36:21; Photos. Viewing this evidence in the light
most favorable to Eddings, a reasonable jury could find that the phenomenon of unopened
bags being distributed to customers and then ending up on the floor was a regularly
occurring and foreseeable hazard. See, e.g., Feris v. Club Country of Fort Walton Beach,

Inc., 138 So. 3d 531, 532–35 (Fla. 1st DCA 2014) (reversing grant of summary judgment
for the defendant in the light of witness testimony and contemporaneous evidence
suggesting that patrons regularly spilled drinks on the dance floor and that there were
drinks on the floor the night of the incident). Thus, Eddings survives summary judgment
as to constructive notice on both theories.
IV.

CONCLUSION
Eddings has shown that a reasonable jury could infer both actual and constructive

notice. Accordingly, the following is ORDERED:
1.

Target’s motion for summary judgment (Doc. 29) is DENIED.

ORDERED in Tampa, Florida, on February 5, 2024.

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