Cserni v. Lowe's Home Centers, LLC

Filing 54

ORDER: The Defendant's Motion for Summary Judgment (Doc. 32) is DEFERRED. Cserni may respond again to the Motion in Limine (Doc. 46) no later than January 8, 2025. Signed by Judge Kathryn Kimball Mizelle on 1/6/2025. (BTM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ZOLTAN CSERNI,
Plaintiff,
v.

Case No. 8:23-cv-1047-KKM-LSG

LOWE’S HOME CENTERS, LLC,
Defendant.

ORDER
Plaintiff Zoltan Cserni sues Defendant Lowe’s Home Centers, LLC, for negligence
after Cserni tripped and fell in a Lowe’s parking lot. Compl. (Doc. 1-1). Lowe’s moves for
summary judgment. Mot. for Summ. J. (MSJ) (Doc. 32). I defer ruling until Cserni has
another opportunity to demonstrate that he can authenticate two Google Maps images
consistent with the Federal Rules of Evidence. If Cserni fails to do so, Lowe’s will be
entitled to summary judgment.
I.

BACKGROUND
Cserni arrived at Lowe’s one morning to purchase garden items. Joint Statement of

Undisputed Facts (JSUF) (Doc. 33) ¶ 1. Cserni retrieved a flat cart from the garden area
near the entry of the store, completed his purchases, and used the cart to transport the

purchased items to his vehicle. Id. ¶¶ 3–4. After loading his vehicle, Cserni returned the
flat cart to the cart corral. Id. ¶ 5. On the first push, the cart hit the front of the corral. Id.
¶ 6. According to Cserni, the cart did not “roll well” because there was an “issue with the
right side wheel.” Cserni Dep. (Doc. 32-1) at 74:1, 75:4–5. So Cserni pushed the cart “very
hard” and “lost” his balance. JSUF ¶ 7. His foot then contacted the “front bottom cross
member” of the cart corral and Cserni fell inside the corral. Id. ¶¶ 7–8. Cserni does not
know precisely how he fell. Id. ¶ 9. The raised crossbar (pictured below) is red, contrasted
with the asphalt parking lot, and it was sunny outside. Id. ¶ 11.

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(Doc. 35-1).
Cserni has visited the same Lowe’s “many times” before the incident and, despite
returning carts to cart corrals “every visit,” never had any issues or any other trips and falls.

Id. ¶¶ 17–18. Cserni is uncertain whether the crossbar was raised before the incident, does
not know the cause of the crossbar’s raised condition, and is unaware how long the crossbar
has been raised. Id. ¶¶ 12–15. Cserni did not notice the crossbar’s condition before the
incident. Id. ¶ 16.
Cserni is unaware if anyone at Lowe’s knew about the raised crossbar before the
incident. Id. ¶ 14. Bree Weaver, the specialty assistant store manager for Lowe’s, said that
in her time working at the store (fourteen to sixteen years), she has never received any
complaints or concerns from customers or employees about any issues with cart corrals,
including the crossbar at issue. Id. ¶¶ 23, 25–26. Weaver also said that she has never
responded to or investigated another incident like this one. Id. ¶ 23. In the three years
preceding the incident, there have been no substantially similar incidents involving a
customer tripping and failing over a cart corral in the parking lot. Id. ¶ 27.
Cserni sued Lowe’s for negligence in state court and Lowe’s removed to federal
court. (Doc. 1); Compl. Lowe’s moves for summary judgment.
II.

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

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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
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 her case with respect to which she has the burden of
proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
I review the record evidence as identified by the parties and draw all legitimate
inferences in the nonmoving party’s favor. See Sconiers v. Lockhart, 946 F.3d 1256, 1262
(11th Cir. 2020); 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, I draw them in favor of
the non-movant.

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III.

ANALYSIS

“A negligence claim has four elements: (1) a duty by defendant to conform to a
certain standard of conduct; (2) a breach by defendant of that duty; (3) a causal connection
between the breach and injury to plaintiff; and (4) loss or damage to plaintiff.” Bartsch v.

Costello, 170 So. 3d 83, 86 (Fla. 4th DCA 2015). In a premises liability case, a plaintiff
must also demonstrate that the defendant possessed the premises and had notice of the
dangerous condition. J.L. Prop. Owners Ass’n, Inc. v. Schnurr, 336 So. 3d 291, 297 (Fla.
4th DCA 2022). “A landowner or occupier owes an invitee two independent duties: (1) to
give warning of concealed perils which are known or should be known to the owner, but
which are not known to the invitee, and (2) to maintain the premises in a reasonably safe
condition.” Frazier v. Panera, LLC, 367 So. 3d 565, 567 (Fla. 5th DCA 2023).
Lowe’s argues that summary judgment is justified for three reasons. First, Lowe’s
argues that no genuine issue of material fact exists as to notice. MSJ at 12–18. Lowe’s
contends that Cserni fails to provide any evidence that Lowe’s had either actual or
constructive notice. Id. Second, and in the alternative, Lowe’s argues that it is entitled to
summary judgment because the raised crossbar was “open and obvious and, as a matter of
law, not inherently dangerous.” Id. at 18–25. Third, Lowe’s argues that no genuine issue
of material fact exists as to causation. Id. at 8–12. In this order, I address only the first
argument.

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A. Notice
Despite his assertion that a plaintiff must prove notice only in premises liability cases
that involve transitory substances, Resp. (Doc. 38) at 13–14, Florida law requires that
Cserni prove that Lowe’s had either actual or constructive notice of a dangerous condition
on its premises. See, e.g., Dudowicz v. Pearl on 63 Main, Ltd., 326 So. 3d 715, 719 (Fla.
1st DCA 2021) (“In premises liability cases, the plaintiff must show the defendant had
actual or constructive notice of the dangerous condition on its premises.”); Kitsopoulos v.

Mathers Bridge Rest., Inc., 627 So. 2d 68, 69 (Fla. 5th DCA 1993) (“To recover for
injuries in a premises liability case, the plaintiff must prove that the owner of the premises
had actual or constructive notice of the dangerous condition which caused the injury.”);

Lisanti v. City of Port Richey, 787 So. 2d 36, 37 (Fla. 2d DCA 2001) (listing “notice of
the dangerous condition” as an “element[] for a claim of premises liability”). Indeed,
Florida courts have required proof of notice in cases that do not involve transitory
substances. See, e.g., Smith v. Westdale Asset Mgmt., Ltd., 353 So. 3d 108, 110 (Fla. 1st
DCA 2022) (stating that, in a premises liability case where the plaintiff tripped and fell
over a speed bump, a “plaintiff must demonstrate that the defendant had actual or
constructive knowledge of a dangerous condition on its premises”); Dudowicz, 326 So. 3d
at 718–19 (addressing the notice requirement in a case involving a trip-and-fall in a hotel
room due to an alleged change in the elevation of the walking surface); Grimes v. Fam.

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Dollar Stores of Fla., Inc., 194 So. 3d 424, 426–27 (Fla. 3d DCA 2016) (discussing the
notice requirement in a case in which the plaintiff “tripped over a short steel re-bar which
was protruding out of the ground”). Lowe’s argues that Cserni has not presented any
evidence of actual or constructive notice.
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). On this record, Cserni cannot prove that
Lowe’s had actual notice of the dangers presented by the raised crossbar. The parties do
not dispute that there have been no substantially similar incidents in the three years
proceeding Cserni’s incident. JSUF ¶ 27. Weaver, the specialty assistant store manager at
Lowe’s, has never responded to a similar incident during her time working at the store,
which spans over fourteen years. Weaver Dep. (Doc. 32-2) at 28:6–10; JSUF ¶ 23. Nor
has Weaver received any complaints or concerns from customers or employees about the
cart corrals, including the crossbar in question. Weaver Dep. at 28:16–21; JSUF ¶¶ 25–
26. Nor does Cserni know whether anyone at Lowe’s was aware of the condition of the
crossbar before the incident. Cserni Dep. at 82:21–24; JSUF ¶ 14. In the light of this
record evidence, Cserni cannot prove actual notice.
Constructive notice is a closer question. “Constructive knowledge may be inferred
if the dangerous condition existed for such a length of time that in the exercise of ordinary

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care, the premises owner should have known of it and taken action to remedy it.” Khorran

v. Harbor Freight Tools USA, Inc., 251 So. 3d 962, 965 (Fla. 3d DCA 2018). Cserni did
not observe the condition of the cart corral’s crossbar before the incident. JSUF ¶ 16. To
meet his burden, Cserni asks me to take judicial notice of two images retrieved from Google
Maps—one purportedly from April 2015 and the other purportedly from November
2018—of the parking lot with the cart corral. Notice of Intent to Take Judicial Notice
(Notice) (Doc. 35). 1 Both images display a corral crossbar that is slightly raised.

April 2015 Image (Doc. 35-3).

Although Cserni failed to style his “notice of intent” as a motion in limine seeking pretrial admission of
the images, I construe the notice as a motion and deny it for the reasons explained.

1

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November 2018 Image (Doc. 35-2). Lowe’s objects to Cserni’s notice of intent. Obj. (Doc.
40).
Cserni asserts that judicial notice is permissible under § 90.2035, Florida Statutes. 2
Notice at 4. But “in diversity cases, the Federal Rules of Evidence govern the admissibility
of evidence in the federal courts.” Johnson v. William C. Ellis & Sons Iron Works, Inc.,
609 F.2d 820, 821 (5th Cir. 1980); 3 see McDowell v. Brown, 392 F.3d 1283, 1294 (11th

“Upon request of a party, a court may take judicial notice of an image, map, location, distance, calculation,
or other information taken from a widely accepted web mapping service, global satellite imaging site, or
Internet mapping tool, if such image, map, location, distance, calculation, or other information indicates
the date on which the information was created.” § 90.2035(1)(a), Fla. Stat. “In civil cases, there is a
rebuttable presumption that information sought to be judicially noticed under this section should be
judicially noticed. The rebuttable presumption may be overcome if the court finds by the greater weight of
the evidence that the information does not fairly and accurately portray what it is being offered to prove or
that it otherwise should not be admitted into evidence under the Florida Evidence Code.” Id.
§ 90.2035(2)(b).
2

The Eleventh Circuit adopted as binding precedent all decisions rendered by the United States Court of
Appeals for the Fifth Circuit prior to the close of business on September 30, 1981. See Bonner v. City of
Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

3

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Cir. 2004) (“Rules of procedure encompass rules of evidence, and therefore, the Federal
Rules of Evidence, not state evidentiary laws, apply.”). The Eleventh Circuit has
recognized an exception when the state evidentiary rule is “substantive in nature,”

McDowell, 392 F.3d at 1295, and the Federal Rules of Evidence sometimes incorporate
state law, see, e.g., FED. R. EVID. 601 (“[I]n a civil case, state law governs the witness’s
competency regarding a claim or defense for which state law supplies the rule of decision.”).
But Cserni has not identified any support for applying Florida’s judicial notice standard in
federal court.
Like other courts, I therefore apply federal law to this question. See, e.g., Thompson

v. R.J. Reynolds Tobacco Co., 760 F.3d 913, 917 (8th Cir. 2014) (“For a court sitting in
diversity, judicial notice is a matter of procedure governed by federal law.”). Federal Rule
of Evidence 201(b) allows a court to take judicial notice of an adjudicative fact if that fact
is “not subject to reasonable dispute because it (1) is generally known within the trial court’s
territorial jurisdiction; or (2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” Cserni relies on American Atheists, Inc. v. Levy

County, No. 1:15CV113-MW/GRJ, 2017 WL 6003077, at *1 & n.2 (N.D. Fla. Dec. 3,
2017), where a district court took judicial notice of a Google Maps image. The court used
the image in that case, though, only to establish the general location of government
buildings, and there did not appear to be any dispute as to the fact of the buildings’

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locations. See id.; United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (“In order
for a fact to be judicially noticed under Rule 201(b), indisputability is a prerequisite.”).
Other courts have taken judicial notice for similar reasons. See, e.g., United States v. Perea-

Rey, 680 F.3d 1179, 1182 n.1 (9th Cir. 2012) (“We take judicial notice of a Google map
and satellite image as a ‘source[ ] whose accuracy cannot reasonably be questioned,’ at least
for the purpose of determining the general location of the home.” (alteration in the
original)); Pahls v. Thomas, 718 F.3d 1210, 1216 n.1 (10th Cir. 2013).
Here, Cserni attempts to use Federal Rule of Evidence 201(b) to prove much more
than the general location of a building. Cserni seeks to use the two images to prove that
the raised crossbar on a particular cart corral existed in the same condition at two points in
the past. Cserni has not pointed to a case in which a court took judicial notice of a similar
piece of evidence. Nor is the precise location of a cart corral or its condition on a particular
date as evidenced in Google images the kind of adjudicative fact that cannot be reasonably
questioned based on Google Maps’s accuracy. Therefore, Cserni may not “bypass[] the
safeguards which are involved with the usual process of proving facts by competent
evidence in district court,” Shahar v. Bowers, 120 F.3d 211, 214 (11th Cir. 1997), and I
will not take judicial notice of the two Google Maps images.
Even though the images are not fit for judicial notice, they might be considered at
summary judgment if Cserni can properly authenticate them. See Rowell v. BellSouth

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Corp., 433 F.3d 794, 800 (11th Cir. 2005) (explaining, on “motions for summary
judgment,” a court can consider evidence “which can be reduced to an admissible form”).
Like other evidence, photographs may be admitted “in accordance with Federal Rule of
Evidence 901.” Robinson v. Sauls, 46 F.4th 1332, 1338 n.3 (11th Cir. 2022); see FED. R.
EVID. 901(a) (“To satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a finding that the item
is what the proponent claims it is.”).
Although Lowe’s initially raised only cursory objections to the images’ admissibility,
Reply (Doc. 41) at 5, Lowe’s supplements its arguments on this score in a motion in limine.
Mot. in Limine (MIL) (Doc. 46). Lowe’s argues that Cserni “failed to authenticate and
cannot authenticate the Google Map Photographs pursuant to Federal Rule of Evidence
901.” MIL at 11–12. Cserni, Lowe’s says, has not presented “any evidence of (1)[] the
operating capabilities or condition of the equipment used by Google Maps; (2) the
procedures employed by Google Maps in taking the photograph; (3) if the Google Map
photo represented the condition of the cart corral in 2015 and 2018; or (4) the exact date
the photo was taken.” Id. at 12. Because Cserni seeks to introduce the images to prove what
the exact cart corral at issue in 2021 looked like in 2015 and 2018, Lowe’s argues that
Cserni cannot authenticate that the cart corrals from the images include the condition of
the cart corral that Cserni tripped over. MIL at 12–13.

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Finally, Lowe’s argues that the “probative value” of the Google Maps images is
“substantially outweighed by a danger” of “confusing the issues” and “misleading the jury.”
FED. R. EVID. 403. Lowe’s contends that the jury may: (1) “mistakenly believe” that the
Google Maps images reflect “the actual conditions of the store on the date of the incident”;
(2) “lead to an incorrect inference of negligence or fault”; and (3) “distract the jury from
the substantive evidence directly related to the case.” MIL at 13–14. This, Lowe’s said, will
lead to unfair prejudice. Id. at 13.
In response, Cserni relies on his judicial notice argument without even attempting
to lay a foundation to authenticate the images for the purpose he seeks to admit them.
Resp. (Doc. 53). Nor does Cserni’s proposed trial witness list include an individual capable
of laying such a foundation. (Doc. 51-3).
Although Rule 56 permits me to consider the lack of authentication of the Google
images undisputed for purposes of summary judgment, I will permit Cserni another
opportunity to respond. Because the Google images are the only evidence upon which
Cserni relies to create a genuine issue of disputed fact as to constructive notice, the failure
to authenticate the images is fatal to his negligence claim. 4
Cserni contends that notice—actual or constructive—is not required because this premises liability case
does not involve a transitory substance. Instead Cserni argues that Lowe’s breached its duties to “(1) to use
reasonable care to maintain the premises in a safe condition, which includes a duty to use reasonable care
to learn of the existence of any dangerous conditions on the premises, and (2) to give the invitee warning
of concealed perils which are or should be known to the landowner, but are unknown to the invitee and
could not be discovered by him through the exercise of due care.” Resp. at 14 (quoting Palavicini v. WalMart Stores E., LP, 787 F. App’x 1007, 1010 (11th Cir. 2019)). But even under that construction, the lack
4

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IV.

CONCLUSION
Cserni must authenticate the Google Maps images to create a genuine issue of

material fact as to constructive notice. I will permit Cserni another opportunity to respond
to the motion in limine regarding the admissibility of the Google Maps images and defer
ruling on the summary judgment motion until Cserni files a supplemental memorandum.
Accordingly, the following is ORDERED:
1.

The Defendant’s Motion for Summary Judgment (Doc. 32) is
DEFERRED.

2.

Cserni may respond again to the Motion in Limine (Doc. 46) no later than
January 8, 2025.

ORDERED in Tampa, Florida, on January 6, 2025.

of admissible evidence as to the length of time that the raised crossbar existed in a bent condition also
defeats Cserni’s negligence claim. A premises owner cannot “learn of the existence” of a condition that is
not present on the property, nor can a premises owner provide an invitee with a “warning of [a] concealed
peril[]” when no such peril exists. Thus, absent Cserni properly authenticating the Google images, his
negligence claim fails.

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