Reyes et al v. BJ's Restaurants, Inc.

Filing 89

ORDER granting 50 Defendant's Motion for Summary Judgment; granting 68 Defendant's Motion to Strike; denying 71 Plaintiffs' Rule 56(d) Motion. Signed by Senior Judge James I. Cohn on 8/15/2018. See attached document for full details. (ek00) (Main Document 89 replaced on 8/15/2018 due to edits made in the numeral numbering on pages 5, 8,11 and 17) (mf).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 17-62583-CIV-COHN/SELTZER
ROLANDO REYES and CARIDAD REYES,
Plaintiffs,
v.
BJ’S RESTAURANTS, INC.,
Defendant.
/
OMNIBUS ORDER
THIS CAUSE is before the Court on Defendant’s Motion for Summary Judgment
[DE 50], Defendant’s Motion to Strike Affidavit of David M. Gill and David M. Gill as a
Witness [DE 68] (“Motion to Strike”), and Plaintiffs’ Rule 56(d) Motion to Defer
Considering or Deny Defendant’s Motion for Summary Judgment [DE 71] (“Rule 56(d)
Motion”) (collectively, “Motions”). The Court has considered the Motions, all relevant
briefing, and the record in this case, and is otherwise advised in the premises.
I. Background
A. Factual Background
On October 11, 2015, Plaintiffs Rolando and Caridad Reyes were patronizing a
BJ’s Restaurant in Pembroke Pines, Florida. DE 49 ¶ 2; DE 1-1 at 1-2 ¶¶ 4, 7-8. 1 The

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Plaintiffs did not to file a statement of material facts in opposition to Defendant’s Motion for
Summary Judgment, as required by Southern District of Florida Local Rule 56.1(a). Local Rule 56.1(b)
unambiguously sets forth the consequences for a nonmoving party’s failure to do so: “All material facts
set forth in the movant’s statement filed and supported as required [by Rule 56.1(a)] will be deemed
admitted unless controverted by the opposing party’s statement, provided that the Court finds that the
movant’s statement is supported by evidence in the record.”
Because Plaintiffs, the nonmoving parties, have “failed to comply with Local Rule 56.1—the

only permissible way for [them] to establish a genuine issue of material fact at [this] stage—the court
has before it the functional analog of an unopposed motion for summary judgment.” Reese v.

restaurant is operated by Defendant BJ’s Restaurants, Inc. Id. at 1 ¶ 4. At the time,
Rolando was 84 years old; Caridad was 77 years old. DE 49-1 at 5:5-6; DE 49-2 at
6:21-22. Following dinner, Rolando left table and walked around the back of the
restaurant toward the restroom. DE 49-1 at 34:1-18. As he left the restroom and
headed back to the table, Rolando slipped and fell prior to reaching some steps at the
front of the restaurant. Id. at 34:22-35:5, 37:13-14, 59:23-25. Rolando does not know
whether the steps or anything on the floor caused him to slip. Id. at 36:2-15, 37:15-16,
38:9-14. Nor did Rolando (or any family member present with him that evening) inspect
the floor or steps to find out what might have caused him to slip. Id. at 42:10-13, 53:1217, 60:7-12; DE 49-2 at 38:14-18, 40:10-17.
Eight minutes and ten seconds after Rolando slipped and fell, Caridad slipped
and fell prior to reaching same steps. Id. at 43:21-25. Like Rolando, Caridad slipped
while returning from the restroom at the back of the restaurant. DE 49-2 at 43:21-44:12.
And like Rolando, Caridad does not know what caused her to fall, and made no effort
after the fact to determine what caused her to fall. Id. at 44:13-19, 46:8-16, 47:15-18,
49:14-50:10.
Closed-circuit television video (“CCTV”) footage from the restaurant shows that,
in the five minutes before Rolando’s fall, at least 16 people traversed the steps, all

Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008). That does not mean, however, that Defendant is
“absolved of the burden of showing that it is entitled to judgment as a matter of law, and a Local Rule
56.1 statement is not itself a vehicle for making factual assertions that are otherwise unsupported in
the record.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009) (alterations and internal
quotation marks omitted). Defendant continues “to shoulder the initial burden of production in
demonstrating the absence of any genuine issue of material fact, and the court must satisfy itself
that the burden has been satisfactorily discharged.” Reese, 527 F.3d at 1268; see Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The Court will therefore confine its review to the materials
submitted by Defendant in support of its Motion for Summary Judgment. Mann, 588 F.3d at 1303.

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without incident. CCTV Footage at 11:08-16:08. 2 And in the time between Rolando
and Caridad’s falls, at least 28 people utilized the steps, all without incident. Id. at
16:08-24:28. The CCTV footage also shows that neither Caridad nor Rolando used
either of the two handrails located at the sides of the steps. Id. at 16:08, 24:28.
After the incidents, the restaurant’s senior managers on duty that day, Alexander
Torrens and Gerardo Chavez, inspected the steps and the area of the floor in and
around the steps, and did not see anything (slippery or otherwise). DE 49-3 at 106:23107:17, 115:1-16; DE 49-4 at 56:23-58:17, 65:10-66:1. They also spoke to the
restaurant’s staff working that day, as well as Plaintiffs’ family members, none of whom
said that they saw anything on the floor that could have caused Plaintiffs to slip and fall.
DE 49-3 at 108:4-7, 108:20-25, 110:13-111:14, 112:5-12, 115:24-116:5; DE 49-4 at
58:18-22, 60:14-61:18.
Both Rolando and Caridad testified during their depositions that they have no
evidence of Defendant’s knowledge of any alleged slippery condition on the floor and no
evidence that the floor was inherently slippery. DE 49-1 at 36:12-15, 54:1-13; DE 49-2
at 50:12-14, 89:5-90:5. Finally, and as already noted, Rolando and Caridad also
testified that they do not know what caused them to fall.
B. Procedural Background
On January 24, 2017, Plaintiffs filed this suit against Defendant in the
Seventeenth Judicial Circuit Court of Florida, Broward County. See DE 1-1 at 18-25.
An amended complaint was filed on June 28, 2017. See id. at 1-10. The amended
complaint states two counts of negligence—the first with respect to Rolando’s slip and
fall; the second with respect to Caridad’s. Id. at 3-9 ¶¶ 15-40. Both the original
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Plaintiffs have conventionally filed their CCTV footage with the Clerk of Court. DE 51.

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complaint and the amended complaint made a generic plea for damages exceeding
$15,000, exclusive of interest and costs. Id. at 1 ¶ 1, 18 ¶ 1. On December 1, 2017, in
response to Defendant’s request for admissions, Plaintiffs admitted that the total
amount of damages they seek exceeds $75,000. See DE 1-2 at 14-19.
Following Plaintiffs’ admission, on December 29, 2017, Defendant removed the
case to this Court, citing diversity of citizenship. DE 1; see 28 U.S.C. §§ 1332(a),
1441(b). There is no dispute that diversity jurisdiction exists. The parties are
completely diverse—Plaintiffs are Florida citizens who reside in Miami-Dade County,
Florida [DE 1-1 at 1 ¶¶ 2-3]; Defendant is a California corporation with its principal place
of business in Huntington Beach, California [DE 1-3; see 28 U.S.C. § 1332(c)]. And, as
noted, Plaintiffs have admitted that the statutory amount in controversy has been met. 3
On February 5, 2018, more than five weeks after the case was removed,
Plaintiffs’ counsel moved to withdraw. DE 11. The Court permitted counsel to do so ten
days later, stayed the case until March 19, 2018, and extended certain pre-trial
deadlines. DE 17.
On March 26, 2018, Plaintiffs’ current counsel entered her appearance and filed
a motion for leave to file a second amended complaint in order to add an additional,
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There is also no dispute that Defendant’s removal was proper. In a case such as this, where the
removability of a state court action is not apparent from the plaintiff’s initial pleading, “a notice of removal
may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an
amended pleading, motion, order or other paper from which it may first be ascertained that the case is
one which is or has become removable.” 28 U.S.C. § 1446(b)(3) (emphasis added). And where, as here,
“the case stated by the initial pleading is not removable solely because the amount in controversy does
not exceed the amount specified in section 1332(a), information relating to the amount in controversy in
the record of the State proceeding, or in responses to discovery, shall be treated as an ‘other paper’
under subsection (b)(3).” Id. § 1446(c)(3)(A); see Lambertson v. Go Fit, LLC, 918 F. Supp. 2d 1283, 1285
(S.D. Fla. 2013) (“Courts have held that responses to request for admissions, settlement offers, and other
correspondence between parties can be ‘other paper’ under 28 U.S.C. § 1446(b).” (internal quotation
marks omitted)). Defendant first learned of the case’s removability on December 1, 2017, and filed its
notice of removal on December 29, 2017, within the 30-day window. And since this case was first filed on
January 24, 2017, Defendant’s removal satisfies the requirement that a diversity case be removed no
later than one year after commencement of the action. See 28 U.S.C. § 1446(b)(1).

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non-diverse defendant and remand the case to state court. DE 20. The Court denied
Plaintiffs’ motion without prejudice due to their failure to attach a proposed amended
complaint or state with particularity the grounds upon which they sought leave to
amend. DE 28 at 3-4. On April 23, 2018, Plaintiffs filed a renewed motion for leave to
amend and remand, this time with a proposed second amended complaint attached.
DE 37. The Court denied that motion on June 7, 2018. DE 43.
Defendant now moves for summary judgment and to strike one of Plaintiffs’
proposed expert witnesses. Plaintiffs, for their part, ask the Court to defer ruling on or
to deny the Motion for Summary Judgment so they may conduct additional discovery.
II. Rule 56(d) Motion
Federal Rule of Civil Procedure 56(d) provides: “If a nonmovant shows by
affidavit or declaration that, for specified reasons, it cannot present facts essential to
justify its opposition [to a motion for summary judgment], the court may: (1) defer
considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to
take discovery; or (3) issue any other appropriate order.” Contending that they have not
had sufficient time to conduct discovery, Plaintiffs seek relief from the Court under Rule
56(d).
A. Legal Standard
Rule 56(d) reflects the principle that “the party opposing a motion for summary
judgment should be permitted an adequate opportunity to complete discovery prior to
consideration of the motion.” Jones v. City of Columbus, 120 F.3d 248, 253 (11th Cir.
1997) (per curiam). As the Eleventh Circuit explained in Snook v. Trust Co. of Ga. Bank
of Savannah, N.A., 859 F.2d 865 (11th Cir. 1988):

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The party opposing a motion for summary judgment has a right to challenge the
affidavits and other factual materials submitted in support of the motion by
conducting sufficient discovery so as to enable him to determine whether he can
furnish opposing affidavits. If the documents or other discovery sought would be
relevant to the issues presented by the motion for summary judgment, the
opposing party should be allowed the opportunity to utilize the discovery process
to gain access to the requested materials. Generally summary judgment is
inappropriate when the party opposing the motion has been unable to obtain
responses to his discovery requests.
Id. at 870 (citations omitted).
“Courts cannot read minds,” however, “so the nonmoving party must give more
than vague assertions that additional discovery will produce needed, but unspecified,
facts.” Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1063 (11th Cir. 2015) (internal
quotation marks omitted). The party invoking Rule 56(d) “must specifically demonstrate
how postponement of a ruling on the motion will enable him, by discovery or other
means, to rebut the movant’s showing of the absence of a genuine issue of fact.”
Reflectone, Inc. v. Farrand Optical Co., 862 F.2d 841, 843 (11th Cir. 1989) (per curiam)
(internal quotation marks omitted). Thus, “the party opposing the motion for summary
judgment bears the burden of calling to the district court’s attention any outstanding
discovery.” Urquilla-Diaz, 780 F.3d at 1063 (quoting Snook, 859 F.2d at 871).
B. Discussion
According to Plaintiffs, because their current counsel did not begin representing
them until March 26, 2018, they only had 80 days to conduct discovery. DE 71 at 2, 1415; see DE 9 at 1 (setting fact discovery deadline for May 31, 2018 and expert
discovery deadline for June 14, 2018); DE 40 (extending fact discovery to June 14,
2018). And that amount of time, Plaintiffs say, was not enough for them to adequately
respond to Defendant’s Motion for Summary Judgment.

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The Court disagrees. As noted in the Court’s discussion of this case’s
procedural history, Plaintiffs first initiated this suit in January 2017. The parties engaged
in discovery in state court throughout much of 2017, until Defendant removed the case
to this Court on December 29, 2017. And once the case was removed, the Court
entered a Scheduling Order on January 30, 2018 allotting the parties 135 days for
discovery. DE 9. 4 That Plaintiffs’ present counsel did not enter the case until midway
through the discovery period in this Court does not mean that Plaintiffs have not been
given sufficient time to conduct discovery—both in this Court and in state court. “There
is no principle that each new attorney for a litigant must have an independent
opportunity to conduct discovery. Shortcomings in counsel’s work come to rest with the
party represented. They do not justify extending the litigation, at potentially substantial
expense to the adverse party.” Carson v. Bethlehem Steel Co., 82 F.3d 157, 159 (7th
Cir. 1996) (per curiam).
Plaintiffs’ assertion that they have not been permitted enough time for discovery
is further undermined by the fact that they did not move for an extension of the fact and
expert discovery deadlines until May 9, 2018, a full six weeks after their current counsel
first entered her appearance. See DE 39. Nor did Plaintiffs move for a stay of any
deadlines while they sought to have the case remanded to state court. The Court will
not reward Plaintiffs for their counsel’s lack of diligence.
In any event, Plaintiffs do not state with specificity what additional discovery they
seek. Indeed, Plaintiffs do not say at all what they hope to discover should the Court

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A discovery period of 135 days is standard for a case such as the present one. See S.D. Fla.
L.R. 16.1(a)(2)(A) (“[A] relatively non-complex case requiring only one (1) to three (3) days of trial may be
assigned to an expedited track in which discovery shall be completed within the period of ninety (90) to
179 days from the date of the Scheduling Order.”).

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grant their Rule 56(d) Motion. There are no noticed but uncompleted depositions. E.g.,
Duvall v. Infinity Sales Grp., LLC, 2014 WL 11412697, at *1 (S.D. Fla. Apr. 21, 2014)
(granting Rule 56(d) motion when one party had yet to take the other’s deposition);
Singh v. Caribbean Airlines Ltd., 2013 WL 12104922, at *1 (S.D. Fla. Dec. 2, 2013)
(Granting Rule 56(d) motion when there were “nine scheduled but not yet completed
depositions, and various interrogatories already propounded,” that would “likely provide
evidence germane to [the nonmoving party’s] opposition to the pending summary
judgment motion.”). Nor are there any pending motions to compel. E.g., Ceant v.
Aventura Limousine & Transp. Serv., Inc., 2012 WL 12845624, at *1 (S.D. Fla. Aug. 13,
2012) (granting Rule 56(d) motion when plaintiff filed a motion to compel, had yet to
receive the sought-after discovery, and “the very discovery that [p]laintiff requested” was
being used by defendants “as a basis for their summary judgment motion”).
In short, Plaintiffs do not come close to meeting their burden of persuading the
Court to postpone ruling on or to deny Defendant’s Motion for Summary Judgment in
order to permit additional discovery. The Court will therefore deny Plaintiffs’ Rule 56(d)
Motion.
III. Motion to Strike
In their Motion to Strike, Defendant asks that the Court strike Plaintiffs’ proposed
expert witness, David M. Gill.
A. Legal Standard
Federal Rule of Civil Procedure 26(a)(2)(D) governs the timing of the disclosure
of expert witnesses. As relevant here, it provides that “[a]bsent a stipulation or a court
order, the disclosures must be made . . . at least 90 days before the date set for trial or

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for the case to be ready for trial . . . .” Fed. R. Civ. P. 26(a)(2)(D)(i); see Knight ex rel.
Kerr v. Miami-Dade Cty., 856 F.3d 795, 811 (11th Cir. 2017) (“Rule 26(a)(2)(D)(i) sets a
default deadline in the event that the trial court does not set its own schedule.”).
“Because the expert witness discovery rules are designed to allow both sides in a case
to prepare their cases adequately and to prevent surprise, compliance with the
requirements is not aspirational.” Reese v. Herbert, 527 F.3d 1253, 1266 (11th Cir.
2008) (internal quotation marks omitted).
Rule 26(a)’s expert disclosure rule is enforced by Rule 37(c)(1), which reads: “If a
party fails to provide information or identify a witness as required by Rule 26(a) . . . , the
party is not allowed to use that information or witness to supply evidence on a motion, at
a hearing, or at a trial, unless the failure was substantially justified or is harmless.” As
Rule 37(c)(1)’s plain text indicates, “a district court clearly has authority to exclude an
expert’s testimony where a party has failed to comply with Rule 26(a) unless the failure
is substantially justified or is harmless.” OFS Fitel LLC v. Epstein, Becker & Green,
P.C., 549 F.3d 1344, 1363 (11th Cir. 2008) (emphasis deleted); see Finley v. Marathon
Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996) (Rule 37(c)(1)’s “sanction of exclusion is . . .
automatic and mandatory unless the party to be sanctioned can show that its violation
of Rule 26(a) was either justified or harmless.”). Substantial justification exists if
“reasonable people could differ as to the appropriateness of the contested action.” Kerr,
856 F.3d at 812 (quoting Maddow v. Procter & Gamble Co., 107 F.3d 846, 853 (11th
Cir. 1997)). The burden of establishing that a failure to disclose was substantially
justified or harmless rests with the nondisclosing party. Mitchell v. Ford Motor Co., 318
F. App’x 821, 824 (11th Cir. 2009) (per curiam).

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B. Discussion
Trial in this case is set for the two-week trial period commencing on September
4, 2018. DE 4 at 1. The deadline for expert disclosures was June 6, 2018, there being
no stipulation or order setting another date. Plaintiffs first disclosed Mr. Gill on June 3,
2018, but as a lay witness. DE 58 at 5-6. Plaintiffs did not inform Defendant that Mr.
Gill would serve as an expert until Plaintiffs filed an affidavit by Mr. Gill on July 9, 2018
[DE 63], more than two weeks after Defendant filed its Motion for Summary Judgment,
and over a month after the expert disclosure deadline. Plaintiffs do not dispute that they
belatedly disclosed Mr. Gill. See DE 74 at 15 (Plaintiffs admit that they “inadvertently
miss[ed] the 90-day default deadline with respect to timing of expert disclosures”).
The question, then, is whether Plaintiffs’ late disclosure is substantially justified or
harmless. Plaintiffs offer the following justification: until June 7, 2018 (one day after the
expert disclosure deadline), they “rightfully believed that the restaurant’s floor being wet
and/or slippery on the day they were injured as depicted on the store camera video was
not really an issue in this case that would necessitate Mr. Gill’s involvement as an
expert witness.” Id.
Put charitably, Plaintiffs’ excuse for their late disclosure of Mr. Gill strains
credulity. Plaintiffs’ Amended Complaint alleges at least 20 times that Defendant’s floor
was slippery and that Plaintiffs slipped and fell as a result of the floor’s slippery
condition. See DE 1-1 at 2-9 ¶¶ 7, 8, 13, 14, 17, 18, 19, 20, 21, 22, 24, 26, 30, 31, 32,
33, 34, 35, 37, 39. And, as the Eleventh Circuit has observed, expert testimony is often
necessary in slip-and-fall cases. See Rosenfeld v. Oceania Cruises, Inc., 654 F.3d
1190, 1194 (11th Cir. 2011) (“[M]atters of slip resistance and surface friction are beyond

10

the understanding and experience of the average lay citizen.” (internal quotation marks
omitted)).
Nor would excusing Plaintiffs’ lack of diligence be harmless. To the contrary,
Defendant would be severely prejudiced. Even assuming Mr. Gill’s affidavit satisfies
the requirements for written expert reports set forth in Rule 26(a)(2)(B), Defendant has
had no opportunity to depose Mr. Gill, to proffer a rebuttal expert, or to file a Daubert
motion. See Reese, 527 F.3d at 1265 (“[T]he expert disclosure rule is intended to
provide opposing parties reasonable opportunity to prepare for effective cross
examination and perhaps arrange for expert testimony from other witnesses.” (internal
quotation marks omitted)). Adherence to Rule 37(c)(1) and fairness to Defendant
therefore require that Mr. Gill’s affidavit be stricken.
IV. Motion for Summary Judgment
The Court now turns to Defendant’s Motion for Summary Judgment. Defendant’s
primary contention is that Plaintiffs have failed to make out a prima facie case of
negligence.
A. Legal Standard
The Court will grant summary judgment if the pleadings, the discovery and
disclosure materials on file, and any affidavits show “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). The movant “bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,

11

477 U.S. 317, 323 (1986). To discharge this burden, the movant must demonstrate a
lack of evidence supporting the nonmoving party’s case. Id. at 325.
After the movant has met its burden under Rule 56, the burden of production
shifts to the nonmoving party who “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving party may not rely merely on
allegations or denials in its own pleading, but instead must come forward with specific
facts showing a genuine issue for trial. Id. at 587.
As long as the nonmoving party has had ample opportunity to conduct discovery,
it must come forward with affirmative evidence to support its claim. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 257 (1986). “A mere ‘scintilla’ of evidence supporting the
opposing party’s position will not suffice; there must be enough of a showing that the
jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th
Cir. 1990). If the evidence advanced by the nonmoving party is merely colorable, or is
not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at
249-50.
B. Discussion
A negligence claim under Florida law consists of four elements: (1) a duty
requiring the defendant to conform to a certain standard of conduct; (2) a breach by the
defendant of that duty; (3) a causal connection between the breach and injury to the
plaintiff; and (4) loss or damage to the plaintiff. See Clay Elec. Co-op., Inc. v. Johnson,
873 So. 2d 1182, 1185 (Fla. 2003); Bartsch v. Costell, 170 So. 3d 83, 86 (Fla. 4th DCA

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2015). Defendant’s Motion for Summary Judgment focuses on the elements of duty
and causation. The Court will consider each in turn.
1. Duty. A business open to the public owes certain duties to its invitees,
namely, (a) to take ordinary and reasonable care to keep its premises reasonably safe
for invitees, and (b) to warn of perils that were known or should have been known to the
owner of which the invitee could not discover. Lago v. Costco Wholesale Corp., 233
So. 3d 1248, 1250 (Fla. 3d DCA 2017). Defendant argues that Plaintiffs cannot
establish that it knew or should have known about any slippery condition on the area of
the floor where Plaintiffs slipped and fell.
Pursuant to Florida Statutes § 768.0755, a plaintiff in a slip-and-fall case must
show that the business had actual or constructive knowledge of a dangerous condition
created by a transitory foreign substance 5 that caused the plaintiff to slip and fall. Publix
Super Markets, Inc. v. Bellaiche, 245 So. 3d 873, 876 (Fla. 3d DCA 2018). Section
768.0755 reads:
(1) If a person slips and falls on a transitory foreign substance in a business
establishment, the injured person 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
(b) The condition occurred with regularity and was therefore foreseeable.
(2) This section does not affect any common-law duty of care owed by a person
or entity in possession or control of a business premises.

5

The term “transitory foreign substance” generally refers “to any liquid or solid substance, item or
object located where it does not belong.” Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 317 n.1
(Fla. 2001).

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Fla. Stat. § 768.0755.
In slip-and-fall cases presenting facts similar to the present case, Florida courts
have not hesitated to grant summary judgment due to a plaintiff’s inability to meet
§ 768.0755’s knowledge requirement. In Lago v. Costco Wholesale Corp., for example,
the Florida Third District Court of Appeal affirmed the grant of summary judgment for the
defendant when—even though it was undisputed that the floor was wet and the plaintiff
slipped and fell—the plaintiff failed to present facts suggesting that the defendant had
actual notice of the liquid, that the liquid had been on the floor, or that such a condition
happened with regularity. 233 So. 3d at 1251-52. In reaching this conclusion, Lago
followed a line of recent decisions holding that evidence of the mere presence of a
transitory foreign substance on the floor, without more, is insufficient to create a jury
question on actual or constructive knowledge. See Encarnacion v. Lifemark Hospitals
of Fla., 211 So. 3d 275, 278 (Fla. 3d DCA 2017); Wilson-Green v. City of Miami, 208
So. 3d 1271, 1274-76 (Fla. 3d DCA 2017); McCarthy v. Broward College, 164 So. 3d
78, 80-82 (Fla. 4th DCA 2015); Walker v. Winn-Dixie Stores, Inc., 160 So. 3d 909, 91213 (Fla. 1st DCA 2014); Delgado v. Laundromax, Inc., 65 So. 3d 1087, 1090 (Fla. 3d
DCA 2011).
Here, the evidence is even weaker. As noted in the Court’s summary of the
undisputed material facts, nothing in the record indicates that there was even a
transitory foreign substance on the floor. Both Plaintiffs admitted in their deposition
testimony that they did not see anything on the floor before or after they fell, and do not
know what caused them to slip. DE 49-1 at 36:2-15, 37:15-16, 38:9-14, 42:10-13,
53:12-17, 60:7-12; DE 49-2 at 38:14-18, 40:10-17, 44:13-19, 46:8-16, 47:15-18, 49:14-

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50:14. And even if there was a transitory foreign substance on the floor, both Plaintiffs
have further conceded that they have no evidence that Defendant actually knew that
there was such a substance on the floor when Plaintiffs slipped and fell. DE 49-1 at
54:1-13; DE 49-2 at 89:5-90:5.
As to constructive notice, it is undisputed that two of Defendant’s managers
investigated the incident by inspecting the stairs and surrounding area right after
Plaintiffs fell. DE 49 ¶¶ 20-23. The managers found no transitory foreign substance on
the floor, or anything else wrong with the floor. DE 49-3 at 106:23-107:17,115:1-16; DE
49-4 at 56:23-58:17, 65:10-66:1. Finally, the CCTV footage shows that, in the five
minutes before Rolando’s fall, 16 people traversed the steps, all without incident. CCTV
Footage at 11:08-16:08. And in the time between Rolando and Caridad’s falls, 28
people utilized the steps, all without incident. Id. at 16:08-24:28. So nothing in the
record suggests that a slippery condition—whether or not the result of a transitory
foreign substance—was regular and therefore foreseeable. 6 And Plaintiffs have not
pointed the Court to any evidence to the contrary. 7
6

The record is devoid of any evidence suggesting that the restaurant’s floor was inherently
slippery. As already observed, questions of inherent slipperiness typically require expert opinion. See
Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1194 (11th Cir. 2011) (“[M]atters of slip resistance
and surface friction are beyond the understanding and experience of the average lay citizen.” (internal
quotation marks omitted)). Because the Court has stricken Plaintiffs’ belatedly disclosed expert witness,
Plaintiffs cannot create a jury question with respect to the floor’s inherently slippery condition. Nor is
there any evidence that the floor was not maintained in a normal and proper manner, any evidence that a
foreign substance had been applied to the floor, or any evidence that there was a defect in the floor
through wear or the passage of time. See Partelow v. Edgar, 219 So. 2d 72, 73 (Fla. 4th DCA 1969).
7
Plaintiffs do direct the Court to a portion of the restaurant’s CCTV footage where it appears that
one of Defendant’s employees places towels on the floor for cleaning purposes. See DE 85-1. In
Plaintiffs’ view, this footage serves as evidence that Defendant had knowledge of a transitory foreign
substance on the floor. But the CCTV footage to which Plaintiffs cite is from the host stand near the
entrance of the restaurant. And it is undisputed that Plaintiffs fell in a different area of the restaurant.
See DE 49 ¶ 16; CCTV Footage at 16:08, 24:28. Even viewing this evidence in the light most favorable
to Plaintiffs, a reasonable jury could not infer, based on the implication that there was a slippery
substance in another area of the restaurant, that Defendant had actual or constructive knowledge of a
similar substance in the area where Plaintiffs slipped and fell. See Food Fair Stores, Inc. v. Trusell, 131
So. 2d 730, 733 (Fla. 1961) (“It is apparent that a jury could not reach a conclusion imposing liability on

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Because Plaintiffs cannot establish that Defendant had actual or constructive
knowledge of any transitory foreign substance on the area of the floor where Plaintiffs
slipped and fell—much less the existence of a transitory foreign substance or any other
slippery condition—it follows that Plaintiffs cannot make out a prima facie case of
negligence.
2. Causation. Even if Plaintiffs could show that Defendant breached some duty
owed to them, they have altogether failed to introduce any evidence of a causal
connection between their injuries and Defendant’s breach of that duty.
“The proximate cause of an injury is that cause which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces the injury, and without
which the result would not have occurred.” Pope v. Pinkerton-Hays Lumber Co., 120
So. 2d 227, 229 (Fla. 1st DCA 1960); see Woodbury v. Tampa Waterworks Co., 49 So.
556, 559 (Fla. 1909). As explained, Plaintiffs have testified that they did not see
anything on the floor before or after they fell, and do not know what caused them to slip.
Nor was a slippery substance seen on the floor by anyone present with Plaintiffs that
day or any of the Defendant’s employees who inspected the floor. And altogether
absent from the record is any evidence of a slippery condition on the floor.
Negligence may not be inferred from the mere happening of an accident alone.
Winn Dixie Stores, Inc. v. White, 675 So. 2d 702, 703 (Fla. 4th DCA 1996). Without
something more, “it is clear that [Plaintiffs’] case is grounded in no more than a guess or
speculation, not founded on observable facts or reasonable inferences drawn from the
[Defendant] without indulging in the prohibited mental gymnastics of constructing one inference upon
another inference in a situation where, admittedly, the initial inference was not justified to the exclusion of
all other reasonable inferences.”); Publix Super Markets, Inc. v. Bellaiche, 245 So. 3d 873, 876 (Fla. 3d
DCA 2018) (“A jury may not stack inferences to determine that a party had actual knowledge of a
dangerous condition . . . .”).

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record.” Williams v. Sears, Roebuck & Co., 866 So. 2d 122, 124 (Fla. 4th DCA 2004).
Guesswork and speculation are plainly insufficient to demonstrate causation. And
without causation, Plaintiffs cannot make out a prima facie case of negligence. Entry of
summary judgment in Defendant’s favor is therefore in order.
V. Conclusion
Today’s disposition is perhaps as much a function of Plaintiffs’ lack of evidence
supporting their case as it is their failure to comply with the Federal Rules of Civil
Procedure and this Court’s Local Rules. Had Plaintiffs filed a statement of undisputed
material facts, they may have advanced colorable evidence supporting their claims.
Had Plaintiffs timely disclosed David M. Gill as an expert witness, Mr. Gill’s opinions
may have raised a factual question properly resolved by a jury. But Plaintiffs did neither
of these things. And so their case is now at an end. Accordingly, it is
ORDERED AND ADJUDGED as follows:
1.

Defendant’s Motion for Summary Judgment [DE 50] is GRANTED.

2.

Defendant’s Motion to Strike [DE 68] is GRANTED, and the Affidavit of
David M. Gill [DE 63] is STRICKEN.

3.

Plaintiffs’ Rule 56(d) Motion [DE 71] is DENIED.

4.

The Court will issue a separate Final Judgment consistent with this Order

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 15th day of August, 2018.

Copies provided to counsel of record via CM/ECF
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