Two Slip-And-Fall Cases from Third DCA Give Instruction on “Transitory Substance” Litigation Strategy Under Florida Statute 768.0755

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Two decisions regarding slip-and-fall litigation from Florida’s Third DCA (Miami) provide some instruction on how to litigate “transitory substance” cases under Florida Statute 768.0755, particularly “constructive notice” cases.  In both instances, summary judgment was upheld which is unusual in negligence cases.  The decisions provide insight into maintenance contracts, stacking inferences, and how the courts separately evaluate hot vs. melting substances.

In Harriette Wilson-Greene v. The City of Miami et al., the Plaintiff went into the lobby elevator bank at Miami Riverside Center, spent “longer than 15 minutes” on a higher floor, came back down the “same elevator” bank, and slipped coming out of the elevator.  She observed a green substance on her feet, shoes, and legs which was “not hot.”  From all accounts, it was green pea soup.  The City had a contract with Vista Maintenance Services, Inc. which provides that Vista was to “pay close attention to the 3-story lobby area,” “not to under-estimate the lobby requirements… as this is a critical area of importance,” and that Vista was to “police” the area and re-arrange furniture on a daily basis.  So the court had to first determine whether the contract “elevated” (if you will) the standard of care from reasonable care and then determine whether the defendants were on constructive notice.

In Carmen Encarnacion v. Lifemark Hospitals of Florida et al., the Plaintiff was with her ailing mother in the hospital when she walked by a man with a spray bottle cleaning a stretcher and she slipped and fell.  In her first version of events, the man was a non-party EMS paramedic using spray cleaner.  Six months into suit, and more than two years after the accident, she was “less certain” it was an EMS person and the substance was described as oily, dirty, and dark.  Later, she testified it smelled like Pine Sol cleaner.  The Hospital claimed it employed reasonable measures (security guards to “police” the area) and also hired Hospital Housekeeping Services with two 24/7 housekeepers assigned to that area.  No evidence of these reasonable standards were admitted.

Judge Shepherd wrote the opinion in both cases.

Does the Maintenance Contract Language Heighten the Standard of Care?

As to the Wilson-Greene contract, even with the wording of the contract, the court held that this language was “insufficient to place a heightened standard of care on Vista.”  There was no real discussion why except citing the general principle, “where an express provision within a professional services contract provides for a heightened standard of care… the professional must perform in accordance with the terms of the contract.”  This is good news for maintenance companies and their defense counsel from a litigation-standpoint BUT it is also a clear indicator to commercial property owners and their contract-drafting lawyers that if the maintenance contract intends to heighten the standard of care, it must say so with that kind of precise and express language.

In Encarnacion, the “cleaning specifications” mandated that the area “shall be cleaned on a UCR bases, 24/7 and police cleaned, as necessary.”  Here too, the court held that this contractual language was not enough to increase the standard of care beyond reasonable care.  In both cases, the phrase “police cleaned” appeared so it is evident this is a frequent, if not customary phrase but, despite the sound, such language is not precise enough to increase the standard of care.

Constructive Knowledge & Inferences: Frozen/Melting Substance Cases vs. Hot/Cooling Substance Cases

In Wilson-Greene, we turn to the green pea soup and whether the defendants had constructive notice such that they should have known it was there (there was no evidence of actual knowledge).  From the description of the substance, the court is supposed to conclude how long the substance was present.  The jury is allowed to draw one inference from a fact but cannot draw more than one inference unless the second inference is irrefutable (this is called “impermissible stacking of inferences”).

The question of inferences turns differently based upon whether we are dealing with a hot or cold substance.  The short answer is that a fact finder can draw the inference as to the duration of time from melting substances (single inference) but not hot or cooling substances (stacking inferences).  For melting substances (e.g., frozen peas dropped on the supermarket floor surrounded by water), a jury only has to draw “one inference from direct evidence to reach a decision” since it was in the frozen food area and no employee had cleaned for 15-20 minutes.  The court held that, “where melting substances are involved, there is no need to infer the substance was previously frozen.”  In hot substance cases, the jury would have to presuppose that the green pea soup was hot (one inference) in order to infer the duration it was on the floor to cool (second inference).  The latter is impermissible stacking.  Presumably, in melting substance cases, the parties must agree or it is a foregone conclusion that the item was previously frozen.

The Encarnacion case does not involve hot or cold substances but the court did describe how inferences are applied using different language.  Ms. Encarnacion described the substance as oily, dirty, and dark.  The court held this was insufficient to create a jury issue since “the testimony must be accompanied by a ‘plus,’ namely some additional fact or facts from which a jury could reasonably conclude that the substance was on the floor long enough to have become discolored without assuming other facts, such as the substance, in its original condition, was not oily, dirty, and dark.”  For that conclusion, the court cited Wilson-Greene.

Definition of “Negligence”

To the extent a lawyer might need a fresh cite for the elements of negligence, see page 2 of Wilson-Greene or page 5 of Encarnacion.

Photo credit: Gadini at Pixabay




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