Glaze v. Worley
| Decision Date | 03 March 2015 |
| Docket Number | No. 1D13–5257.,1D13–5257. |
| Citation | 157 So.3d 552 |
| Parties | Deborah GLAZE, as Parent and Natural Guardian of James Glaze, A Minor Child, Appellant, v. Kathy WORLEY, dba Chick–fil–A of Cordova Mall, and Simon Property Group, LP., DB, Appellees. |
| Court | Florida District Court of Appeals |
Frederick J. Gant, Pensacola, for Appellant.
Stephanie D. Alexander of Vernis & Bowling of Northwest Florida, P.A., Pensacola, for Appellees.
Appellant challenges the entry of a final summary judgment in her negligence action against appellee, Kathy Worley, DBA Chick–fil–A of Cordova Mall (Chick–fil–A). Among other things, appellant asserts that the trial court erred in granting summary judgment and finding that she failed to meet her burden of demonstrating a disputed issue of material fact concerning Chick–fil–A's having actual or constructive knowledge of the presence of a foreign transitory substance adjacent to its establishment. We determine that (1) section 768.0710, Florida Statutes (2004), is the applicable law in this case because section 768.0755, Florida Statutes (2010), cannot be applied retroactively to accidents occurring prior to July 1, 2010; and (2) the trial court erred in granting summary judgment because the affidavit filed in opposition to the motion for summary judgment and the depositions in the court file give rise to a reasonable inference that the source of the water came from an area exclusively within the control of employees of Chick–fil–A, and therefore resulted from active negligence on the part of Chick–fil–A. We, therefore, reverse.
In the complaint, appellant asserted that on March 26, 2005, while walking to the restroom through a common area adjoining Chick–fil–A's restaurant, her minor son James slipped and fell on a foreign substance (water) on the floor. His sister, Raven, was present at the time of the fall. Appellant asserted that Chick–fil–A negligently maintained the floor by allowing the foreign substance to remain on the floor presenting a hazardous condition, and that Chick–fil–A had a duty to maintain its restaurant and common area in a safe condition. Appellant asserted that Chick–fil–A knew or should have known of the hazardous condition, because the foreign substance's presence was foreseeable, and the condition existed for a sufficient length of time. Appellant also asserted that the mall owner, Simon Property Group, was negligent in allowing the hazardous condition.1
In its answer and affirmative defenses, Chick–fil–A denied a duty to maintain the common area and any negligence.
There are three depositions in the court file pertinent to the motion for summary judgment: the depositions of the appellant and James and Raven, her children. James and Raven both described the incident. They walked to the restroom down the hall because Raven was sick. Neither noticed any water on the floor when they walked past the Chick–fil–A service door. After ten to fifteen minutes, they began to walk back. James was in front of Raven, looking behind him to talk to her. Raven saw a man in a wheelchair approach and told James to step out of the way. He stepped to the left, and his feet went out beneath him. He ended up falling hard on his hip and striking his head in the Chick–fil–A door jamb. Neither saw the puddle before James fell. They described the puddle as being about the size of six pieces of paper laid out two by three.
Raven described the water as “coming out of the doorway into the hallway and it was coming out of the door.” James described it as What the children describe is a large puddle originating from a private service area, not a few passing drops of water or spilled drink in a public area. Appellant indicated that just by examining it, you could tell it came from under the door. Chick–fil–A did not present any evidence or contrary affidavit to defeat the inference that the water originated from Chick–fil–A's side of the service door, an area not open to the public and under its command and control.
Our standard of review is de novo. “In reviewing an order granting final summary judgment by the trial court, this court applies the de novo standard of review to determine whether there are genuine issues of material fact and whether the trial court properly applied the correct rule of law.” Futch v. Wal–Mart Stores, Inc., 988 So.2d 687, 690 (Fla. 1st DCA 2008).
“[S]ummary judgment should be entered only when there is no genuine issue of any material fact, and even the slightest doubt as to the existence of such a question precludes summary judgment.” Laidlaw v. Krystal Co., 53 So.3d 1128, 1129 (Fla. 1st DCA 2011). Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966).
There is a great deal of confusion surrounding the retroactive application of section 768.0755, Florida Statutes, which became effective on July 1, 2010, and its effect on how to review slip and fall cases that occurred prior to its effective date.2
Two recent cases out of this court dealing with the responsibility of business entities when a patron has slipped and fallen, along with conflicting opinions from the Third and Fourth District Courts of Appeal, may have contributed to this confusion.
In Feris v. Club Country of Fort Walton Beach, Inc., 138 So.3d 531 (Fla. 1st DCA 2014), this court held the denial of summary judgment was in error even though there was no specific evidence of how long the liquid had been on the floor where there was “active negligence” by the employees of the premises in failing to enforce the rule against allowing drinks on the dance floor. In Walker v. Winn–Dixie Stores, Inc., 160 So.3d 909, 2014 WL 4086798, 39 Fla. L. Weekly D1750 (Fla. 1st DCA Aug. 20, 2014), this court affirmed a summary judgment on behalf of the defendant, Winn–Dixie, where there was no evidence of how long the dangerous condition existed before the fall, nor evidence that the condition occurred with regularity. The Walker panel distinguished Feris because in Feris, there was “ ‘active’ negligence by the employees of the premises,” but in Walker, there was no “evidence of active negligence by Winn–Dixie employees.” Walker, ––– So.3d at ––––, 39 Fla. L. Weekly at D1751.
Both cases discussed the retroactivity of section 768.0755, Florida Statutes. The Walker panel never ruled specifically on the retroactivity issue because no one challenged the applicability of the statute. See Walker, ––– So.3d at ––––, 39 Fla. L. Weekly at D1751 n. 1. The court, however, did recognize that there was a split of authority concerning the applicability of that statute to accidents that occurred before its effective date. See Kenz v. Miami–Dade County, 116 So.3d 461 (Fla. 3d DCA 2013) (); Pembroke Lakes Mall Ltd. v. McGruder, 137 So.3d 418 (Fla. 4th DCA 2014) (); Feris, 138 So.3d at 535–36 ().
The Feris court stated that because of the alleged active negligence “in failing to exercise reasonable care in the maintenance, inspection, repair, warning or mode of operation of the business premises,” potential liability would attach under both the pre or post 2010 statute in that case, and thus the retroactivity issue was not dispositive. Feris, 138 So.3d at 536. The court went on, however, to discuss fully the retroactivity issue, indicating that it could not be applied retroactively and expressing disapproval of the Third District's decision in Kenz v. Miami–Dade County, 116 So.3d 461 (Fla. 3d DCA 2013). Feris, 138 So.3d at 536.
In Kenz, the Third District held that the statute should be applied retroactively as a procedural rather than substantive statute because it merely changed the burden of proof for proving a slip and fall case. Kenz, 116 So.3d at 464. The Kenz court found that requiring “[a]ctual or constructive knowledge is not a ‘new’ required element of a prima facie case under section 768.0755, Florida Statutes.” Kenz, 116 So.3d at 466.
In Pembroke Lakes, the Fourth District disagreed with Kenz and stated in its analysis:
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