Gonzalez v. Ross Dress for Less, Inc.

Decision Date14 November 2022
Docket Number22-cv-20069-BLOOM/Otazo-Reyes
PartiesISABEL GONZALEZ, Plaintiff, v. ROSS DRESS FOR LESS, INC., Defendant.
CourtU.S. District Court — Southern District of Florida



No. 22-cv-20069-BLOOM/Otazo-Reyes

United States District Court, S.D. Florida

November 14, 2022



THIS CAUSE is before the Court upon Defendant Ross Dress for Less, Inc.'s (“Defendant” or “Ross”) Motion for Summary Judgment, ECF No. [16] (“Motion”). Plaintiff Isabel Gonzalez (“Plaintiff” or “Gonzalez”) filed a Response, ECF No. [27], to which Defendant filed a Reply, ECF No. [29]. The Court has carefully considered the Motion, the Response, the Reply, the record in this case, the applicable law, and is otherwise fully advised. For the reasons that follow, the Motion is denied.


This case arises following injuries sustained by Plaintiff when she slipped and fell while shopping at a Ross Dress for Less store located at 20519 South Dixie Highway, in Cutler Bay, Florida. In the Complaint, Plaintiff alleges that on April 29, 2021, while a business invitee at the Ross store, she “slipped and fell on a foreign substance on the floor.” ECF No. [1-1] ¶ 8. As a result, she asserts a claim for negligence against Ross on six bases: (1) failure to maintain, (2) failure to warn, (3) failure to place barricades or warning signs, (4) failure to remove the foreign


substance, (5) failure to correct the hazardous condition, and (6) negligent care, maintenance, and upkeep. Id. ¶ 10.

Ross has moved for summary judgment upon Plaintiff's claims. In support of the instant Motion, Defendant filed its Statement of Material Fact, ECF No. [17] (“Defendant's SMF”). Plaintiff filed her Statement of Material Facts in Support of Her Response, ECF No. [24] (“Plaintiff's SMF”), and Defendant filed its Reply to Plaintiff's SMF, ECF No. [35] (“Defendant's SMF Reply”).


Based on the parties' respective statements of material facts in support of and in opposition to the Motion, along with the evidence in the record, the following facts are not genuinely in dispute, unless otherwise noted.

On the day of Plaintiff's fall, she and her husband arrived at the store around 11:00 a.m. ECF No. [17-2] at 21-22. It was not raining. Id. at 21. They went to the store for Plaintiff to exchange some shoes. Id. at 22. When they arrived, Plaintiff picked up a belt, and then went to get in line to exchange the shoes. Id. There was a woman in line behind Plaintiff, and Plaintiff's husband was behind the woman. Id. at 23. When she went to get in line, Plaintiff slipped. Id. Gonzalez testified at her deposition that she “heard that the girl from the store say what happened is that they cleaned last night, but they probably didn't clean too well.” Id. at 25. At the time Gonzalez fell, the lights at the store were on. Id. Plaintiff testified that she did not see any substance on the floor but saw that the floor was slippery and very shiny. Id. at 26. Plaintiff testified further that her husband arrived after she was on the floor. Id. at 29. Plaintiff stated that the did not know if her husband saw her fall. Id. at 29. In Plaintiff's description, her right foot slipped and she fell toward her left side, with her left knee hitting the floor. Id. at 31-32. She also caught herself with


her left hand on the floor. Id. at 34. Plaintiff testified that she did not slip on a liquid or on an object. Id. at 35. She testified further that there was nothing on the floor that she slipped on but that

[i]t was very shiny, very smooth, too smooth. Like when they put wax and they -don't put the machine very well afterwards.... It's smooth like when you have oil on it that is slippery. The wax does that to the floor. I know because I know how to clean floors. If you put wax and you don't put the machine enough, then the floor will be slippery

Id. at 37-38.

After Plaintiff fell, the girl next to her called the manager, the manager called security, and then the rescue was called. Id. at 35. Plaintiff's husband took pictures. Id. One of the pictures shows Plaintiff on the ground with numerous shiny lit spots on the floor. ECF No. [24-2]. According to Plaintiff, she heard the manager tell her husband that “that floor was cleaned last night.” ECF No. [17-2] at 41.

Plaintiff's husband, Armando Lucas Gonzalez, provided an affidavit, which states in pertinent part

6. While we were walking towards the register to pay for the shoes, my wife, who was walking about seven to eight feet in front of me, slipped and fell on what appeared to be excess floor wax left over by whoever had cleaned or waxed the floors. There were several areas on the floor that had leftover wax on it, and the floor was extremely slippery due to this excess wax. The excess wax left over is what caused my wife to slip and fall, and injure herself
[ . . . ]
10. While we were waiting for the paramedics to arrive, the Ross employee who appeared to be a regular store employee said, “The floors were cleaned last night by the cleaning company, and they have not cleaned up all the wax off the floor.”
11. In addition to the visible, shiny spot of wax residue upon which my wife slipped and fell, there were several other areas or spots in that aisle or pathway that also appeared to be covered by left[]over wax not removed by the cleaning company. These spots were visible upon inspection as they were shiny while the other areas of the floor, which had been properly cleaned, were not shine.

ECF No. [22] (“Gonzalez Affidavit”).


Ross provided the affidavits of three employees, Assistant Supervisor Marybi Viera Mendez, ECF No. [17-3], Store Protection Specialist Joel Balladares, ECF No. [17-4], and Senior Store Protection Specialist Wayne Martin, ECF No. [17-5], who each assert that he or she inspected the floor after Plaintiff fell, observed that the area was dry, and there was no liquid or any other substance on the floor where Plaintiff fell.


A party may obtain summary judgment “if the movant shows 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). An issue is genuine if “a reasonable trier of fact could return judgment for the nonmoving party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is material if it “might affect the outcome of the suit under the governing law.” Id. (quoting Anderson, 477 U.S. at 247-48). The Court views the facts in the light most favorable to the non-moving party and draws all reasonable inferences in the non-moving party's favor. See Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). “The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which a jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. Further, the Court does not weigh conflicting evidence. See Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1140 (11th Cir. 2007) (quoting Carlin Comm'n, Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d 1352, 1356 (11th Cir. 1986)).

The moving party shoulders the initial burden of showing the absence of a genuine issue of material fact. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). Once this burden is satisfied, “the nonmoving party ‘must do more than simply show that there is some metaphysical doubt as to the material facts.'” Ray v. Equifax Info. Servs., L.L.C., 327 Fed.Appx. 819, 825 (11th Cir. 2009)


(quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Instead, “the non-moving party ‘must make a sufficient showing on each essential element of the case for which he has the burden of proof.'” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Accordingly, the non-moving party must produce evidence, going beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designating specific facts to suggest that a reasonable jury could find in the non-moving party's favor. Shiver, 549 F.3d at 1343. Even “where the parties agree on the basic facts, but disagree about the factual inferences that should be drawn from those facts,” summary judgment may be inappropriate. Warrior Tombigbee Transp. Co., Inc. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983).


Defendant seeks summary judgment on the basis that there is no evidence it had actual or constructive knowledge of the alleged substance on the ground prior to Plaintiff's fall, and on the basis that causation cannot be inferred simply because an accident happened. In addition, Defendant contends that Plaintiff cannot establish that the floors were inherently slippery, and her claim of negligence depends upon unreasonable stacking of inferences that does not create a genuine issue of material fact. Plaintiff, on the other hand, argues that there is evidence of notice, and Defendant cannot meet the high burden for summary judgment, requiring the denial of the Motion. The Court considers each argument in turn.

A. Premises Liability Standard

The Court begins its analysis by pointing out that, in this diversity case, it must apply the substantive law of the state in which the case arose. See Pendergast v. Sprint Nextel Corp., 592 F.3d 1119, 1132-33 (11th Cir. 2010). For that reason, the Court looks to Florida negligence law.


In a negligence claim, Florida law requires that a plaintiff prove the following four elements: (1) the defendant had a duty to conform to a certain standard of conduct, (2) the defendant breached that duty, (3) the breach of that duty caused damages to the plaintiff, and (4) the plaintiff sustained damages. Encarnacion v. Lifemark Hosps. of...

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