McCarthy v. Broward Coll.

• Decision Date: 06 May 2015
• Docket Number: No. 4D13–3843.,4D13–3843.
• Citation: 164 So.3d 78
• Parties: Linda McCARTHY, Appellant, v. BROWARD COLLEGE and Sunshine Cleaning Systems, Inc., Appellees.
• Court: Florida District Court of Appeals

164 So.3d 78

Linda McCARTHY, Appellant

v.BROWARD COLLEGE and Sunshine Cleaning Systems, Inc., Appellees.

No. 4D13–3843.

District Court of Appeal of Florida, Fourth District.

May 6, 2015.

Joshua S. Beck of Bazinsky, Korman & Baker, P.A., Plantation, for appellant.

Surama Suarez of Angones, McClure & Garcia, P.A., Miami, for appellee Broward College.

Opinion

FORST, J.

Appellant Linda McCarthy filed a personal injury complaint against Appellee Broward College when she slipped and fell on an unidentified liquid in an elevator on the College's Coconut Creek campus on August 25, 2011. Broward College moved for summary judgment, arguing the Plaintiff could not prove actual or constructive knowledge of the dangerous condition, as required by section 768.0755, Florida Statutes (2011). The trial court granted the motion, finding that Broward College was a “business establishment” for the purposes of the statute and ruling that there was no genuine issue of fact to be resolved regarding Broward College's lack of notice of the allegedly dangerous condition.

Appellant now appeals the entry of summary judgment, arguing the trial court improperly applied the statute to Broward College, that genuine issues of material fact remain, and that Broward College violated its common law duty of care. Because we disagree with Appellant's contentions, we affirm the entry of summary judgment and write for the limited purposes of 1) establishing that section 768.0755, Florida Statutes (2011), does apply to public institutions of higher learning, like Broward College, and 2) reaffirming that there are situations when it is appropriate to grant summary judgment in favor of a defendant in a slip and fall suit brought under section 768.0755, Florida Statutes (2011).

I. Broward College is a “Business Establishment ”

Section 768.0755, Florida Statutes (2011), states:

(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.

(emphasis added). Appellant contends that, because Broward College is a state-owned institution of higher education, it is not a “business establishment” for the purposes of this statute. We disagree.

“[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931) ). Furthermore, this Court is “without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.” Id. (quoting Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968) ).

In Publix Supermarkets, Inc. v. Santos, 118 So.3d 317 (Fla. 3d DCA 2013), the Third District found it necessary to define “business establishment” as used in the statute. That court held “[t]he plain and ordinary meaning of a term can be ascertained through the use of a dictionary.” Id. at 320. Relying on a dictionary, the Third District defined “business establishment” as “a location where business is conducted, goods are made or stored or processed or where services are rendered.” Id. (internal quotations and citations omitted). We agree with the Third District's definition of the term and hold that Broward College is a business establishment where “services are rendered” for a fee. Furthermore, while a college seems quite different than a grocery store or other retail outlet, this statute has been held to apply to other service-based, government-owned entities, such as Miami International Airport (Kenz v. Miami–Dade Cnty., 116 So.3d 461 (Fla. 3d DCA 2013) ) and a U.S. Postal Service facility (Kertz v. U.S., 2013 WL 1464180 (M.D.Fla. Apr.10, 2013) ). Therefore, we affirm the trial court's application of section 768.0755, Florida Statutes (2011), in this case.¹

II. Summary Judgment was an Appropriate Disposition

“Summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Jelic v. CitiMortgage Inc., 150 So.3d 1223, 1224–25 (Fla. 4th DCA 2014) (quoting Allenby & Assocs., Inc. v. Crown St. Vincent Ltd., 8 So.3d 1211, 1213 (Fla. 4th DCA 2009) ). When evaluating summary judgment evidence, the court must “draw every reasonable inference in favor of the non-moving party.” Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786, 788 (Fla. 4th DCA 1995).

In this case, even drawing every reasonable inference in favor of the non-moving party, Broward College was entitled to judgment in its favor as a matter of law. The facts of this case are similar to Walker v. Winn–Dixie Stores, Inc., 160 So.3d 909 (Fla. 1st DCA 2014), Delgado v. Laundromax, Inc., 65 So.3d 1087 (Fla. 3d DCA 2011), and Publix Super Markets, Inc. v. Schmidt, 509 So.2d 977 (Fla. 4th DCA 1987). In Walker, the First District affirmed a summary judgment on behalf of a Winn–Dixie grocery store, noting there was no evidence of how long the dangerous condition existed before the fall, no evidence that wet conditions occurred with regularity in the area where the plaintiff fell, nor any “evidence of active negligence by Winn–Dixie employees.” Walker, 160 So.3d at 913.

In Delgado, the plaintiff slipped and fell in a laundry facility, claiming that she slipped on water on the floor. Delgado, 65 So.3d at 1090. The plaintiff was unable to determine where the water came from, how long it had been on the floor, or if anyone at the facility knew there was water on the floor before she walked in. Id. The Third District affirmed the trial court's granting of summary judgment, noting there was no evidence “that it was raining or that it had rained recently, or that any of the facility's washers, sinks, or other equipment was located near the door.” Id.

Likewise, in Schmidt, a customer slipped near the deli counter, but did not know what caused her to slip. Schmidt, 509 So.2d at 978. The plaintiff testified that she thought she slipped on grease, as there was a greasy stain on her skirt, but no other witnesses saw anything on the floor. Id. Although a former employee testified that he had seen some drops on the floor on previous occasions, which he believed were from overfilling of gravy on a food tray, there was no evidence of any recent spills. Id. This court held that there was “no proof that Publix or its employees were at fault, or that the substance was on the floor for a sufficient length of time to put a defendant on notice.” Id. Because of this lack of proof, the jury's verdict impermissibly relied on “inferences on top of inferences” to explain the fall. Id.

Following the rule established in these cases, summary judgment in favor of Broward College was appropriate. Appellant provided no facts indicating how Broward College was liable for her fall, as she was unable to identify the liquid in the elevator, determine how long it had been there, or establish if anyone at Broward College had actual or constructive notice of its presence. Moreover, no evidence was presented or argument made that “[t]he condition [ (an allegedly wet elevator floor) ] occurred with regularity and was therefore foreseeable.” § 768.0755(1)(b), Fla. Stat. (2011). In fact, given the limited evidence presented to the trial court, Appellant's theory of the case, that the liquid in the elevator was rainwater, would require the stacking of inferences and a disregard of Appellant's testimony in order...