By: Kimberly Nuñez, Esq.
In its recent opinion in Wilson-Green v. The City of Miami, et al., 42 Fla. L. Weekly D237a (Fla. 3d DCA 2017) affirmed summary judgment in favor of building owner and maintenance company on the issues of duty and constructive notice. The Third District Court of Appeal went on to say that the owner and maintenance company did not owe plaintiff a legal duty to constantly patrol and supervise the area, and the mere presence of soup which is “not hot” on the floor is not enough to establish constructive notice as to defendants.
Under Florida premises liability law, a property owner owes a business invitee two legal duties: (1) the owner has a duty to use reasonable care in maintaining the premises in a reasonably safe condition; and (2) the owner has a duty to warn the invitee of concealed conditions which are or should be known to the owner and which are unknown to the invitee and cannot be reasonably discovered by the invitee through the exercise of reasonable care.
This duty extends to persons or entities responsible for the premises. Such a responsibility may arise out of a contract. Where a contract exists, such as a contract between a landowner and a maintenance company to provide cleaning and custodial services, a defendant’s liability extends to persons foreseeably injured by its failure to use reasonable care in performance of a contractual promise. All persons or entities responsible for the premises may be liable, but a plaintiff must also show that the defendant had actual or constructive notice of the dangerous condition. In determining whether a defendant had constructive notice, courts look at the length of time the condition existed before the accident occurred.
Wilson-Green involves a premises liability case stemming from a slip and fall accident that occurred in the lobby elevator bank of a building owned by the City of Miami (“owner”) and maintained by Vista Maintenance Services, Inc., (“maintenance company”). Plaintiff sued both the building owner and the maintenance company for injuries she sustained when she slipped and fell on pea soup in the lobby area outside the elevator. The maintenance company was under a maintenance contract to provide cleaning and maintenance services for the building.
Both defendants moved for summary judgment on the grounds that it did not owe plaintiff a legal duty to constantly patrol and supervise the area, or in the alternative, it did not have actual or constructive notice of the dangerous condition.
On the issue of duty, the pertinent language of the maintenance contract required the maintenance company to “police [the] area…rearrange furniture…pay close attention” and emphasized the importance of maintaining the lobby area. Plaintiff argued that this language creates a duty to constantly patrol and supervise the lobby area. The Third District Court of Appeal disagreed, holding that the contract language did not create a duty to constantly patrol the premises, nor does the language hold defendants to a heightened duty of care.
On the issue of constructive notice, courts look at length of time the condition existed before the accident. Plaintiff testified that she had passed the same area 15 minutes prior to the subject fall and there had been nothing on the floor at that time. Plaintiff testified further that because the substance had been identified as soup and that said soup was “not hot” when she slipped and fell on it, that this infers that the soup had been there for a sufficient amount of time for it to have cooled.
The Third District Court of Appeal held that the mere presence of soup which is “not hot” on the floor is not enough to establish constructive notice as to defendants. The Third District Court of Appeal reasoned that merely because the substance was not hot does not infer that it was there for a substantial length of time for defendants to have known of its existence. To do that would require the jury to assume additional facts, such as the soup was hot prior to it being spilled, to reach the conclusion that the soup was on the floor for a sufficient amount of time for it to have cooled. The Third District Court of Appeal went on to say that the stacking of inferences is not permitted to establish the existence of constructive notice.
The Third District Court of Appeal determined that the lack of duty and constructive notice to be dispositive and affirmed summary judgment in favor the owner and maintenance company. This case supports the contention that a property owner does not owe a business invitee a legal duty to constantly patrol and supervise its premises for transitory foreign substances.