[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12049

Non-Argument Calendar

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LINDA FELDER, 

Plaintiff-Appellant,

versus

SAM’S EAST, INC., 

d.b.a. SAM’S CLUB # 6341, 

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:22-cv-60962-BB

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Before ROSENBAUM, GRANT, and ED CARNES, Circuit Judges.

PER CURIAM:

After Linda Felder slipped on water inside a Sam’s store, she 

filed a lawsuit in Florida state court against Sam’s East, Inc. (d/b/a 

Sam’s Club #6341), alleging negligence. Sam’s Club removed the 

case to federal court based on diversity jurisdiction and moved for 

summary judgment, which the district court granted. Felder appeals. Because our best interpretation of Florida law is that there 

is a genuine dispute of material fact as to Sam’s Club’s constructive 

notice that water was on the floor, we reverse that grant of summary judgment. 

I. Background Facts and Procedural History

On June 15, 2021, Felder was shopping in the coffee aisle of 

the Sam’s Club Supermarket in Broward County, Florida. Then, in 

her words: “I start sliding. Next thing I know, I was on the floor.” 

She found herself lying on her back and realized she had hit her 

head on the concrete floor. Looking up, she saw people gathered 

around her and heard them referring to “water.” Paramedics arrived and took her to the hospital. 

Not until the paramedics had placed her on the stretcher did 

Felder see the “puddle” of water on which she had slipped. There 

is no direct evidence of how the water got on the floor or how long 

it had been there. Felder was unable to describe its color or say if 

anyone had walked through it or pushed a cart through it. 

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Four Sam’s Club employees arrived on the scene of the slip. 

Three of them testified in this case and described the water that had 

felled Felder. Club manager John Irving Padget saw “droplets” and 

“a small pool of water.” Associate Antolin Jenkins saw “specs of 

water” he considered “fresh.” Associate Adie George Frances described the mess as “only water drippings.” None of them saw 

footprints, dirt, skid marks, or cart marks. 

Another customer used Felder’s phone to take photographs 

of her lying on the ground after she slipped. Four of those photographs are in evidence, and their authenticity is not challenged 

(though the photographer is unknown). Here’s a representative 

example:

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No one was sure how much time had passed since a Sam’s 

Club employee had last inspected the coffee aisle. Associate 

Frances explained that the store was divided into about seven “areas” or “zones” (which varied in size but might contain, for example, four or five aisles), and the store “always ha[d] two persons [i]n 

each area.” Manager Padget testified that Sam’s Club “want[ed] to 

inspect each area of the store hourly” and that inspection sweeps 

were “supposed to be an hourly thing.” But there’s no documentation logging when the sweeps occur, and no documentation 

about “who was the last person in that [coffee] aisle” before 

Felder’s fall. 

After the accident, Padget did not ask any of the employees 

under his supervision if they had been in that aisle recently. He 

said that associate Jenkins was one of the employees “zoning in that 

area.” But Jenkins did not remember if he had been in the coffee 

aisle within the last three hours. Immediately before the fall, he 

had been working in the soup aisle for (he thought) fifteen minutes, 

and before that he had been doing online work. There is no evidence about any second person assigned to that zone.

When it granted summary judgment in favor of Sam’s Club, 

the district court relied on the photographs and testimony from 

the Sam’s Club employees to find that “no reasonable juror could 

infer . . . any evidence of footprints, prior track marks, or changes 

in consistency of the water in order to find that Defendant was on 

constructive notice because the dangerous condition had existed 

for a sufficiently long time.” It also rejected Felder’s theories that 

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Sam’s Club had constructive notice because spills were so regular 

as to be foreseeable and that Sam’s Club should be sanctioned for 

failing to preserve evidence because employees cleaned up the spill 

before photographing it. 

II. Discussion

We review de novo a district court’s grant of summary judgment. Sutton v. Wal-Mart Stores E., LP, 64 F.4th 1166, 1168 (11th 

Cir. 2023). We draw all inferences in the light most favorable to 

the non-moving party and recognize that summary judgment is appropriate only if there are no genuine issues of material fact. Id. 

Because our jurisdiction depends on diversity of citizenship, 

see 28 U.S.C. § 1332, we apply the substantive law of the forum 

state, Florida, see Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938);

Sutton, 64 F.4th at 1168. “[F]ederal courts are bound by decisions 

of a state’s intermediate appellate courts unless there is persuasive 

evidence that the highest state court would rule otherwise.” Bravo

v. United States, 577 F.3d 1324, 1325 (11th Cir. 2009) (quotation 

marks omitted).

Under Florida statutory law, “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.” Fla. Stat. § 768.0755(1). One way 

to prove constructive knowledge is by presenting “circumstantial 

evidence” showing that “[t]he dangerous condition existed for such 

a length of time that, in the exercise of ordinary care, the business 

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establishment should have known of the condition.” Id. § 

768.0755(1)(a). That is how Felder means to carry her burden, and 

the issue before us is whether she has marshalled sufficient evidence of constructive notice to survive summary judgment.1 

Lacking Florida Supreme Court precedent on point, we look to the 

decisions of Florida’s district courts of appeals. Bravo, 577 F.3d at 

1325–26.

Under those decisions, “the mere presence of water on the 

floor is not enough to establish constructive notice.” Delgado v.

Laundromax, Inc., 65 So. 3d 1087, 1090, 1088 (Fla. 3d DCA 2011) 

(affirming the grant of summary judgment to the defendant where 

the plaintiff testified that the water on which she slipped was 

“clear”). Instead, as this Court has explained, “Florida’s appellate 

courts have found constructive notice when the offending liquid 

was dirty, scuffed, or had grocery-cart track marks running through 

it, or if there was other evidence such as footprints, prior track 

marks, changes in consistency, or drying of the liquid.” Sutton, 64 

F.4th at 1170 (alterations adopted) (quotation marks omitted); see 

also id. at 1167 (reversing the grant of summary judgment to the 

defendant store where the plaintiff slipped on “a squished grape, 

accompanied by juice, a track mark, and footprints”). 

1 To win a slip-and-fall negligence case, a plaintiff must also establish 

(1) duty, (2) breach, (3) causation, and (4) harm. See Williams v. Davis, 974 So. 

2d 1052, 1056 (Fla. 2007); Sutton, 64 F.4th at 1169. 

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Our best interpretation of Florida law is that there is a genuine issue of material fact as to whether Sam’s Club had constructive notice of the water on which Felder slipped. That conclusion 

is based on two pieces of evidence: photographs which a reasonable jury could interpret as showing that the water was dirty and 

partially dried, and testimony allowing the inference that Sam’s 

Club had not inspected the site of the slip for an hour or more before the fall.

A reasonable jury could view the photographs of the water

as evidence that it had partially dried. Sam’s Club observes that the 

reflection of light in the water indicates that it was still wet, but 

that’s not true of all the water in the photographs. Some droplets 

appear to have dried. Several courts interpreting Florida law have 

decided that drying indicates a substance has been there long 

enough that the store should have noticed it. See, e.g., Sutton, 64 

F.4th at 1170; Welch v. CHLN, Inc., 357 So. 3d 1277, 1278–79 (Fla. 

5th DCA 2023); Norman v. DCI Biologicals Dunedin, LLC, 301 So. 3d 

425, 430 (Fla. 2d DCA 2020).

Not only that but a jury could find that the water was dirty. 

By itself, that detail isn’t enough to establish constructive notice. 

See Welch, 357 So. 3d at 1279. But along with the other evidence, it 

contributes to showing a genuine issue of material fact about Sam’s 

Club’s constructive knowledge of the spill. See, e.g., Mashni v.

Lasalle Partners Mgmt. Ltd., 842 So. 2d 1035, 1036–38 (Fla. 4th DCA

2003) (reversing the grant of summary judgment to the defendant 

where the plaintiff slipped in “a puddle of water” and testified that 

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the water was “dirty” and that “some of the dirt stuck to his 

hand”).2

The testimony about the passage of time between aisle inspections inside Sam’s Club also contributes to a showing of constructive knowledge. As the district court noted and Sam’s Club 

now emphasizes, “the fact there was no inspection for a given 

length of time in itself provides no proof that the defect was actually 

there for a sufficient period to place a landowner on reasonable notice of its existence.” Wal-Mart Stores, Inc. v. King, 592 So. 2d 705, 

707 (Fla. 5th DCA 1991) (emphasis added).

But Florida appellate courts regularly rely on the length of 

time between inspections (alongside evidence of a spill’s physical 

properties) to conclude that a plaintiff has created a genuine issue 

of material fact about whether the defendant had constructive 

knowledge of a floor’s hazardous condition.3 “[T]he time between 

2 Sam’s Club responds to the photographic evidence by denying that 

it could be interpreted to show the water was dirty and dry and by insisting 

that it fails to support constructive notice without corroborating testimony 

about the water’s state. But Florida law does not require testimony to establish 

the physical features of the water; it requires evidence. See Sutton, 64 F.4th at 

1170. The photographs are evidence. And a jury can determine what the photographs show.

3 See Norman, 301 So. 3d at 431, 428–30 (reversing the grant of summary judgment to the defendant based on both (1) “a cup’s worth of soiled 

water” alongside footprints and slide marks and (2) the fact that “none of the 

[defendant’s] employees, including the receptionist, recalled inspecting the 

men’s donor bathroom on the day of the incident”); Gerard v. Eckerd Corp., 895 

So. 2d 436, 436–38 (Fla. 4th DCA 2005) (reversing the grant of summary 

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inspections necessary to give rise to an inference that the dangerous condition existed sufficiently long enough that it would have 

been discovered in the exercise of reasonable care must be governed by a reasonableness standard, giving due consideration to the 

size, nature, and inherent risks of the area in question.” McCarthy

v. Broward Coll., 164 So. 3d 78, 81 (Fla. 4th DCA 2015). This Court 

— surveying caselaw in which there was evidence of the length of 

time between employee inspections and later accidents – has observed that “Florida’s courts have found at least fifteen to twenty 

minutes to be sufficient for defendants to be charged with 

knowledge of the condition and a reasonable time in which to 

judgment to the defendant where the manager had confirmed the aisle was 

clean “approximately ten minutes prior to the accident,” explaining that “there 

[we]re issues of fact as to whether the inspection, and inspection policy, were 

reasonable” because “there [was] no evidence that written and reasonably frequent inspection procedures were in place or followed”); Brooksv. Phillip Watts

Enterprises, Inc., 560 So. 2d 339, 342 (Fla. 1st DCA 1990) (reversing the grant of 

summary judgment to the defendant where the plaintiff slipped on rainwater 

near the entrance and there was evidence that “the area had not been inspected” for “some thirty minutes to an hour before appellant’s fall”); see also 

Teate v. Winn Dixie Stores, Inc., 524 So.2d 1060, 1060–61 (Fla. 3d DCA 1988) 

(reversing the grant of the defendant’s motion for directed verdict where there 

was testimony that (1) “no employee had cleaned the area for fifteen to twenty 

minutes before the fall” and (2) “there was some water on the floor around 

the peas” (possibly reflecting that the peas had “thawed”)); Winn Dixie Stores,

Inc. v. Williams, 264 So. 2d 862, 863–64 (Fla. 3d DCA 1972) (upholding a jury 

verdict for the plaintiff in a slip-and-fall negligence case based on (1) testimony 

that the substance on which the plaintiff fell was “sticky, dusty and dirty”; and 

(2) testimony that the store manager “made periodic inspections” of the store 

and had last visited the aisle where the plaintiff fell “fifteen to twenty minutes 

before the accident occurred”). 

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correct it,” while “[o]ther decisions in Florida have determined that 

thirteen minutes or less is not enough time.” Sutton, 64 F.4th at 

1169 (alterations adopted) (quotation marks omitted).

Here, the store manager said inspections were performed 

hourly (at least, they were “supposed” to be, and that’s what he 

“wanted”). The only known employee assigned to the zone where 

the fall occurred was not sure when he had last inspected the aisle, 

or even if he had done so within the last three hours. Alongside 

the photos, those facts could support a jury finding that the water 

was on the floor long enough that Sam’s Club reasonably should 

have discovered and remedied it. See, e.g., Brooks, 560 So. 2d at 342 

(“some thirty minutes to an hour” between inspection and fall); 

Teate, 524 So.2d at 1060–61 (“fifteen to twenty minutes”); Williams, 

264 So. 2d at 863–64 (“fifteen to twenty minutes”).

III. Conclusion 

There is a genuine issue of material fact as to whether the 

water on which Felder slipped “existed for such a length of time 

that, in the exercise of ordinary care, the business establishment 

should have known of the condition” and “should have taken action to remedy it.” Fla. Stat. § 768.0755(1)(a).4 Of course “when 

4 Having reached that conclusion based on the photographic evidence 

and testimony about the length of time between inspections, we do not reach 

and express no view on Felder’s theories that summary judgment was improperly awarded to Sam’s Club because (1) “[t]he condition occurred with regularity and was therefore foreseeable,” Fla. Stat. § 768.0755(1)(b); and (2) Sam’s 

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we write to a state law issue, we write in faint and disappearing ink, 

and once the state supreme court speaks the effect of anything we 

have written vanishes like the proverbial bat in daylight, only 

faster.” LeFrere v. Quezada, 582 F.3d 1260, 1262 (11th Cir. 2009) 

(quotation marks omitted). Still, based on the decisions of Florida’s 

appellate courts, see Bravo, 577 F.3d at 1325–26, we reverse the 

grant of summary judgment to Sam’s Club and remand for further 

proceedings consistent with this opinion.

REVERSED AND REMANDED.

Club should have been sanctioned for spoliating evidence (i.e., cleaning up the 

spill before photographing it).

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