UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

FORT LAUDERDALE DIVISION 

CASE NO. 20-CIV-61608-RAR 

TOMASA FORTANELI PONCE, 

 Plaintiff, 

vs. 

WAL-MART STORES EAST, LP, 

 Defendant. 

_________________________________/ 

DEFENDANT’S MOTION FOR DIRECTED VERDICT

Defendant, Wal-Mart Stores East, L.P. (“Wal-Mart”), by and through undersigned counsel and 

under Federal Rule of Civil Procedure 50(a) and the applicable Local Rules of the United States 

District Court for the Southern District of Florida, hereby files its Motion for Directed Verdict, 

and in support states: 

I. Preliminary Statement 

Plaintiff sued Wal-Mart based on an alleged slip and fall incident that occurred in its store. The 

only count against Wal-Mart is a simple negligence claim. The ultimate issue in a negligence 

claim, such as this one, is whether the defendant had actual or constructive notice of a dangerous 

condition. Wal-Mart moves for a directed verdict because Plaintiff has failed to adduce evidence 

that Wal-Mart was on notice of a dangerous condition. Therefore, Wal-Mart cannot be liable as a 

matter of law. The facts and inferences point strongly and overwhelmingly in favor of Wal-Mart 

that reasonable men could not arrive at a contrary verdict, specifically because: 

(1) there is no testimony whatsoever that anyone from Wal-Mart was aware of the substance 

on the floor before Plaintiff slipped; and 

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(2) the evidence set forth by Plaintiff as to constructive notice is patently insufficient to support 

the reasonable inference that Wal-Mart should have known about the substance. 

See Palavicini v. Wal-Mart Stores E., LP, 787 F. App'x 1007, 1013 (11th Cir. 2019); Berbridge v. 

Sam's E., Inc., No. 17-14234, 2018 WL 1357372, at *3 (11th Cir. Mar. 16, 2018). 

Accordingly, this Court should remove the case from the jury and enter a directed verdict for 

Wal-Mart. 

II. Statement of the Facts 

A. Legal standard for Rule 50(a) motions for directed verdict 

The Eleventh Circuit has set forth the applicable standard for review on a motion for directed 

verdict: 

On motions for directed verdict and for judgment notwithstanding 

the verdict the Court should consider all of the evidence - - not just 

the evidence which supports the non-mover’s case - - but in light 

and with all reasonable inferences most favorable to the party 

opposed to the motion. If the facts and inferences point so strongly 

and overwhelmingly in favor of one party that the Court believes 

that reasonable men could not arrive at a contrary verdict, granting 

of the motion is proper. On the other hand, if there is substantial 

evidence opposed to the motions, that is, evidence of such quality 

and weight that reasonable and fair minded men in the exercise of 

impartial judgment might reach different conclusions, the motions 

should be denied, and the case submitted to the jury. A mere scintilla 

of evidence is insufficient to present a question for the jury. The 

motions for directed verdict and judgment n.o.v. should not be 

decided by which side has the better of the case, nor should they be 

granted only when there is a complete absence of probative facts to 

support a jury verdict. There must be conflict in substantial evidence 

to create a jury question.

Von Stein v. Breschner, 904 F.2d 572, 578 (11th Cir. 1990) (quoting Boeing Co. v. Shipman, 411 

F.2d 365, 374-75 (5th Cir. 1969)) (emphasis added). Directed verdicts are appropriate when there 

is no substantial conflict in evidence to support a jury question. See Carter v. City of Miami, 870 

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150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 

F.2d 578, 581 (11th Cir. 1989). “[T]he Court views the evidence and all logical inferences 

therefrom in the light most favorable to the non-moving party.” Pica Servs., Inc. v. Behringer, 593 

F. Supp. 113, 115 (S.D. Fla. 1984) (citing Neff v. Kehoe, 708 F.2d 639 (11th Cir. 1983)). 

In the instant matter, if the Court views the above evidence and all logical and reasonable 

inferences in the light most favorable to Plaintiff, there is still no substantial conflict in evidence 

to support a jury question—there is no evidence, expert or otherwise, which would permit a 

negligence finding under any theory. 

B. There is no evidence, expert or otherwise, permitting a negligence finding 

It is undisputed that Plaintiff was an invitee at a Wal-Mart store at the time of the incident. As 

a business owner, Wal-Mart owed two duties to invitees: (1) to take ordinary and reasonable care 

to keep its premises reasonably safe; and (2) to warn of perils known or that should have been 

known and of which the invitee could not discover. See Delgado v. Laundromax, Inc., 65 So. 3d 

1087, 1089 (Fla. 3d DCA 2011). The mere fact, however, that an invitee slips and falls on the floor 

of a defendant’s premises does not constitute evidence of negligence; negligence may not be 

inferred from the mere happening of an accident alone. See Belden v. Lynch, 126 So. 2d 578, 581 

(Fla. 2d DCA 1961). Rather, a plaintiff must demonstrate a breach in the duty of care owed by the 

defendant. 

Plaintiff’s cause of action triggers Florida Statutes § 768.0755, titled “Premises liability for 

transitory foreign substances in a business establishment.”1

 Section 768.0755 sets forth the burden 

of proof Plaintiff must meet to establish such a breach. Section 768.0755 provides that a person 

                                                            

1

 A federal court siting in diversity applies 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). 

Plaintiff’s negligence claim arises from alleged injuries sustained at a Wal-Mart store in 

Florida. Thus, the principles of Florida law govern this action. 

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who slips and falls on a transitory substance in a business establishment must “prove that the 

business establishment had actual or constructive knowledge of the dangerous condition and 

should have taken action to remedy it.” The plaintiff may prove the business establishment has 

constructive knowledge by circumstantial evidence showing: 

(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. 

Id.

Florida Statutes § 768.0755 does not provide for strict liability standard for slips on transitory 

conditions—negligence may not be concluded from the mere happening of an accident alone. See

Winn-Dixie Stores, Inc. v. Marcotte, 553 So. 2d 213, 214 (Fla. 5th DCA 1989) (“An entity in the 

actual possession and control of a premises, such as a supermarket, to which members of the public 

are invited, is not an insurer of the safety of such persons...”). 

Wal-Mart cannot be held liable under a theory of constructive notice without evidence of how 

long the substance existed on the floor before the alleged incident. See Berard v. Target Corp., 

559 F. App’x 977 (11th Cir. 2014) (affirming summary judgment when the plaintiff had not shown 

the spill existed for such a length of time that the defendant-store should have known about it); 

Ayers v. Wal-Mart Stores, E., L.P., No. 15-24663-CIV, 2017 WL 747541, at *2 (S.D. Fla. Feb. 27, 

2017) (“[T]he mere presence of the substance on the floor is not enough; the record must have 

additional facts to create a permissible inference about the time the foreign substance had been on 

the floor.... without this evidence, a finding of negligence would be sheer speculation.”) (emphasis 

added) (citation omitted). 

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HAMILTON, MILLER & BIRTHISEL, LLP 

150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 

Plaintiff has presented no evidence to demonstrate Wal-Mart had actual or constructive notice 

of the presence of any dangerous condition on the floor. Therefore, a judgment as a matter of law 

is appropriate because Plaintiff has established no breach in the duty of care owed by Wal-Mart. 

C. There is no evidence to support actual knowledge of a foreign substance on the floor. 

The record is devoid of any evidence sufficient to raise a genuine issue of fact regarding WalMart’s actual notice of the allegedly dangerous condition. An owner has actual knowledge of a 

dangerous condition when the owner or one of their agents knows or creates the dangerous 

condition. See Barbour v. Brinker Florida, Inc. 801 So. 2d 953, 957 (Fla. 5th DCA 2001). 

The Plaintiff has presented no evidence that any Wal-Mart associate had actual knowledge 

of the liquid prior to Plaintiff’s incident. 

Here, there is no dispute that Wal-Mart did not have actual knowledge of the liquid 

substance on the floor prior to Plaintiff’s incident as there is no evidence whatsoever that a WalMart employee caused the liquid substance to be on the floor or that a Wal-Mart employee knew 

the substance was on the floor prior to Plaintiff’s incident. As the Plaintiff has not produced any 

evidence that Wal-Mart caused the liquid substance to be on the floor or knew there was a liquid 

substance on the floor prior to her incident, she has failed to prove that Wal-Mart had actual 

knowledge of the liquid substance on the floor prior to Plaintiff’s incident. 

Without actual notice, Plaintiff’s only avenue to meet the mandates of section 768.0755 is 

to prove that Wal-Mart had constructive notice of the liquid substance on the floor prior to her 

incident. Plaintiff is similarly unable to prove constructive notice. 

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150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 

D. There is a lack of evidence to support constructive knowledge of a foreign substance 

on the floor. 

There is also no evidence demonstrating Wal-Mart had constructive knowledge of the 

presence of a foreign substance on the floor before the fall. Wal-Mart does not dispute that the 

water came from a roof leak. However, there is no evidence that the roof was leaking for such a 

length of time that Wal-Mart should have known of the leak. “[T]he mere presence of water on 

the floor is not enough to establish constructive notice’—rather, the record must contain 

additional facts to create a permissible inference regarding the amount of time the water had been 

on the floor.” Palavicini v. Wal-Mart Stores E., LP, 787 F. App'x 1007, 1013 (11th Cir. 2019); 

(citing Delgado v. Laundromax, Inc., 65 So. 3d 1087, 1090 (Fla. 3d DCA 2011). 

 Plaintiff primarily relies upon three points to establish Wal-Mart was on constructive 

notice: (1) the water was dirty; (2) the water had foot prints; and (3) a Wal-Mart associate is seen 

in the nearby area in the approximately one minute and eighteen seconds prior to the incident. 

However, these facts fail to create a reasonable inference that the substance was on the floor for 

an amount of time such that Wal-Mart should have been on constructive notice. 

(i) That the water was dirty and had footprints does not create the reasonable 

inference that the water had been on the floor for any length of time. 

 As to Plaintiff’s arguments that constructive notice exists because the substance was dirty, 

and had footprints have been rejected by the Courts in this District and found to be insufficient, 

standing alone, to establish constructive notice. Courts have found that these facts, without more 

do not lead to reasonable inferences and thus cannot be relied upon as a basis for constructive 

notice. 

Under federal law, an inference must be “reasonable.” See Berbridge v. Sam's E., Inc., No. 

17-14234, 2018 WL 1357372, at *3 (11th Cir. Mar. 16, 2018) citing Daniels v. Twin Oaks Nursing 

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150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 

Home, 692 F.2d 1321, 1326 (11th Cir. 1982). A reasonable inference is one that a “reasonable and 

fair-minded [person] in the exercise of impartial judgment might draw from the evidence.” Id. 

Reasonable inferences may rest in part on conjecture, “for an inference by definition is at least 

partially conjectural.” Id. But a jury cannot be “allowed to engage in a degree of speculation and 

conjecture that renders its finding a guess or mere possibility.” Id. “Such an inference is infirm 

because it is not based on the evidence.” A party can rely on circumstantial evidence, however, 

the initial inference must be established to the exclusion of any other reasonable theory or 

inference. Nunez v. G.F. Car Center, Inc., 877 So. 2d 31, 33 (Fla. 3d DCA 2004)(dissenting 

opinion). The established rule of evidence is that we cannot construct a conclusion upon an 

inference which has been superimposed upon an initial inference supported by circumstantial 

evidence unless the initial inference can be elevated to the dignity of an established fact because 

of presence of no reasonable inference to the contrary. Id. 

 As a threshold matter, the condition of the substance alleged by Plaintiff does not amount 

to a reasonable inference of constructive notice. 

 In Berbridge, the plaintiff slipped and fell on a “dark” and “dirty” substance which she 

alleged came from an A/C leak. Berbridge v. Sam's E., Inc., 728 F. App'x 929, 933 (11th Cir. 

2018). Despite the claim that the substance was dirty, and that there was a footprint in it, the 

Eleventh Circuit affirmed summary judgment in favor of the defendant and found “the record 

lacks any evidence from which a reasonable jury could conclude that the substance was "dark" 

and "dirty" because it was present on the floor for a period long enough to charge Sam's Club with 

constructive knowledge. Id. In so holding, the court found that these facts failed to establish a 

reasonable inference of constructive knowledge: 

In this case, we conclude that the evidence is not enough for a reasonable jury to 

infer that the liquid substance "had been on the floor for a sufficient length of time 

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150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 

to charge the store owner with constructive knowledge of its presence." While 

Berbridge [the Plaintiff] presented evidence of the source of a "dark" and "dirty" 

substance, there is no evidence that the substance was not "dark" and "dirty" when 

it fell from the AC unit, and Berbridge did not provide any additional detail about 

what she meant by these terms. A reasonable jury could not infer from her vague 

comments that the substance was "dark" and "dirty" because it was on the floor for 

such a length of time that Sam's Club should have known about it and acted to 

remedy it. 

Id. at 932 (internal citations omitted). 

 The Eleventh Circuit further elaborated that “there was no evidence that ‘the [liquid 

substance] was not already ["dark"] and ["dirty"] when it reached defendant['s] floor’ and that 

“[t]he fact that the substance was "dark" and "dirty" gives rise to nothing more than a "guess or 

mere possibility" that it was on the floor for a period of time sufficient to create constructive notice. 

Id. at 934 (citing Daniels, 692 F.2d at 1326). The court found determinative that the plaintiff did 

not see the substance before she fell, and that there was no indication as to when the water began 

to drip from the AC unit before her fall. Id. at *15-16 (emphasis in original). 

 Similarly, in Palavicini v. Wal-Mart Stores E., LP, 787 F. App'x 1007, 1009 (11th Cir. 

2019), the Plaintiff slipped and fell on an A/C leak. The Plaintiff argued that Wal-Mart was on 

constructive notice because, inter alia, the substance was "yellow" and "dirty,” and the size of the 

spill was large enough such that it required "considerable amount of spill magic” to clean. 

Palavicini v. Wal-Mart Stores E., L.P., No. 1:18-CV-20708-MORE, 2018 U.S. Dist. LEXIS 

143663, at *6-7 (S.D. Fla. Aug. 22, 2018). The trial Court, in granting summary judgment, found 

that “To create a genuine issue based on the appearance of the transitory liquid, there must be 

evidence sufficient to show that the liquid became dirty and yellow after it reached the floor; 

otherwise, its appearance supports no inference about how much time it has been on the floor. It 

is the change in condition that supports this inference.” Id. at *7-8 (emphasis in original). As 

described by the District Court: 

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HAMILTON, MILLER & BIRTHISEL, LLP 

150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 

Plaintiff stated that after she stepped on the liquid, she noticed it was "yellowish," 

"musky," and "dirty," but she did not know whether her shoe had caused the liquid 

to turn that color. Id. at 101-104. Plaintiff does not know, and there is no evidence 

from which to surmise, whether the liquid was dirty and yellowish when it got to 

the floor. There is no evidence of footprints, prior track marks, change in 

consistency, drying of the liquid, or other evidence to show that the liquid was on 

the floor for a length of time that Defendant should have known about it and taken 

action to remedy it. In sum, the condition of the liquid on the floor after her fall 

does not support a reasonable inference regarding the length of time the substance 

was on the floor prior to her fall. 

This case is factually indistinguishable from Berbridge. In that case, the plaintiff 

slipped on a liquid substance at a Sam's Club store. The plaintiff, like in this case, 

did not see the substance before slipping and did not know how long it had been 

there. The plaintiff testified that the substance was medium sized, dark, and dirty. 

Id. at *8-9. 

 The Eleventh Circuit affirmed the District Court’s Order granting summary judgment, 

finding that the Plaintiff’s testimony that the substance appeared to be "yellow" and "dirty," but 

that she did not know what caused the liquid to be dirty was insufficient to create an issue of fact 

or a reasonable inference that the liquid was on the floor for an amount of time sufficient to impute 

constructive notice on Wal-Mart.2

 Palavicini v. Wal-Mart Stores E., LP, 787 F. App'x 1007, 1012 

(11th Cir. 2019). The Eleventh Circuit held: “To conclude that Wal-Mart had constructive notice 

under Fla. Stat. § 768.0755(1)(a), would require drawing a series of impermissible inferences that 

are unsupported by the record. See Daniels, 692 F.2d at 1324 ("[A]n inference is not reasonable if 

it is only a guess or a possibility, for such an inference is not based on the evidence but is pure 

conjecture and speculation. This proposition is undoubtedly sound." (internal quotation marks 

omitted)). Id. at 1013-1014. 

                                                            

2 Just as here, the CCTV in Palavacini did not show any liquid leaking or on the floor. Id. at 

1013. 

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 Identical to Palavicini and Berbridge, Plaintiff here does not know when the liquid came 

to be on the floor and cannot say whether the substance was dirty in its original form when it leaked 

from the roof. Plaintiff further did not see the liquid before she fell, and cannot say whether the 

footprints she saw were there before she slipped. Plaintiff also only offered vague description as 

to the size of the leak, and testified that she never actually saw any leak from the roof. 

 Pursuant to Eleventh Circuit authorities in Palavacini and Berbridge, a direct verdict in 

favor of Wal-Mart is proper is this case. see also Hernandez v. Sam's E., Inc., No. 20-CV-61648-

RAR, 2021 U.S. Dist. LEXIS 79275, at *12 (S.D. Fla. Apr. 26, 2021)( courts have also found that 

the mere presence of footprints or marks, standing alone, may not constitute competent evidence 

tending to show the length of time that a substance has been on the floor.)(citing Calvache v. 

Jackson Memorial Hosp., 588 So. 2d 28, 29 (Fla. 3d DCA 1991) (affirming summary judgment in 

favor of defendant where plaintiff alleged a shoe mark was present near the liquid causing her 

injury); Rubiano v. Costco Wholesale Corp., No. 15-24291, 2016 U.S. Dist. LEXIS 138508, 2016 

WL 7540571, at *3 (S.D. Fla. Oct. 4, 2016) (granting summary judgment for defendant 

supermarket even though plaintiff testified that "skid marks," that had allegedly been present for 

over seventeen minutes, were in the liquid she slipped on)).

 Also instructive is Hernandez v. Sam's E., Inc., No. 20-CV-61648-RAR, 2021 U.S. Dist. 

LEXIS 79275, at *14-15 (S.D. Fla. Apr. 26, 2021), in which the Plaintiff slipped and fell on a 

liquid in a Sam’s Club store. The plaintiff “did not see the liquid on the floor before she fell, (2) 

admitted that she did not "know if the [footprints/marks] were there before [she] fell", and (3) had 

no idea whether the prints or marks she observed after her fall were caused to be there before or 

after the liquid was spilled on the floor. Id. (internal citations omitted). The Court granted 

summary judgment in favor of the defendant finding “the mere presence of footprints or marks, 

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HAMILTON, MILLER & BIRTHISEL, LLP 

150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 

standing alone, may not constitute competent evidence tending to show the length of time that a 

substance has been on the floor.” Id. at *12. 

 In Rubiano v. Costco Wholesale Corp., No. 1:15-cv-24291-UU, 2016 U.S. Dist. LEXIS 

138508, at *6-7 (S.D. Fla. Oct. 4, 2016), the plaintiff alleged she slipped and fell on a substance 

in a Costco Store, and argued there was a genuine factual dispute because, inter alia she "saw at 

least one big mark in the middle of the liquid" after her fall. Id. The Court rejected this argument, 

finding: 

The Court concludes that no reasonable jury could find that Defendant had 

constructive knowledge of the unknown spilled substance that caused Plaintiff's 

injury. This is true for three reasons. First, there is no evidence of the length of time 

that the liquid was on the floor. While Plaintiff argues that the evidence shows that 

there were "skid marks[s]" through the liquid substance and that the substance was 

located in a high-traffic area of the Property, the record evidence, in fact, contains 

uncontroverted evidence that Plaintiff: (1) did not see the liquid before slipping; (2) 

had no idea if marks in the substance on the floor were there before she fell; and, 

in any event, (3) could not identify "anyone else's footprints," "shopping cart 

tracks," or any other marks in the substance that she slipped on when reviewing a 

photograph of the unknown substance taken soon after her slip-and-fall. Plaintiff's 

claim cannot survive summary judgment based on her unsubstantiated argument 

that there were "skid mark[s]" in the unidentified substance indicating that the spill 

was on the floor for a long period of time. Hammonds v. Fulton Cty., 628 F. App'x 

716, 717 (11th Cir. 2016) ("Mere conclusions and factual allegations unsupported 

by evidence are insufficient to survive a motion for summary judgment."); Cordoba 

v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) ("Speculation does not 

create a genuine issue of fact; instead, it creates a false issue, the demolition of 

which is a primary goal of summary judgment"). 

Id. at *7-8. 

In a recent Eleventh Circuit case, Espinoza v. Target Corp., 843 F. App'x 168, 169 (11th Cir. 

2021), the plaintiff slipped and fell at a Target store on a puddle of milk. Id. Photographs of the 

scene showed at least one footprint in the puddle. Id. The plaintiff argued that there was a disputed 

fact as to whether Target had constructive knowledge because the “jury could infer from Target's 

lack of an inspection policy, the temperature of the milk, the size of the puddle, and a footprint in 

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HAMILTON, MILLER & BIRTHISEL, LLP 

150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 

the puddle that it existed for a sufficient length of time to put Target on constructive notice of the 

dangerous condition.” Id. at 170. The plaintiff claimed that because the milk was warm when she 

slipped and because there was testimony that the milk was stocked in the refrigerator section of 

the store, that this was indicative that the puddle had been there for some time. Id. at 172-73. The 

Court rejected these arguments and affirmed summary judgment in favor of Target, noting that the 

plaintiff did not know how long the milk had been outside the refrigerator when it was spilled, nor 

did she witness the milk being spilled or feel its temperature when it was spilled. Id. The Eleventh 

Circuit expressly agreeing with the district court’s ruling that the plaintiff failed to point to any 

specific facts to support her inference that the milk was cold at the time it was spilled. Id. The 

Eleventh Circuit found that the plaintiff’s claim that the milk was cold when it was spilled was 

pure speculation and conjecture which could not support an inference that the puddle was on the 

floor for a sufficient time to put Target on notice. Id. The Court further found that the footprint 

in the milk did not support an inference of constructive notice because the photograph which 

showed the footprint was taken after customers and paramedics had been in the area. Id. at 170 

(discussing the district court’s determination). 

In another recent case, Struck v. Wal-Mart Stores E., LP, No. 2:19-cv-598-FtM-38NPM, 2021 

U.S. Dist. LEXIS 39651, at *5 (M.D. Fla. Mar. 3, 2021), the Court granted summary judgment in 

a slip and fall case where the plaintiff claimed that water leaking from the roof on a rainy day 

caused her incident. Id. In support of this theory, the plaintiff relied on multiple prior issues with 

the roof during the same year, and the fact that the roof was repaired a few days after her fall. Id. 

The plaintiff also relied upon the size of the puddle to show constructive notice. However, no one 

knew how long the water was on the floor prior to the incident, and no one knew where the water 

came from. Id. at *9. The Court further found that there was no evidence that problems with the 

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roof led to a water puddle on the floor. Id. In granting summary judgment, the Struck Court noted 

that the plaintiff presented no more evidence than Palavicini, supra, as to constructive notice. Id.

at *13-14. 

Consistent with the case law cited above, the Plaintiff’s claims that the liquid was dirty and 

contained footprints is not determinative. Any argument that the water was on the floor for enough 

time that Wal-Mart was on constructive notice is purely speculative and conjecture, and does not 

a support a reasonable inference. 

“If a plaintiff does not identify evidence to suggest the length of time that a liquid was on the 

floor, there is no genuine dispute of material fact, and a defendant is entitled to summary 

judgment." Espinoza, 2021 U.S. App. LEXIS 1373, 2021 WL 164507, at *3 (11th Cir. Jan. 19, 

2021) (affirming district court's grant of summary judgment in a transitory substance case where 

jury could only speculate as to how long the puddle was on the floor). 

The record evidence establishes exactly the contrary of constructive notice. It demonstrates 

Wal-Mart was exercising ordinary care in maintaining the premises in a reasonably safe manner 

so there was no constructive knowledge of a dangerous condition. See Fla. Stat. § 766.0755. 

Plaintiff has presented no evidence showing the alleged substance was on the floor for a sufficient 

period of time such that Wal-Mart should have known of its presence. 

(ii) A Wal-Mart employee in the area of the incident does not defeat a directed verdict 

Plaintiff also presents the argument that a Wal-Mart employee walked by the area 

approximately one minute and eighteen seconds before Plaintiff’s fall. However, this is not 

sufficient to create an issue to proceed to the jury. As a preliminary matter, there is no evidence 

that the leak had already begun before the employee walked by, or that the employee was close 

enough to see the liquid on the ground assuming it was there at the time he passed by. It would be 

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an unreasonable inference to assume (1) the water was already there when he walked by and (2) 

that he was able to see the liquid on the ground in the first instance. See Rubiano v. Costco 

Wholesale Corp., No. 1:15-cv-24291-UU, 2016 U.S. Dist. LEXIS 138508, at *7-9 (S.D. Fla. Oct. 

4, 2016)(granting summary judgment where the plaintiff argued that the defendant had actual 

notice because the incident occurred during a high traffic time and area, finding that there was no 

evidence that the employees were close enough to see the liquid on the ground). 

Similarly in Palavicini, the plaintiff argued that the defendant was not entitled to summary 

judgment because the CCTV footage showed that that a Wal-Mart employee walked by and stood 

in the immediate area where the plaintiff slipped and fell approximately two minutes before the 

incident. Palavicini, 787 F. App'x at 1009. The plaintiff argued that the size of the spill, which 

was large enough to use a considerable amount of spill magic to clean, gave the reasonable 

inference that the leak had begun before the employee walked by the area and that there was 

enough liquid on the floor to be observable to the employee. The Eleventh Circuit, in affirming 

summary judgment in favor of the defendant, found “the evidence insufficient to support a 

reasonable inference that the liquid was on the floor long enough to establish Wal-Mart's 

constructive notice.” Id. 

In Berbridge, a Sam’s Club employee had an unobstructed view of the Plaintiff’s incident and 

was standing on the other sider end of the aisle. Berbridge, 2017 U.S. Dist. LEXIS 132888, at 

*18-20. The Eleventh Circuit affirmed summary judgment in favor of the defendant finding that 

there was no evidence to demonstrate that the substance on the floor was visible from the 

employee’s viewpoint. Id. 

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HAMILTON, MILLER & BIRTHISEL, LLP 

150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 

Because there is no evidence sufficient to support a reasonable inference that the liquid was on 

the floor at the time that the employee walked by, or that he was close enough to be able to see the 

liquid had it been there, a directed verdict in favor of Wal-Mart is proper. 

(iii) There is no evidence that the condition was foreseeable 

The other manner Plaintiff might establish constructive knowledge would be to demonstrate a 

substance on the floor was a regular occurrence, and therefore foreseeable. But Plaintiff has 

presented no evidence about any other slip and fall occurrences in the area where this incident 

occurred, and there is no testimony regarding any prior slip and falls due to roof leaks in the area. 

Therefore, Plaintiff has failed to satisfy her burden of establishing constructive notice. See 

Palavicini, 2018 U.S. Dist. LEXIS 143663, at *18-19 (granting summary judgment finding there 

was no foreseeable condition where there was a single leak that previously occurred, holding that 

“regularity ... must be that the dangerous condition occurred more than once, or at a minimum, 

that the dangerous condition persisted after that single proved occasion.”); Rubiano, 2016 U.S. 

Dist. LEXIS 138508, at *9 (“Lastly, there is no evidence that would tend to prove that spills in the 

area where Plaintiff slipped occurred ‘with regularity and [were] therefore foreseeable.’”); Struck, 

2021 U.S. Dist. LEXIS 39651, at *4-5 (finding the leaking roof was not foreseeable despite prior 

issues, finding that Walmart had no reason to believe that the roof in that particular area would 

leak and allow an accumulation of water on the floor). 

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CASE NO. 20-CIV-61608-RAR 

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HAMILTON, MILLER & BIRTHISEL, LLP 

150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 

Conclusion

Wal-Mart respectfully request the Court enter judgment as a matter of law for Wal-Mart, and 

for such other, further, and different relief as this Court should deem just and proper. 

Dated: June 15, 2021 

 Respectfully submitted, 

/s/Suzette L. Russomanno 

 Jerry D. Hamilton, Esq. 

 Florida Bar No. 970700 

jhamilton@hamiltonmillerlaw.com 

Suzette L. Russomanno, Esq. 

Florida Bar No.: 751081 

srussomanno@hamiltonmillerlaw.com

HAMILTON, MILLER & BIRTHISEL, LLP 

150 Southeast Second Avenue, Suite 1200 

Miami, Florida 33131-2332 

Telephone: (305) 379-3686 

Facsimile: (305) 379-3690 

Attorneys for Defendant Wal-Mart Stores 

East LP 

Case 0:20-cv-61608-RAR Document 59 Entered on FLSD Docket 06/15/2021 Page 16 of 17
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HAMILTON, MILLER & BIRTHISEL, LLP 

150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 

CERTIFICATE OF SERVICE 

 I HEREBY CERTIFY that on June 15, 2021, I electronically filed the foregoing 

document with the Clerk of the Court using CM/ECF. I also certify that the foregoing 

is being served this day on all counsel of record or pro se parties identified on the 

following Service List in the manner specified, either via transmission of Notices of 

Electronic Filing generated by CM/ECF or in some other authorized manner for those 

counsel or parties who are not authorized to receive electronically notices of Electronic 

Filing. 

/s/ Suzette L. Russomanno 

 Suzette L. Russomanno

SERVICE LIST 

Carlos A. Jordi, Esq. 

Rubenstein Law, P.A. 

201 N. University Drive, Suite 700 

Plantation, Florida 33324 

Telephone: (305) 661-6000 

Facsimile: (305) 670-7555 

cjordi@rubensteinlaw.com 

crios@rubensteinlaw.com 

eservice@rubensteinlaw.com 

Attorneys for Plaintiff Tomasa Fortaneli Ponce 

Case 0:20-cv-61608-RAR Document 59 Entered on FLSD Docket 06/15/2021 Page 17 of 17