DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

PUBLIX SUPER MARKETS, INC.,

Appellant,

v.

JOSEPH SAFONTE,

Appellee.

Nos. 4D2023-0216 and 4D2023-0815

[June 20, 2024]

Consolidated appeals from the Circuit Court for the Seventeenth 

Judicial Circuit, Broward County; Michael A. Robinson, Judge; L.T. Case 

No. CACE18-025607.

Edward G. Guedes and Lindsay Behnke of Weiss Serota Helfman Cole 

& Bierman, P.L., Coral Gables, for appellant.

Michael Ellis and Samuel Alexander of Alexander Appellate Law P.A., 

DeLand, for appellee.

ARTAU, J.

This case presents us with the question of whether a business 

establishment—Publix Super Markets (“Publix”)—can be held either 

directly or vicariously liable for the negligence of an invitee (“the invitee”) 

who negligently caused a slip and fall on the business premises without 

Publix having actual or constructive knowledge of the invitee’s negligence. 

Because we answer the question in the negative, we reverse and remand 

for entry of judgment in favor of Publix.

Background

After the invitee completed a delivery for a contractor that was 

conducting repairs on Publix’s premises, the invitee took a shopping cart

and began shopping in his personal capacity. The invitee went to the dairy 

department’s yogurt section where he picked up a few containers of yogurt

and put them in his shopping cart’s child seat.

While he continued shopping, a six-ounce yogurt container fell out of 
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the invitee’s shopping cart and spilled onto the floor. The container made 

a faint noise as it hit the ground.

Just before the container hit the ground, one of Publix’s employees was 

restocking the shelves in the cheese section. The employee was standing 

only a few feet from where the yogurt spilled, but he was facing the cheese 

section. In other words, the employee’s back was towards the spill 

location. When the container hit the ground, the employee did not turn 

around or otherwise take any action indicating he heard, saw, or became 

aware that a yogurt container had fallen out of the invitee’s shopping cart. 

Rather, the employee continued restocking the shelves seemingly unaware 

that yogurt had spilled onto the floor behind him.

The invitee, however, bent over to pick up the yogurt container. 

Without telling anyone about the spill, the invitee took what was left of the 

yogurt container back to the yogurt section to replace it.

Approximately two minutes later, Joseph Safonte (“the plaintiff”)

slipped and fell on the yogurt. At that point, the employee stopped 

restocking the cheese shelves and came to his aid. The plaintiff had yogurt 

on his clothing after the fall. Moreover, there was a trail of yogurt starting 

at the spill location and running through the dairy department.

The plaintiff sued Publix for his injuries resulting from the fall. Publix 

asserted a Fabre defense based on the invitee’s negligence and requested 

that the invitee be listed on the jury verdict form as a Fabre defendant.1

The jury found that both Publix and the invitee were negligent. The 

jury apportioned 40% of the fault to Publix and 60% to the invitee. The 

plaintiff was awarded total compensatory damages of $241,460.00.

Publix moved for a directed verdict arguing the evidence was 

insufficient for a reasonable jury to conclude it had actual or constructive 

knowledge of the spill. The trial court denied Publix’s motion.

1 “A ‘Fabre defendant’ is a nonparty defendant whom a party defendant asserts 

is wholly or partially responsible for the negligence alleged.” J.L. Prop. Owners 

Ass’n, Inc. v. Schnurr, 336 So. 3d 291, 296 (Fla. 4th DCA 2022) (quoting Royal 

Palm Hotel Prop., LLC v. Deutsche Lufthansa Aktiengesellschaft, Inc., 133 So. 3d 

1108, 1110 n.1 (Fla. 3d DCA 2014)); see also Fabre v. Marin, 623 So. 2d 1182, 

1187 (Fla. 1993), receded from in part on other grounds in Wells v. Tallahassee 

Mem’l Reg’l Med. Ctr., Inc., 659 So. 2d 249, 254 (Fla. 1995) (interpreting 

comparative fault statute as permitting the assertion of a Fabre defense to 

apportion damages based on each alleged tortfeasor’s percentage of fault). 
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The plaintiff then moved to hold Publix jointly and severally liable for 

the invitee’s negligence, arguing that Publix owed the plaintiff a nondelegable duty. The trial court granted the plaintiff’s motion.

The trial court then entered a final judgment in the plaintiff’s favor and 

a separate judgment taxing court costs against Publix. From these 

judgments, Publix appeals.

Analysis

I. Sufficiency of the Evidence

We review de novo an order denying a motion for directed verdict. Vill. 

of Tequesta v. Luscavich, 240 So. 3d 733, 738 (Fla. 4th DCA 2018).

The evidence on a motion for directed verdict is viewed “in [the] light 

most favorable to the non-moving party.” Stanley v. Marceaux, 991 So. 2d 

938, 940 (Fla. 4th DCA 2008). “A motion for directed verdict should be 

granted when there is no reasonable evidence upon which a jury could 

legally predicate a verdict in favor of the non-moving party.” Vill. of 

Tequesta, 240 So. 3d at 738 (quoting Etheredge v. Walt Disney World Co., 

999 So. 2d 669, 671 (Fla. 5th DCA 2008)).

“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.” § 768.0755(1), Fla. 

Stat. (2018).

Because no evidence indicated Publix had actual knowledge of the spill, 

our analysis focuses solely on why the evidence is insufficient to prove that 

Publix had constructive knowledge of the spill.

Section 768.0755(1) provides two ways in which a plaintiff can prove 

constructive knowledge. A plaintiff can prove “[t]he 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[.]” 

§ 768.0755(1)(a), Fla. Stat. (2018). Alternatively, a plaintiff can prove “[t]he 

condition occurred with regularity and was therefore foreseeable.” 

§ 768.0755(1)(b), Fla. Stat. (2018).

Here, the evidence is insufficient to prove, under either section 

768.0755(1)(a) or (b), that Publix had constructive knowledge of the spill.
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A. Length of Time

While there is no bright-line rule for how much time must elapse before 

constructive knowledge can be imputed to a defendant, “a reasonableness 

standard” governs whether “the dangerous condition existed sufficiently 

long enough that it would have been discovered in the exercise of 

reasonable care[.]” McCarthy v. Broward Coll., 164 So. 3d 78, 81 (Fla. 4th 

DCA 2015).

Because the yogurt spill was on the floor for only two minutes before 

the plaintiff slipped on it while the employee was restocking the shelves

with his back towards the spill, the spill could not have been discovered

by Publix while exercising ordinary care. See Speedway, LLC v. Cevallos, 

331 So. 3d 731, 735 (Fla. 4th DCA 2021) (“Constructive knowledge in this 

case was not proved by the amount of time the substance had been on the 

floor[] because the puddle was only on the concrete for 111 seconds before 

[the plaintiff] fell.”).

Although the plaintiff argues the employee should have been aware of 

the spill because the yogurt container made a sound when it fell behind 

him, the evidence reflects that the container, which only weighed six 

ounces, did not make a loud noise as it fell onto the floor. Rather, the 

evidence reflects that the container only made a faint sound. We cannot 

infer that a reasonable employee would have heard the faint sound and 

could have taken action to prevent the plaintiff’s fall during the two 

minutes the yogurt was on the floor.

Therefore, constructive knowledge of the spill cannot be imputed to 

Publix based on the short period of time that elapsed between the spill and 

the plaintiff’s fall.

B. Regularity of Condition

To prove a dangerous condition occurred with regularity, the plaintiff 

must provide “evidence of recurring or ongoing problems that could have 

resulted from operational negligence or negligent maintenance[.]” 

Speedway, LLC, 331 So. 3d at 735 (quoting Owens v. Publix Supermarkets, 

Inc., 802 So. 2d 315, 320 (Fla. 2001)). “The dispositive issue is whether 

the specific method of operation was negligent and whether the accident 

occurred as a result of that negligence.” Owens, 802 So. 2d at 332.

But here, Publix was not responsible for the yogurt container falling out 

of the shopping cart and spilling onto the floor. Only the invitee was

responsible for the yogurt container falling out of his shopping cart.
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Therefore, the yogurt spill was not the result of a regularly occurring 

dangerous condition created by Publix that could support an imputation

of constructive knowledge to Publix.

II. Non-Delegable Duty Doctrine

Because the question of whether Publix can be held liable for the 

invitee’s negligence is a pure question of law, the standard of review on 

this issue is de novo. See D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 

(Fla. 2003) (“The standard of review for the pure questions of law before us 

is de novo.”).

A business establishment owes a non-delegable duty to an invitee “to 

maintain the premises in a safe condition.” Pembroke Lakes Mall Ltd. v.

McGruder, 137 So. 3d 418, 431 (Fla. 4th DCA 2014). “[A] breach of [this] 

duty is a form of direct liability, in which a business owner may be liable 

to the plaintiff for negligently failing to take reasonable efforts to maintain 

the premises in a safe condition.” Id. Thus, a business establishment is 

“directly liable to an injured invitee if reasonable efforts are not made to” 

comply with its duty of care. Id.

“The non-delegable duty doctrine represents a narrow exception to the 

rule that an ‘employer’ who retains an independent contractor is not liable 

for the negligent acts of that contractor.” M.S. v. Nova Se. Univ. Inc., 881 

So. 2d 614, 620 (Fla. 4th DCA 2004). “Where there is a non-delegable 

duty, the employer hiring an independent contractor to perform services 

encompassed within that duty is vicariously liable when those services are 

performed negligently.” Id.

Thus, the key question is whether the invitee was hired or retained by 

Publix to “perform services encompassed within [its] duty[.]” Id. If Publix 

had hired or retained the invitee to service its premises, Publix could have 

been “vicariously liable” under the non-delegable duty doctrine if “those 

services [were] performed negligently.” Id.; see also Pembroke Lakes, 137 

So. 3d at 430 (“When an owner owes a non-delegable duty of care to a 

plaintiff who obtains a verdict assigning negligence to the owner and a 

party contracted by the owner, the owner is jointly and severally liable for 

the negligence attributed to the contracted party.”).

Here, Publix cannot be held liable for the invitee’s negligence because 

Publix never hired or retained the invitee to perform its duty of maintaining 

the premises in a safe condition for its patrons.

While the invitee initially came to Publix to deliver an item to a 
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contractor conducting repairs at the supermarket, the invitee was never 

hired or retained to assume Publix’s duty to maintain any of its premises, 

nor was he ever instructed or directed by Publix to maintain any of its 

premises during his visit to Publix. Rather, after his delivery, he simply 

began shopping in his personal capacity and was merely a customer with 

no responsibility to maintain Publix’s premises at the time of the spill.

Therefore, the non-delegable duty doctrine does not apply. Accordingly, 

Publix cannot be held liable for the invitee’s negligence.

Conclusion

Section 768.0755 does not permit us to conclude that a business 

establishment is liable for the negligent acts of a customer or invitee in the 

absence of actual or constructive knowledge of a dangerous condition on 

its premises created by the customer or invitee. Dangerous conditions are 

often caused by such negligence. However, the Legislature made it 

abundantly clear in section 768.0755 that for a business establishment to 

be held liable, it must have actual or constructive knowledge of the 

dangerous condition.

Because the evidence is insufficient for a reasonable jury to conclude 

that Publix had actual or constructive knowledge of the yogurt spill, and 

Publix cannot be held liable for the invitee’s negligence, we reverse the final 

judgment entered in the plaintiff’s favor, as well as the separate judgment 

taxing costs against Publix.

On remand, the trial court is instructed to grant Publix’s motion for 

directed verdict, deny the plaintiff’s motion to hold Publix jointly and 

severally liable for the invitee’s negligence, and enter judgment for Publix.

Reversed and remanded with instructions.

WARNER and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.