[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 18

- 14329 Non

- Argument Calendar

________________________ D.C. Docket No. 1:18

- cv - 20708

- FAM

EVELYN PALAVICINI, Plaintiff

- Appellant,

versus WAL

- MART STORES EAST, LP., Defendant

- Appellee.

________________________ Appeal from the United States District Court for the Southern District of Florida

________________________ ( May 29, 2019 ) Before WILSON, MARTIN , and NEWSOM , Circuit Judges. PER CURIAM:

Case: 18-14329 Date Filed: 05/29/2019 Page: 1 of 142 Eve lyn Palavicini slipped and fell on liquid on the floor of a Wal

- Mart store. Palavicini did not know how or when the liquid got on the floor , but alleged that an unidentified female employee told her that the air conditioning vent above the incident area h a d been leaking for one week prior to the incident. Palavicini sued Wal

- Mart Stores East, L.P. in Florida state court, alleging that Wal

- Mart negligently (1) failed to maintain its property in a reasonably safe manner, and (2) failed to warn her of the da ngerous condition posed by the liquid on the floor. Wal

- Mart removed the case to federal court. The district court granted summary judgment in favor of Wal

- Mart, holding that Palavicini failed to provide sufficient evidence to support a reasonable infe rence that Wal

- Mart had constructive notice of the liquid on the floor. Palavicini appeal ed . After careful review, we affirm

. I. Factual and Procedural Background C losed circuit television ( CCTV ) footage shows the store’s assistant manager, Jorge Mastrapa, walking and standing in the immediate area where Palavicin i slipped and fell approximately two minutes before the incident

. After falling, Palavicini observed the liquid on the floor to be “yellow” and “dirty.” Palavicini testified that she did not see any liquid before falling

. She also does not know how the liquid got on the floor, the length of time it was on the floor, or whether any Wal

- Mart employee knew of the liquid on the floor prior to

Case: 18-14329 Date Filed: 05/29/2019 Page: 2 of 143 the i ncident. Palavicini claims she was told by an unidentified female employee that an air conditioning vent on the ceiling had been leaking for one week prior to the incident

. She testified , however, that she did not remember seeing the ceiling leak

. Palavicini ’s complaint alleges that Wal

- Mart was negligent in (1) failing to maintain its property in a reasonabl y safe manner, and (2) failing to warn her of the dangerous condition posed by the water on the floor. Wal

- Mart ’s m otion for summary judgment argues that there is no record evidence that it had actual or constructive notice of the liquid on the floor or a leak from the ceiling

. Wal

- Mart assert s that the record i s devoid of any evidence regarding (1) the length of time the liquid was present on the floor prior to the incident , and (2) any similar slip and fall incidents involving liquid on the floor or a leak from the ceiling

. The magistrate judge issued a Report and Recommendation (R&R) to grant Wa l

- Mart’s motion for summary judgment, reasoning that Palavicini provided insufficient evidence to support a reasonable inference that Wal

- Mart had constructive notice of the liquid on the floor. Specifically, Palavicini adduced insufficient evidence to es tablish that (1) the liquid was present for sufficient period of time to put Wal

- Mart on notice of its existence and to allow it the opportunity to remedy the condition, and (2) the dangerous condition occurred

Case: 18-14329 Date Filed: 05/29/2019 Page: 3 of 144 with such regularity that it was foreseeable. The district court adopted the magistrate judge’s R&R and granted Wal

- Mart’s motion for summary judgment. II. Discussion Palavicini contends that the district court erred in granting summary judgment because the record evidence establishes a genuine issue of material fact regarding whether Wal

- Mart had actual or constructive notice of the dangerous condition posed by the liquid on the floor prior to Palavicini’s fall. Palavic ini asserts that the district court failed to view the evidence and all reasonable inferences in the light most favorable to her. “We review a district court’s grant of summary judgment de novo, viewing all the evidence, and drawing all reasonable factual inferences, in favor of the nonmoving party.” Stephens v. Mid

- Continent Cas. Co. , 749 F.3d 1318, 1321 (11th Cir. 2014). Summary judgment must be granted “if the movant s hows that there is no genuine dispute as to any material fact and the movant is enti tled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is improper, however, “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986 ). To prevail on a negligence claim, a plaintiff must prove that (1) the defendant had a legal duty to protect the plaintiff from particular injuries ; (2) the

Case: 18-14329 Date Filed: 05/29/2019 Page: 4 of 145 defendant breached that duty ; (3) the defendant’s breach actually and proximately caused the pl aintiff’s injuries ; and (4) the plaintiff suffered actual harm. Zivojinovich v. Barner , 525 F.3d 1059, 1067 (11th Cir. 2008). With respect to the duty element, “[a] possessor of premises to which the public is invited has a legal duty to ascertain that t he premises are reasonably safe for invitees.” Skipper v. Barnes Supermarket , 573 So. 2d 411, 413 ( F la. 1st DCA 1991). This duty to business invitees equates to two legal duties: (1) to use reasonable care to maintain the premises in a safe condition, which includes a duty to use reasonable care to learn of the existence of any dangerous conditions on the premises , and (2) to give the invitee warning of concealed perils which are or should be known to the landowner, but are unknown to the inv itee and could not be discovered by him through the exercise of due care. Id. Under Florida law, which governs this diversity case, 1 a plaintiff brin g ing a negligence claim based upon a transitory foreign substance on the floor of a business must prove that the business had “actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.” Fla. Stat. § 768.0755(1).

1 A federal court sitting in diversity applies the substantive law of the state in which the case arose. Pendergast v. Spring Nextel Corp. , 592 F.3d 1119, 1132

– 33 (11th Cir. 2010).

Case: 18-14329 Date Filed: 05/29/2019 Page: 5 of 146 Actual knowledge of a dangerous condition exists when a business owner’s employees or agents know o f or create the dangerous condition. Barbour v. Brinker Fla., Inc. , 801 So. 2d 953, 957 (Fla. 5th DCA 2001). Constructive knowledge can be established by circumstantial evidence, by either showing that : (a) 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 th e condition ; or (b) T he condition occurred with regularity and was therefore foreseeable. Fla. Stat. § 768.07 55(1). i. Actual Notice Palavicini argues that Wal

- Mart was on actual notice that the air conditioning unit above the area where she fell was leaking. To prove actual notice , she relies on a statement made by an unidentified female employee that an air con ditioning vent on the ceiling had been leaking for one week prior to the accident

. Palavicini deposed t he two female employees who appeared after the accident , and both denied making this statement. The district court held that the alleged statement mad e by the unidentified female employee was hearsay without an applicable exception. We agree. 2

2 The out

- of

- court statement is being utilized to prove the truth of the m atter asserted

— that the air conditioning vent had been leaking for one week prior to Palavicini’s fall. It thus falls squarely within the definition of hearsay under Fed. R. Evid. 801(c).

Case: 18-14329 Date Filed: 05/29/2019 Page: 6 of 147 Palavicini asserts that the statement qualifies as an admission by an employee of a party opponent. Federal Rule of Evidence 801(d)(2) (D) governs the admission of statements made by employee s of a party opponent , and requires that the statement be made “by the part y’s agent or employee on a matter within the scope of that relationship and while it existed.” Beyond her general assertion that the statement was made, Palavicini has provided no other evidence to establish that the party opponent exception applies. Th e evidence presented fails to establish the identity of the speaker , whether the speaker was a Wal

- Mart employee, or whether the statement was even made. Without more evidence concerning the employee’s identity , we cannot determine whether that individual was an employee speaking in the scope of her employment. Thus, the statement amounts to inadmissible hearsay , and it cannot be u sed to defeat summary judgment. See McMillian v. Johnson , 88 F.3d 1573, 1584 (11th Cir. 1996) (affirming the district court’s grant of summary judgment, holding that inadmissible hearsay evidence may not be used to defeat a motion for summary judgment). Because Palavicini cannot establish actual notice, she must prove that Wal

Mart had constructive notice of the dangerous condition. ii. Constructive Notice U nder Fla. Stat. § 768.0755(1)(a) Case: 18-14329 Date Filed: 05/29/2019 Page: 7 of 148 Under Fla. Stat. § 768.0755(1)(a), Palavicini must establish that the “dangerous condition existed for such a length of time that in the exercise of reasonable care the c ondition would have been known to the defendant.” Grimes v. Family Dollar Stores of Fl a. , Inc. , 194 So. 3d 424, 427

– 28 (Fla. 3d DCA 2016). Palavicini argues that there is substantial evidence to support a finding that the liquid was present on the floo r before Wal

- Mart’s store manager, Jorge Mastrapa , traversed the area. Palavicini asserts that, in the two and a half minutes between Mastrapa passing by the area to when Palavicin i f e ll, CCTV footage shows that no customer spilled liquid on the floor. S he argues this evidence supports a reasonable inference that the liquid had been on the floor prior to Mastrapa passing through the area. Moreover, Wal

- Mart’s use of a “considerable amount of spill magic” 3 to absorb the liquid supports an inference that t here was enough liquid on the floor to be observable to Mastrapa. We find the evidence insufficient to support a reasonable inference that the l iquid was on the floor long enough to establish Wal

- Mart ’s constructive notice

. Taken in the light most favorable to Palavicini, the evidence shows that she slipped and fell on a liquid substance on the floor at Wal

- Mart

. Palavicini did not see the liquid before falling, did not know where the liquid came from, did not know how long it had been present befo re falling, and did not know of any Wal

-

3 Spill magic is an absorbent powder that is utilized to dry liquid

.

Case: 18-14329 Date Filed: 05/29/2019 Page: 8 of 149 Mart employees who were aware of the liquid on the floor immediately before falling. Although she testified that the liquid on the floor appeared to be “yellow” and “dirty,” she did not know what caused the liquid t o be dirty . There is no evidence of footprints, prior track marks, changes in consistency, drying of the liquid, or other evidence that would tend to show that the liquid was on the floor for a n amount of time sufficient to impute constructive notice to Wal

- Mart

. Palavicini asserts that no customer can be seen spilling liquid on the floor after Mastrapa passed through the area, which she argues supports an inference that the liquid was present prio r to Mastrapa ’s passing

. Palavicini cites Lyn ch v. Target Stores, Div. of Dayton Hudson Corp. , 790 So. 2d 1193, 1194 (Fla. 4th DCA 2001) , for the proposition that the lack of a potential cause for the presence of a foreign substan ce during a certain timeframe “supports a reasonable inference that the foreign substance had been on the floor” pr ior to that timeframe. But Lynch is factual ly distinguishable. In Lynch , the plaintiff contend ed that for a period of fifteen minutes, she and her daughter were shopping in the cosmetics area, within view of the nearby area where she later slipped and fell on a creamy substance

. Id. During that fifteen minutes, no Target employees or other customer s entered or exited the area where the fall occurred. Id. The court found that the facts supported a reasonable inference that the foreign substance had been on the floor for a minimum of fifteen

Case: 18-14329 Date Filed: 05/29/2019 Page: 9 of 1410 minutes

. Id. Whether fifteen minutes was a sufficient ti me in which Target should have become aware of the condition was a question left to the jury

. Id. Here, u nlike in Lynch , the CCTV footage shows numerous customers walking over the area where Palavicini fell

. Although Palavicini asserts that the footage shows that no customer spilled liquid on the floor after Mastrapa left the
area, she admits that she does not know how or when the liquid got on the floor

. She also concedes that the CCTV footage does not actually show any liquid on the floor or the ceiling leaking. Simply put, Palavicini cannot identify when the liquid presented itself. “[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. Delgado v. Laundromax, Inc. , 65 So. 3d 1087, 1090 (Fla. 3d DCA 2011). Palavicini has provided no additional f acts that would support constructive notice. Rather, the facts indicate that the liquid was not on the floor for a long period of time prior to the incident. 4 See Wal

- Mart Stores, Inc. v. King , 592 So. 2d 705, 706

– 07 (Fla. 5th DCA 1991) (reversing a jury verdict in favor of a slip

- and

- fall

4 The CCTV footage shows numerous customers walking over the accident area immediately before Palavicini fell , yet there were no footprints , cart tracks, or any other signs that the puddle had been dis turbed before the incident. To infer based on these undisputed facts that the liquid was on the floor for a sufficient period of time to charge Wal

- Mart with constructive notice would require assuming facts not supported by the record

.

Case: 18-14329 Date Filed: 05/29/2019 Page: 10 of 1411 plaintiff when the spilled substance displayed no “obvious signs of age, such as skid marks, smudges, dirt or the like” and there was no evidence about how or when the substance got on the floor) ; see also Garcia v. Wal

- Mart Stores East , L.P. , No. 6:14

- cv - 255

- Orl

- 40TBS, 2015 WL 898 582, at *2 (M.D. Fla. Mar. 3, 2015) (noting that evidence of deterioration supports constructive knowledge, while absence of such evidence disproves it)

. 5 To conclude that Wal

- Mart ha d constructive notice under Fla. Stat. § 768.0755(1)(a), would require drawing a series of impermissible inferences that

a re 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 conjec ture and speculation. This proposition is undoubtedly sound.” (internal quotation marks omitted)). iii. Constructive Notice Under Fla. Stat. § 768.0755(1)( b )

5 Palavicini relies on th is Court’s unpublished decision in Doudeau v. Target Corp. , 572 F. App’x 970, 97 1

– 7 2 (11th Cir. 2014) , where we reversed the district court’s grant of summary judgment because there was evidence that the area where the plaintiff fell was a known slip and f

all area, and evidence that it was raining on the day in question. As the district court correctly pointed out, Doudeau is distinguishable. T he fact that the defendant had knowledge of the source of the water , and that water would accumulate in the known slip and fall area when it was raining or had rained , precluded summary judgment for the defendant. See id. at 972

. Palavicini has failed to produce similar evidence to impute constructive notice to Wal

- Mart. See Brooks v. Phillip Watts Enters

. , Inc. , 560 So. 2d 339, 342 (Fla. 1st DCA 1990) (reversing the grant of summary judgment in favor of defendant because constructive notice could be inferred from defendant’s prior knowledge of the slippery condition of the floor when wet, and prior knowledge of the source of the water that caused the condition).

Case: 18-14329 Date Filed: 05/29/2019 Page: 11 of 1412 Palavicini argues that even if the record evidence is deficient to establish that the l iquid was on the floor for a sufficient amount of time to impute constructive notice to Wal

- Mart under Fla. Stat. § 768.0755(1)(a), constructive notice can be imputed to Wal

- Mart u nder Fla. Stat. § 768.0 755(1)(b)

. Fla. Stat. § 768.0755(1)(b) requires a showing that a “condition occurred with regularity and was therefore foreseeable.” She argues that Wal

- Mart knew that the air conditioning unit above the area where she fell frequently leak ed , which is

su fficient to place Wal

- Mart on constructive notice of the leak on the da te of the incident

. 6 Palavicini relies on four pieces of evidence to establish that the leak occurred with regularity: (1) a former Wal

- Mart employee, Angel Luis Mesa, testi fied that he observed a leak on a few occasions in the ceiling above where Palavicini fell; ( 2 ) Wal

- Mart’s Asset Protection Assistant Manager , Jose Perez Del Rio, testi fied that he was aware of other ceiling leaks at the store; ( 3 ) an affidavit from Palavicini’ s air conditioning expert, John Provenzano, explaining that the leak occurred because the air conditioning unit did not have the appropriate safety float switch ; and ( 4 ) a work order issued two months before the incident that addressed a leak in the air conditioning unit above the area where Palavicini fell

.

6 The district court correctly noted that Wal

- Mart contests the fact that there was a leak, but for purposes of summary judgment, we must accept Palavicini’s assertion that there was a ceiling leak on the date of the incident

.

Case: 18-14329 Date Filed: 05/29/2019 Page: 12 of 1413 Although Mesa testified that he had observed on a few occasions a leak from the ceiling above the area where Pala vicini fell, he had “no knowledge as to the specific date and time [he] observed the leaks ” and did not know of anyone falling because of the leaks. Perez Del Rio similarly testi fied that he was aware of leaks at the store but did not know of any leaks re garding the specific air condition ing vent directly above where Palavicini fell. We find these statements insufficient to establish that a leak above the incident are a occurred with such regularity that it would foreseeabl y reoccur on the date of the accident. Palavicini also relies on Provenzano’s affidavit, which expresses opinions regarding the subject air conditioning uni t
. Provenzano believed that the leak was caused by the lack of a “safety float switch” in the air conditioning unit. He observed water damage in the ceiling above where Palavicini fell and opin ed that the damage was indicative of prior water intrusions and leaks. His also noted extensive amounts of rust, sludge, and algae in the unit. But as the district court noted, Provenzano inspected the air conditioning unit in June 2018

— four years after Palavicini’s accident. The district court held that Provenzano’s “opinion provides no basis from which a reasonable fact finder could conclude that the dama ge Mr. Provenzano witnessed in June 2018 was present at or around the time of [Palavicini’s] accident.” We agree. Provenzano’s affidavit fails to establish that th e air conditioning unit was in a similar poor condition in 2014. His affidavit is

Case: 18-14329 Date Filed: 05/29/2019 Page: 13 of 1414 therefor e insufficient to demonstrate foreseeability of a dangerous condition on the date of the accident. Finally, Palavicini relies on a work order , which indicates that a leak in the air conditioning unit at issue was fixed two months prior to the incident. But again, to prove constructive notice under Fla. Stat. § 768.0755(1)(b), Palavicini must demonstrate that the leak that caused her fall “occurred with regularity.” A n isolated work order that was issued two months before the incident is insufficient to show that th e air conditioning unit leaked regularly. 7 We find that Palavicini has failed to adduce evidence sufficient to establish that the dangerous condition

— a ceiling leak that caused Palavicini to slip and fall

— occurred with such re gularity that it was foreseeable on the date of the incident. III. Conclusion Palavicini has failed to produce sufficient evidence to support a reasonable inference that Wal

- Mart had actual or constructive notice of the liquid on the floor or a leak from the ceiling . We therefore affirm the district court’s grant of summary judgment in favor of Wal

- Mart. AFFIRMED.

7 Moreover, t he work order fails to indicate whether the leak from the air condition ing unit reached either the ceiling or the floor.

Case: 18-14329 Date Filed: 05/29/2019 Page: 14 of 14