[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-13310

Non-Argument Calendar

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ELIMANIEL GONZALEZ, 

Plaintiff-Appellant,

versus

WAL-MART STORES, INC., 

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:21-cv-02077-KKM-JSS

____________________

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2 Opinion of the Court 22-13310

Before ROSENBAUM, JILL PRYOR, and GRANT, Circuit Judges.

PER CURIAM:

Elimaniel Gonzalez claims that Wal-Mart’s negligence 

caused his slip and fall. We vacate the district court’s grant of 

summary judgment for Wal-Mart because a reasonable jury could 

find that the company had notice of the substance that caused the 

accident.

I.

Everyone agrees that Elimaniel Gonzalez stepped on some 

sort of substance near a Wal-Mart store register, slipped, and fell. 

He did not see the substance before he slipped, but afterward said 

he saw “a white creamy liquid (similar to the color of the floor) 

about the size of a dinner plate.” Footage from Wal-Mart’s 

cameras captured the fall and the surrounding area both before and 

after the accident. 

Gonzalez sued Wal-Mart, and Wal-Mart moved for 

summary judgment, arguing that it had no notice of the dangerous 

condition (the substance) that caused the fall. Wal-Mart disclaimed

actual notice of the substance because its employees were not 

aware of the substance and did not cause it to be on the floor. Nor 

did it have constructive notice, Wal-Mart asserted, because there 

“is simply no evidence of the length of time the substance was on 

the floor.” Wal-Mart asserts that the substance was on the floor, at 

most, for twenty-one seconds. That is because shortly before the 

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22-13310 Opinion of the Court 3

fall, the footage shows a young child holding an object near the fall 

area. 

Gonzalez disagreed. He says the liquid dripped from an 

overloaded cart right next to the fall area. The footage shows 

employees loading the stationary cart with merchandise for over 

an hour and a half. About eight minutes before the fall, an 

employee moved the cart. For the next eight minutes, a white-ish 

smudge appears on the footage (and occasionally disappears) in the 

exact spot that Gonzalez later slipped. He claims that this footage 

supports his theory that the substance leaked from the cart, and 

that—at minimum—a dispute of material fact exists about the 

source of the substance. 

The district court sided with Wal-Mart. Although it 

acknowledged Gonzalez’s claim that the substance leaked from the 

cart, it decided that he had identified “no evidence” from which a 

reasonable jury could infer that Wal-Mart had notice of the 

substance. In evaluating Gonzalez’s shopping cart theory of actual 

notice, the court downplayed the footage showing “a white shape,” 

suggesting that it could have been “a trick of the lighting or a flaw 

in the film.” In ruling against constructive notice, the court 

similarly reasoned that the evidence was insufficient to show when 

the substance appeared, meaning a jury could not evaluate 

whether Wal-Mart should have noticed the hazard. Gonzalez now 

appeals. 

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4 Opinion of the Court 22-13310

II.

This Court reviews a grant of summary judgment de novo. 

Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1314 

(11th Cir. 2011). Along the way, we view the evidence and make 

all reasonable inferences in the light most favorable to the 

nonmoving party, Gonzalez. Id.

III.

At this stage in the case, Gonzalez’s claim rises and falls with 

the answer to one question: could a reasonable jury conclude that 

the substance leaked from the shopping cart? If so, then Wal-Mart 

could have had actual notice, because it caused the dangerous 

condition. See Barbour v. Brinker Fla., Inc., 801 So. 2d 953, 957 (Fla. 

Dist. Ct. App. 2001). And Wal-Mart could have had constructive 

notice, because then the dangerous condition could have “existed 

for such a length of time” that Wal-Mart “should have known of 

the condition.” Fla. Stat. § 768.0755. 

After carefully viewing the video footage, we conclude that 

a reasonable jury could decide that the substance leaked from the 

shopping cart. To start, the footage shows that the cart was parked 

close to the spot of the slip. For the first hour and thirty-six minutes 

of the footage, the cart sat adjacent to the floor area where 

Gonzalez later slipped. 

After the cart was removed, about eight minutes elapsed 

before the slip. During this time, a white-ish spot or smudge 

appears on the footage. The smudge appears in the exact same spot 

that Gonzalez later stepped on when he slipped. That spot on the 

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22-13310 Opinion of the Court 5

floor is also the exact same place where the employee later cleaned 

up the spill, soaking a paper towel. At times, the smudge 

disappears, coinciding most frequently with people passing nearby 

or their shadows covering the area. But no other portion of the 

footage behaves quite like this smudge. And it is telling that no 

smudge appeared before the cart was moved or after the slip and 

cleanup—only during the crucial eight minutes before the fall.

A reasonable jury could conclude, based on its location and 

persistence, that the smudge on the footage depicted the substance

itself or otherwise evidenced its presence. From that fact, it could 

also conclude that the shopping cart was the source of the 

substance, meaning that Wal-Mart had notice, actual or 

constructive.1 

That said, a reasonable jury could also discount this video 

evidence. It is true, as the district court stressed, that several people 

seemed to walk near, over, or even through the substance during 

the eight-minute period between the cart’s removal and the slip. 

And after he had slipped on the substance (presumably altering it 

in the process) Gonzalez did not report seeing any dirt, cart marks, 

or footprints visible in the liquid as he looked at it while walking 

away. All the same, the existence of evidence to counter 

Gonzalez’s theory of notice does not change the fact that he has 

1 To establish constructive notice, the jury would need to decide not only that 

the substance leaked from the cart, but also that it was “foreseeable” or on the 

floor “for such a length of time that, in the exercise of ordinary care” Wal-Mart 

“should have known of the condition.” Fla. Stat. § 768.0755(1)(a)–(b). 

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6 Opinion of the Court 22-13310

presented sufficient evidence that a reasonable jury could decide 

the question in his favor.

IV.

We REVERSE the district court’s grant of summary 

judgment for Wal-Mart and REMAND for proceedings consistent 

with this opinion.

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