DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

SPEEDWAY, LLC,

Appellant,

v.

GLORIA CEVALLOS,

Appellee.

No. 4D20-1120

[December 15, 2021]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Lisa S. Small, Judge; L.T. Case No. 50-2016-CA-002299-

XXXX-MB.

Michael K. McCaffrey and Andrew S. Connell, Jr. of Litchfield Cavo LLP, 

Fort Lauderdale, for appellant.

Blair M. Fazzio and Berkin Aslan of Kanner & Pintaluga, P.A., Boca 

Raton, for appellee.

WARNER, J.

Speedway LLC appeals a final judgment which awarded appellee Gloria 

Cevallos substantial damages related to a slip and fall at a Speedway gas 

station. It contends that the court erred in denying its motion for directed 

verdict, as appellee failed to prove that Speedway had constructive 

knowledge of a dangerous condition. Because appellee failed to offer 

evidence of a dangerous condition or that any condition existed for a period 

of time sufficient to establish constructive notice of it, the trial court erred 

in denying the motion for directed verdict. We reverse.

Appellee Cevallos pulled into a gas pump at a Speedway gas station and 

went inside the station to pay for the gas. As she was walking back to her 

car, another car ahead of her car exited out of the station. In a surveillance 

video, the exiting car left behind a puddle of liquid. Cevallos began to 

pump her gas. While waiting for the gas to finish, she moved toward the 

trash can nearby to throw something away. She took a few steps around 

the pump and slipped on a liquid substance of oil and gas left by the car 

that had vacated the premises 111 seconds earlier. Cevallos fell to the 
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ground in pain. She testified that she had not seen the puddle at any time 

prior to her accident. Her clothes were soaked with gasoline from her fall. 

The fall resulted in multiple fractures and surgery to repair the damage.

Cevallos tried the case on the theory that “buildup” occurred on the 

concrete which was caused by inadequate maintenance by Speedway. 

Counsel first introduced the term at trial in examining the maintenance 

technician. Counsel explained that “buildup” was present when “pristine 

poured concrete that’s poured for the first time . . . [is] all a nice uniform 

color. And as that concrete is used for whatever purpose, be it a sidewalk, 

driveway, gas station, that concrete discolors over time and there’s a 

buildup that occurs on that concrete, whether it’s from spills, oil, tires, 

things like that.” The maintenance technician testified that the area 

around the gas pumps was a “roughly smooth” concrete which was porous 

and would absorb liquids. He testified that he was not a concrete expert, 

nor was he qualified to determine whether there was buildup on concrete.

According to the maintenance technician, Speedway did not have 

employees with the specific responsibility of inspecting floor surfaces but 

that all employees were trained to look out for hazards. When a 

maintenance tech observes a safety issue, the tech brings it up and 

discusses it at a weekly conference call with Speedway technicians and 

their supervisors. In one such call, a technician noted that he observed 

buildup around a gas pump and that techs should be on the lookout for 

it. A supervisor agreed, but no additional protocols were issued to address 

the issue.

On cross-examination, the maintenance technician agreed that the 

buildup he referred to typically involved diesel fuel and pumps, which were 

not the type of gas pumps where Cevallos fell. He testified that he was not 

aware of any ongoing gasoline spills at the subject Speedway store during 

his five years as the store’s maintenance technician, which encompassed 

the date of Cevallos’ accident.

Speedway trained its employees on cleaning, but the station manager 

did not remember specific training on concrete maintenance. She did not 

receive training specifically on how to clean up buildups, as maintenance 

technicians would be responsible for that. Speedway safety protocols 

included inspection of the pumps every two hours. Employees were 

trained to inspect the outside pump area, including the floor surfaces 

during these inspections. The Speedway operations manual specified that 

“[l]ot should be checked throughout the day for spills – i.e., oil, motor fuel, 

etc. When spills are discovered, proper clean up steps are to be followed.” 

It also required the parking lot and sidewalks to be swept daily and for 
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employees to report any large cracks or potholes. Upon opening the store, 

employees should “[i]nspect the lot; clean up any spills, debris, or litter.” 

Under “general safety guidelines” in the manual, employees were directed 

to “[c]lean up spills immediately” and to “[u]se oil dry for oil or fuel spills 

on the driveway. Immediately clean up sills, breakage or trash.” The 

manual did not include anything about “buildup” or how to inspect the 

flooring around the gas pumps.

The manager of the station and the district manager both testified that 

gasoline spills were not a frequent occurrence at the subject store. 

Similarly, the maintenance technician also testified that in the five years 

he was assigned to the store, he was not aware of any issues with ongoing 

gasoline spills. Usually, such spills were the result of customer error in 

pumping gas. The manager also testified that she was unaware of any 

buildups around the gas pumps, aside from the diesel pumps, during her 

time as manager, and those did not involve the floor surface.

The district manager testified that the area was pressure cleaned 

monthly and had been cleaned about three weeks prior to the accident. 

The purpose of the pressure cleaning was to make the area more attractive 

by removing various stains.

On the date of the incident, the station manager and two other 

employees shared all duties for the store, including checking for hazards. 

The manager explained that their duties regarding the outside included to

check the gas pumps daily, make sure all areas were clean, sweep the 

concrete and dry up any gasoline spills with sand. If gas were to leave a 

stain, they would use a multipurpose cleaner she called “Re-Crete.”

A surveillance video showed an employee inspecting the area 

approximately thirty minutes before Cevallos’ fall. The employee was 

shown walking outside with a broom and dust pan and walking from one 

side of the pumps to the other. There was no spill in front of the pump 

where Cevallos later fell. The employee’s entire inspection took about two 

minutes.

Just after Cevallos’ fall, the general manager inspected the area and 

took pictures which were admitted into evidence. The general manager

was asked to review them and testified that she did not see any stains in 

the photographs but pointed out that gasoline had been spilled in some of 

the photos. The photos consisted of pictures of the area where Cevallos 

fell. They showed a floor with multiple brown spots on it. Later, after 

reviewing the video, she admitted that the concrete floor showed stains on 

it.
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Out of turn, Speedway called an expert witness who testified that there

was no evidence of any “buildup” at the subject store. The expert testified 

that the concrete floor surface at the pump at the time of Cevallos’ accident 

was “substantially similar” to the floor surface as it existed at the time of 

his personal inspection three years later, with the exception of a “puddle 

of gasoline.” Based upon his expertise, the floor surface where Cevallos 

fell was “slip resistant” and an appropriate surface. Although he agreed 

that buildup is possible, he saw no evidence of it in this case, after 

reviewing the photos in evidence.

At the close of plaintiff’s case, Speedway moved for a directed verdict, 

contending that Cevallos failed to present any evidence that Speedway had 

actual or constructive notice of a spill or dangerous condition. The puddle 

of gasoline in which Cevallos slipped had only been present for 111 

seconds before the accident, and there was no evidence to support 

Cevallos’ allegations of actual or constructive knowledge of buildup or that 

there was any buildup at all at the time of the fall. Cevallos responded 

that she slipped on the gas because of the poorly maintained pouredconcrete that had buildup on it, as demonstrated by the photographs

taken immediately after she fell which allegedly showed a buildup. The

court granted the motion for directed verdict on all issues except 

constructive notice. After the court denied the renewed motion for directed 

verdict at the close of all the evidence, the case was submitted to the jury. 

The jury returned a verdict for Cevallos, and the court entered judgment 

on the verdict. Speedway then filed an appeal.

The standard of review of an order denying a motion for directed verdict 

is de novo. Hollywood Med. Ctr., Inc. v. Alfred, 82 So. 3d 122, 125 (Fla. 

4th DCA 2012) (citations omitted). “A trial court should grant a motion for 

directed verdict when the evidence, viewed in the light most favorable to 

the non-moving party, shows that a jury could not reasonably differ about 

the existence of a material fact and the movant is entitled to judgment as 

a matter of law.” Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So. 3d 

247, 250 (Fla. 4th DCA 2009) (citation omitted). “When an appellate court 

reviews the grant of a directed verdict, it must view the evidence and all 

inferences of fact in a light most favorable to the nonmoving party, and 

can affirm a directed verdict only where no proper view of the evidence 

could sustain a verdict in favor of the nonmoving party.” Id. (quoting Frenz 

Enters., Inc. v. Port Everglades, 746 So. 2d 498, 502 (Fla. 4th DCA 1999)).

Section 768.0755, Florida Statutes (2016), governs liability in premises 

cases involving transitory foreign substances in a business establishment, 

and provides:
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(1) 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. Constructive knowledge may be proven 

by circumstantial evidence showing that:

(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.

§ 768.0755, Fla. Stat. (2016). The statute places the burden on the 

plaintiff to prove actual or constructive knowledge by the premises owner 

of the dangerous condition.

As indicated in section 768.0755, constructive notice may be inferred 

from either: (1) the amount of time a substance has been on the floor; or 

(2) the fact that the condition occurred with such frequency that the owner 

should have known of its existence. In the latter category, “evidence of 

recurring or ongoing problems that could have resulted from operational 

negligence or negligent maintenance becomes relevant to the issue of 

foreseeability of a dangerous condition.” Owens v. Publix Supermarkets, 

Inc., 802 So. 2d 315, 320 (Fla. 2001) (citations omitted).

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 surface for 111 seconds before Cevallos fell. See Walker v. 

Winn-Dixie Stores, Inc., 160 So. 3d 909, 912 (Fla. 1st DCA 2014) (water on 

floor for four minutes prior to fall “was insufficient to satisfy the statute’s 

requirement that the alleged dangerous condition must exist ‘for such a 

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

establishment should have known of the condition’ before constructive 

knowledge of the condition can be imputed”).

Instead, Cevallos tried to establish that the condition of buildup 

occurred with regularity and was foreseeable. Of course, that theory 

requires that she prove that buildup actually occurred at the time and 

location of her fall and that it contributed to her fall. She never proved 

that foundational fact. The manager testified that she saw no buildup, 

and the expert testified that he saw no evidence of buildup when 
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considering the photos of the concrete taken on the date of the fall. None 

of the witnesses testified that buildup was a problem, other than around 

diesel pumps. In arguing against a directed verdict, Cevallos’ counsel 

relied solely on the photos of the concrete to establish the existence of 

buildup. The photos showed discoloration of the concrete, or brown spots. 

The photos did not reveal whether those spots were oil or dirt accumulated 

on the concrete surface, or, as the district manager testified, simply stains 

on the concrete. In other words, there was nothing to establish that there 

was buildup which would create a slippery condition on the concrete. The 

photos could show simple discoloration rather than buildup, as the fact 

witnesses testified.

Where photos are ambiguous, as the ones here, as to the condition and 

duration of the condition revealed, they do not support an inference of 

constructive notice. In Hannewacker v. City of Jacksonville Beach, 419 So. 

2d 308, 311–12 (Fla. 1982), the court discussed the evidentiary value of 

photographs to support constructive notice of a dangerous condition:

If the photograph portrays a condition that has some 

distinguishing feature which clearly shows that the defect has 

existed for a long period of time, it may afford the jury a basis 

to infer that a significant period of time has passed. If the 

photograph is ambiguous on this point and what is shown 

makes it questionable whether a significant period has 

passed, the jury would necessarily be required to indulge 

in speculation to determine the duration of the condition. 

In such a case the photograph without live testimony is 

insufficient. This is no different than if a witness testifies to 

the condition of a defect at the time of an accident and there 

are no distinguishing features or other testimony to indicate 

its duration. In such instance the trial judge is entitled to 

direct a verdict on the question of constructive notice.

Id. (footnote omitted) (emphasis added). In this case, what was shown in 

the photograph not only required speculation as to how long the condition 

existed, but it also required speculation on the part of the jury as to the 

very existence of the condition of buildup itself.

Even if the photographs did show buildup, Cevallos’ theory of the case 

needed the jury to infer that Speedway failed to adequately train its 

employees on concrete maintenance and to maintain policies to protect its 

outdoor premises from “buildup.” Based on this inference, it sought the 

jury to infer that Speedway allowed such buildup to occur, and that 
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buildup did occur, which resulted in Cevallos fall. Thus, she sought to 

build an inference upon an inference.

In negligence cases involving circumstantial evidence, “a fact may be 

established by circumstantial evidence as effectively and as conclusively 

as it may be proved by direct positive evidence.” Stanley v. Marceaux, 991 

So. 2d 938, 940 (Fla. 4th DCA 2008) (quoting Nielsen v. City of Sarasota, 

117 So. 2d 731, 733 (Fla. 1960)). However, this rule is subject to the 

following limitation: “if a party to a civil action depends upon the inferences 

to be drawn from circumstantial evidence as proof of one fact, it cannot 

construct a further inference upon the initial inference in order to 

establish a further fact unless it can be found that the original, basic 

inference was established to the exclusion of all other reasonable 

inferences.” Id. (quoting Nielsen, 117 So. 2d at 733).

“Where an inference is based upon circumstantial evidence in a civil 

case, it must be the only reasonable inference that can be formed from 

that evidence for the plaintiff to build further inferences upon it.” Broward 

Exec. Builders, Inc. v. Zota, 192 So. 3d 534, 537 (Fla. 4th DCA 2016) 

(citation omitted). “The rule that an inference may not be stacked on 

another inference is designed to protect litigants from verdicts based upon 

conjecture and speculation.” Stanley, 991 So. 2d at 940.

An example of this rule in action is found in Tallahassee Medical Center, 

Inc. v. Kemp, 324 So. 3d 14 (Fla. 1st DCA 2021), reh’g denied (Aug. 24, 

2021). There, a hospital visitor sued a medical center for serious injuries 

she sustained in a slip and fall that occurred while she was walking past 

the nurses’ station. Plaintiff alleged the center’s negligence caused her 

injury because the floor was wet. Evidence established that no one saw a 

wet substance that plaintiff blamed for her fall. Plaintiff relied on the way 

she fell and the fact that her clothes were wet after the fall to establish 

that a liquid substance was on the floor. Id. at 15–16.

In reversing the denial of a directed verdict, the First District noted that 

the jury would have had to rely on improperly stacked inferences to find 

the medical center negligent. The court explained:

This is not an instance where the main inference 

underlying the plaintiff’s case—that plaintiff slipped on an 

employee-caused wet spot—can be established to the 

exclusion of other reasonable inferences. Indeed, it is just as 

plausible and reasonable to infer that no liquid was on the 

floor and that the wetness [plaintiff] perceived came from her 

own flip-flops and clothes after walking into the hospital out 
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of a rainstorm. Nor can additional inferences, that are 

questionable in their own right, be rightfully stacked here; 

speculations such as: that the bags, trays, and cart shown 

on the video contained liquids; that liquids leaked, spilled, or 

seeped onto the floor from one of these items due to employee 

negligence; and that hospital employees failed to wipe up the 

liquid on the floor in the busy hallway before [plaintiff] slipped, 

even though they were trained to look for and immediately 

wipe up liquids found on the floor. In fact, there is no evidence 

here that the bags, carts, and trays from the video carried any 

liquids. Nor is there evidence, even if the bags had carried wet 

stuff, that they leaked, seeped through, or otherwise deposited 

wet stuff on the floor. Nor does the evidence show that any of 

the carts or trays were mishandled and spilled liquids onto 

the floor. In fact, no substance was seen on the floor before 

[plaintiff’s] fall.

Id. at 17.

Similarly, in this case, Cevallos invited the jury to infer that Speedway 

deliberately refrained from implementing a single policy regarding 

maintenance of the concrete at the fuel pumps and guidance to its store 

manager, and then asked the jury to stack upon that inference, the further 

inference that the lack of a policy resulted in unreasonably slippery 

concrete due to “buildup.”

Although the evidence indicates that Speedway had no express policy 

or training specific to “concrete” or “buildups,” the evidence indicated that 

it had training and policies for maintenance of the outside in general. The 

evidence showed that Speedway had training, operation manuals, and 

safety checklists. It also established that the concrete had been pressure 

cleaned seventeen days before the accident. Thus, although one could 

infer that Speedway refrained from properly training or maintaining its lot, 

one could also infer that Speedway’s training and policies demonstrated 

an adequate operation of its maintenance responsibilities.

Whether the initial inference is that Cevallos slipped on buildup or 

whether Speedway did not have training policies for cleaning buildup off 

the concrete, neither was established to the exclusion of all other 

reasonable inferences. The jury was left to speculate as to the existence 

of the condition and Speedway’s constructive knowledge. Because of this, 

the court erred in denying the motion for directed verdict.
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Section 768.0755 requires the plaintiff to prove the premises owner’s 

constructive knowledge of a dangerous condition which causes a slip and 

fall on a transitory substance. Cevallos’ failure to prove the elements of 

the statute require reversal of the final judgment and entry of judgment 

for Speedway.

Reversed and remanded for vacation of final judgment and entry of new 

final judgment.

GERBER and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.