IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

WANDA WELCH,

Appellant,

v. Case No. 5D22-357

LT Case No. 05-2019-CA-010929-X

CHLN, INC.,

Appellee.

________________________________/

Opinion filed March 17, 2023

Appeal from the Circuit Court 

for Brevard County,

Charles M. Holcomb, Judge.

Brian J. Lee, of Morgan & Morgan, 

Jacksonville, for Appellant.

Robert A. Ader and Elizabeth B. Hitt, 

of Ader & Hitt, P.A., Miami, for 

Appellee.

JAY, J.

In this slip and fall case, Appellant challenges the trial court’s entry of 

summary judgment in favor of Appellee (“CHLN”). Because there is a genuine 
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dispute of material fact as to whether CHLN had constructive knowledge of 

the substance that allegedly caused Appellant’s injury, we reverse the entry 

of summary judgment and remand for further proceedings.

I.

On December 23, 2017, Appellant was a dinner customer at CHLN’s 

restaurant in Melbourne. She alleged that while there, she slipped and fell 

after stepping in a puddle near the salad bar. In her deposition, Appellant 

testified that she stepped in “quite a bit” of liquid that appeared to be “dirty” 

and “murky.” She indicated that this “large amount of liquid” had a “slimy”

consistency. She observed footprints in the puddle that were going in different 

directions. On multiple occasions, she expressed certainty that the footprints 

were not hers.

In his deposition, the restaurant’s general manager testified that on a 

“busy night” like the night of Appellant’s accident, the restaurant would have

had “at least two” employees assigned to the salad bar. One of those workers 

would have been stationed behind the salad bar “at all times.” Among their 

other duties, the salad bar employees were there to keep the floor clean.

CHLN moved for summary judgment, arguing that Appellant could not 

show that CHLN knew about the liquid on the floor. The trial court granted the 

motion, finding there was “no evidence” of CHLN’s actual knowledge and 
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“insufficient evidence” of CHLN’s constructive knowledge. This appeal 

followed.

II.

We review the trial court’s order de novo. See Volusia Cnty. v. 

Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). To 

prevail on a motion for summary judgment, a movant must show that (1) 

“there is no genuine dispute as to any material fact” and (2) “the movant is 

entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(a). The court 

views the evidence in a light most favorable to the non-moving party, and a

genuine dispute occurs when the evidence would allow a reasonable jury to 

return a verdict for that party. Baum v. Becker & Poliakoff, P.A., 351 So. 3d 

185, 189 (Fla. 5th DCA 2022); Ibarra v. Ross Dress for Less, Inc., 350 So. 

3d 465, 467 (Fla. 3d DCA 2022).

Negligence claims have four elements: duty, breach, causation, and 

damages. Peoples Gas Sys. v. Posen Constr., Inc., 322 So. 3d 604, 612 n.8 

(Fla. 2021). In actions arising from a plaintiff’s slip and fall on a transitory 

substance in a business establishment, proof of the breach element is 

“statutorily constrained” by section 768.0755, Florida Statutes. Encarnacion 

v. Lifemark Hosps. of Fla., 211 So. 3d 275, 278 (Fla. 3d DCA 2017). That 

statute 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(1), Fla. Stat. (2017).

Here, Appellant does not allege that CHLN had actual knowledge of 

the wet floor by the salad bar. She also does not allege that the wet floor 

occurred with regularity. Instead, her constructive knowledge argument is 

that the wet floor existed for such a length of time that CHLN should have 

known about it. See § 768.0755(1)(a), Fla. Stat.

“In trying to assess how long a substance has been sitting on a floor, 

courts look to several factors, including ‘evidence of footprints, prior track 

marks, changes in consistency, [or] drying of the liquid.’” Torres v. Wal-Mart 

Stores E., L.P., 555 F. Supp. 3d 1276, 1283 (S.D. Fla. 2021) (quoting 

Palavicini v. Wal-Mart Stores E., L.P., 787 F.App’x 1007, 1012 (11th Cir. 

2019)). They also consider if the “offending liquid” was “dirty” or “scuffed.” Id.
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(quoting Norman v. DCI Biologicals Dunedin, LLC, 301 So. 3d 425, 429 (Fla. 

2d DCA 2020)).

Here, Appellant testified that she stepped in a large amount of liquid 

that was dirty, murky, and slimy. Because some substances have these 

features even before being spilled, courts have often held that this kind of 

evidence is not enough—by itself—to create a jury question on constructive 

knowledge. See Encarnacion, 211 So. 3d at 278 (holding that “[f]or such 

testimony to create a jury issue,” it “must be accompanied by a ‘plus,’ namely 

some additional fact or facts from which a jury can reasonably conclude that 

the substance was on the floor long enough to have become discolored 

without assuming other facts,” such as the liquid not being dirty or oily in its 

original condition); see, e.g., Palavicini, 787 F.App’x at 1012 (affirming 

summary judgment in a case where although the plaintiff testified that the 

liquid was dirty, there were no footprints, prior track marks, or other evidence 

tending to show that the liquid was on the floor long enough for constructive 

knowledge to attach). However, Appellant testified that she observed 

footprints in the puddle—not belonging to her—that were “[g]oing [in]

different directions.” When combined with her testimony about the quantity, 

appearance, and consistency of the liquid, this evidence raises a fact 

question about CHLN’s constructive knowledge.
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Indeed, footprints are a common feature of analogous slip and fall 

cases that survive summary judgment because they allow a jury to find that 

the substance was on the ground long enough for the defendant to discover 

it before the plaintiff’s fall. See, e.g., Thompson v. Wal-Mart Stores E., L.P., 

No. 20-61907, 2022 WL 59678 (S.D. Fla. Jan. 6, 2022) (describing footprints 

as one of the telltale indicators of a liquid’s age, and denying summary 

judgment in a case where the puddle covered a substantial area, and the 

plaintiff saw a footprint and track marks on the spot where she slipped); Britt 

v. Wal-Mart Stores E., L.P., No. 20-81244, 2021 WL 2580553 (S.D. Fla. Apr. 

28, 2021) (denying summary judgment as to constructive knowledge in a 

case where a larger than basketball-sized puddle was dirty with footprints);

Norman, 301 So. 3d 425 (reversing summary judgment in a case where the 

plaintiff fell in a cup’s worth of dirty water, and the puddle contained at least 

two muddy footprints).

Like the plaintiffs’ testimony in those cases, a “reasonable jury could 

credit [Appellant’s] testimony and infer that the tracked footprints” she 

observed in the large amount of dirty liquid “indicated that the liquid 

substance was there long enough for several individuals, perhaps more than 

two, to walk through it such that [CHLN] should have detected it.” See Britt, 

2021 WL 2580553 at *3. This conclusion is reinforced by the presence of at 
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least one CHLN employee stationed at the salad bar “at all times.” See

Torres, 555 F. Supp. 3d at 1283 (“Beyond the length of time, courts are more 

likely to find that a business had constructive notice when the business’s 

employees were ‘in the vicinity of where the fall occurred.’” (quoting Plott v. 

NCL Am., LLC, 786 F.App’x 199, 203 (11th Cir. 2019))); see also Lebron v. 

Royal Caribbean Cruises Ltd., 818 F.App’x 918, 922 (11th Cir. 2020) 

(reversing a directed defense verdict in a case where an employee was 

“specifically tasked” with watching the skating rink where the plaintiff’s 

accident occurred, reasoning that this evidence provided “the final inference 

for constructive notice”); Castellanos v. Target Corp., 568 F.App’x 886 (11th 

Cir. 2014) (affirming the denial of a defendant’s motion for directed verdict in 

a case where a two-foot puddle containing tracks not made by the plaintiff 

was located “within about ten feet” of the defendant’s employees).

III.

A reversal of summary judgment is not a finding for the plaintiff, but 

merely a recognition that the evidence is such that a reasonable jury could

find for the plaintiff. See Ibarra, 350 So. 3d at 467; see, e.g., Thompson, 2022 

WL 59678 at *5 (holding that by drawing all reasonable inferences in the 

plaintiff’s favor, a jury could find that the defendant should have known about 

the puddle where the plaintiff slipped). Here, Appellant’s testimony about the
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large amount of dirty liquid and the footprints therein—along with the general 

manager’s testimony about the presence of the salad bar employees—is 

enough to raise a genuine dispute of material fact as to CHLN’s constructive 

knowledge. See Winn-Dixie Stores, Inc. v. Guenther, 395 So. 2d 244, 246 

(Fla. 3d DCA 1981) (“[T]estimony that the liquid was dirty and scuffed and 

had several tracks running through it was . . . adequate to impute 

constructive notice of the hazardous condition to the store manager. 

Furthermore, evidence that the manager could have seen the spilled 

substance from his vantage point within the store bolsters our conclusion.”).

Accordingly, we reverse the order granting summary judgment and remand 

the matter to the trial court for further proceedings.

REVERSED AND REMANDED.

BOATWRIGHT and MACIVER, JJ., concur.