Opinion
Case No.: 5:22cv20-MW/MJF
2023-07-05
Franklin PATRICK, Jr., Plaintiff, v. FORSTER AND HOWELL, INC., Defendant.
Nicole Elizabeth Blais, Demand the Limits, Boca Raton, FL, William Warren Gwaltney, Florida Department of Environmental Protection General Counsel's Office, Tallahassee, FL, for Plaintiff. Charles Camryn Pape, Douglas Grayson Miller, Cole Scott & Kissane PA, Pensacola, FL, for Defendant.
Nicole Elizabeth Blais, Demand the Limits, Boca Raton, FL, William Warren Gwaltney, Florida Department of Environmental Protection General Counsel's Office, Tallahassee, FL, for Plaintiff. Charles Camryn Pape, Douglas Grayson Miller, Cole Scott & Kissane PA, Pensacola, FL, for Defendant. ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR ADVERSE INFERENCE JURY INSTRUCTIONS Mark E. Walker, Chief United States District Judge
This Court has considered, without hearing, Defendant's renewed motion for summary judgment, ECF No. 53, Plaintiff's response, ECF No. 58, and Defendant's reply, ECF No. 61. This Court has also considered Plaintiff's related motion for adverse inference jury instructions, ECF No. 59, and Defendant's response, ECF No. 64. For the reasons provided below, Defendant's renewed motion for summary judgement, ECF No. 53, is GRANTED, and Plaintiff's motion for adverse inference jury instructions, ECF No. 59, is DENIED.
I
This is a slip-and-fall case. Plaintiff asserts that he was injured after slipping on a transitory substance located on the floor of Defendant's grocery store. ECF No. 53 at 2; ECF No. 58 at 1. Plaintiff brings one count of negligence, based on a premises liability theory, and seeks damages for the injuries he sustained after slipping at Defendant's grocery store.
Plaintiff originally also brought a second count, alleging negligence under the non-delegable duty doctrine. ECF No. 3-1 at 5-8. This Court dismissed Plaintiff's second count in its order granting in part Defendant's motion to dismiss or strike. ECF No. 24 at 6.
Defendant has moved for summary judgment. Defendant argues that Plaintiff cannot show that Defendant had actual or constructive knowledge of the transitory substance on which Plaintiff slipped. In response, Plaintiff acknowledges that he lacks evidence to support his claims, absent an adverse jury instruction against Defendant. ECF No. 58 at 10. Plaintiff has also, however, filed a separate motion for an adverse jury instruction, ECF No. 59, where he alleges that Defendant lost or destroyed video surveillance footage that could have aided Plaintiff in proving that Defendant had knowledge of the transitory substance Plaintiff slipped on. Because the success of Plaintiff's adverse jury instruction motion bears on the success of Defendant's summary judgment motion, this Court begins with the former.
II
Plaintiff argues that he is entitled to adverse inference jury instructions because Defendant spoliated surveillance footage that could have aided his case. Plaintiff cites exclusively to Florida law and Florida cases in making his argument. However, federal law governs the imposition of spoliation sanctions in federal court. Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005) ("We agree . . . that federal law governs the imposition of spoliation sanctions. Furthermore, in accordance with the fourth and fifth circuits, we conclude that federal law applies because spoliation sanctions constitute an evidentiary matter."). Federal law requires the party moving for spoilation sanctions to show that "the absence of [the evidence at issue] is predicated on bad faith." Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997) (citing Vick v. Texas Employment Comm'n, 514 F.2d 734, 737 (5th Cir. 1975)); Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1310 (11th Cir. 2009) (holding that a "district court did not err in declining to draw an adverse inference against the defendants" where the moving party presented "no evidence that any party acted in bad faith regarding any of the instances").
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
Here, Plaintiff does not allege that Defendant acted in bad faith in either losing or destroying the relevant video surveillance footage. Nor does Plaintiff point to any evidence suggesting that Defendant may have acted in bad faith. Indeed, Plaintiff does not even allege how Defendant might have lost or destroyed the relevant video surveillance footage. Plaintiff maybe able to show that Defendant was negligent in losing or destroying the relevant video surveillance footage, but "mere negligence" is not enough to support Plaintiff's spoliation argument. Vick, 514 F.2d at 737 ("The adverse inference to be drawn from destruction of records is predicated on bad conduct of the defendant. Moreover, the circumstances of the act must manifest bad faith. Mere negligence is not enough . . . .") (internal citations omitted).
Absent direct evidence of bad faith, Plaintiff could also argue that Defendant engaged in an affirmative act that caused the loss of evidence and which necessarily shows bad faith. Calixto v. Watson Bowman Acme Corp., 2009 WL 3823390, at *16 (S.D. Fla. Nov. 16, 2009). Plaintiff, however, makes no such claims and offers no evidence that would allow this Court to find that Defendant acted in bad faith.
Accordingly, Plaintiff's motion for adverse inference jury instruction, ECF No. 59, is DENIED.
III
Now to Defendant's arguments on summary judgment. This Court begins with the applicable standard. Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A "genuine" dispute exists "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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Facts are "material" with respect to the substantive law if they form disputes that are not "irrelevant or unnecessary" and have the potential to "affect the outcome of the suit." Id. A moving party is entitled to summary judgment when the nonmoving party fails to prove an essential element of its case, an element for which the nonmoving party has the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This Court accepts the facts in the light most favorable to the nonmovant. See Galvez v. Bruce, 552 F.3d 1238, 1239 (11th Cir. 2008). All reasonable doubts about the facts are resolved in the nonmovant's favor. Id. at 1241.
Under Florida law, to recover under a claim for premises liability related to injuries sustained from slipping on a transitory substance, a plaintiff must show that the defendant "had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it."; Fla. Stat. § 768.0755(1) (2022). A plaintiff may prove constructive knowledge of the transitory substance if he can show 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) that the "condition occurred with regularity and was therefore foreseeable." Id. § 768.0755(1)(a)-(b). Even when the plaintiff is the nonmovant on summary judgment, the plaintiff bears the burden to show that the defendant had actual or constructive knowledge of the transitory substance. Delgado v. Laundromax, Inc., 65 So. 3d 1087, 1090 (Fla. 3d DCA 2011).
In support of its motion for summary judgment, Defendant argues that there is no evidence in the record to support Plaintiff's claim that Defendant had actual or constructive knowledge of the transitory substance Plaintiff slipped on. ECF No. 53 at 14 (citing Delgado, 65 So. 3d at 90); see Delgado, 65 So. 3d at 1090 (holding that the "mere presence of [the transitory substance] on the floor is not enough to establish [knowledge of the substance]" and that "the record must contain additional facts in support of liability, to create a permissible inference upon which [the plaintiff] could rely in defense against [the defendant's] motion for summary judgment"). Furthermore, Defendant has come forward with evidence tending to support a lack of actual or constructive knowledge. See ECF No. 54-6 (Defendant's Aisle Maintenance Checklist and Floor Sweep Log, indicating that Defendant regularly checks the aisles of its grocery store and did so twenty-five minutes before Plaintiff's slip and fall); ECF No. 54-3 at 19, 24 (deposition of Defendant's head cashier; stating that store aisles are inspected every hour, that Defendant's employees are "very, very thorough about [the] aisle checks," and that she did not know where the transitory substance came from); ECF No. 54-1 at 37 (Plaintiff's deposition, where he stated that he believes that the transitory substance was not on the floor for a long time).
Plaintiff concedes that he is unable to prove his case—specifically, that Defendant had actual or constructive notice of the transitory substance—without the adverse inference jury instruction. ECF No. 58 at 2, 10. Additionally, Plaintiff concedes that he does not have evidence to rebut Defendant's showing that regular inspections were performed on Defendant's grocery store aisles. Id. at 10. Plaintiff also concedes that he cannot show how the transitory substance came to be on the floor or how long it was on the floor. Id.
Because Plaintiff can point to no evidence in the record that would support an inference that Defendant had actual or constructive knowledge of the transitory substance he slipped on, and because this Court denied Plaintiff's motion for an adverse inference jury instruction, there exists no evidence in the record that would create a genuine dispute of material fact regarding Defendant's actual or constructive notice of the transitory substance and thus there is no triable issue for the jury. Accordingly, Defendant is entitled to summary judgment on the remaining count. See Vallot v. Logan's Roadhouse, Inc., 567 F. App'x 723, 726 (11th Cir. 2014) ("There is no evidence of how long the slippery substance was on the floor or to suggest that [the defendant] caused or had notice of the spill . . . . Because it is undisputed that [the defendant] had neither actual nor constructive notice, [the plaintiff] is unable to prevail as a matter of law on his negligence action.") (internal citations omitted).
Accordingly,
IT IS ORDERED:
1. Plaintiff's motion for adverse inference jury instructions, ECF No. 59, is DENIED.
2. Defendant's motion for summary judgment, ECF No. 53, is GRANTED.
3. The Clerk shall enter judgment stating, "Plaintiff's claims against Defendant are DISMISSED with prejudice."
4. The Clerk shall also close the file.
SO ORDERED on July 5, 2023.