New Third Circuit Court of Appeal Opinion Reinforces the Precedent that Jurors may not “Stack Inferences” in Determining Notice for Slip and Fall Cases.

Publix Super Markets, Inc. v. Jessie Bellaiche, No. 3d1601983 , 2018 WL 1513348, at *1 (Fla. 3d DCA 2018).
This recent opinion from the Third District Court of Appeal emphasizes the notice requirement in slip and fall cases with transitory substances. Under Fla. Stat. § 768.0755, plaintiffs must prove that the defendant had actual or constructive knowledge of the transient substance that resulted in the fall. Encarnacion v. Lifemark of Hosps. of Fla., 211 So. 3d 275 (Fla. 3d DCA 2017). It is not sufficient for the jury to assume notice by stacking inferences based on merely circumstantial evidence.

In Bellaiche, plaintiff slipped and fell in an aisle on some water that she did not see on the floor. She testified at trial that after falling, she saw a “Publix employee with a mop in his hand.” There was no evidence that the mop was wet, that the mop had been used in that aisle or that the mop was used anywhere else in the store. The store manager testified that Publix uses dry rayon mops to clean the floors, which would not create puddles of water. Video surveillance did not corroborate plaintiff’s testimony and showed that the only janitor in the store at that time was using a broom and dustpan. The jury awarded Plaintiff 1.5 million dollars in damages.

Publix appealed and argued that the trial court erred in denying its motion for directed verdict because there was not sufficient evidence that Publix had actual knowledge of the condition or that its employees caused the condition that resulted in the fall. The Third District Court of Appeal agreed. The Court found that the testimony that Plaintiff saw “a man standing with a mop” was insufficient to prove actual notice or causation. Based on the evidence presented at trial, a reasonable jury could only arrive at a verdict by stacking inferences based on circumstantial evidence, which is not permitted. Further, the mere possibility of causation is insufficient for the Plaintiff to establish liability. The Court held that when a jury can only find that a party is negligent by stacking inferences, then a directed verdict is warranted. see also Sanders v. ERP Operating Ltd. P’ship, 157 So.3d 273, 277 (Fla. 2015).

This case provides an excellent reminder regarding Plaintiff’s burden to prove notice and the general principal that a jury cannot stack inferences to determine notice of a dangerous condition.