Wendy Donnelly v. Wal-Mart Stores East, LP

W
         USCA11 Case: 20-11070      Date Filed: 02/03/2021   Page: 1 of 15



                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 20-11070
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 2:19-cv-14112-RLR



WENDY DONNELLY,

                                                                Plaintiff-Appellant,

                                      versus

WAL-MART STORES EAST, LP,

                                                               Defendant-Appellee.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                (February 3, 2021)

Before BRANCH, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM:

      A customer at a Florida Wal-Mart store spilled clear liquid on the store’s

floor. Just over one minute later, another customer, Wendy Donnelly, slipped on
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the puddle, fell, and was injured. Donnelly then sued Wal-Mart for negligence,

alleging that Wal-Mart failed to exercise reasonable care in maintaining its

premises. The district court granted summary judgment to Wal-Mart because

Donnelly failed to point to any facts that could lead a reasonable jury to conclude

that Wal-Mart had actual or constructive knowledge of the spill. Because we agree

that Wal-Mart did not have the requisite knowledge of the spill required under

Florida law, we affirm the district court’s decision.

                             I.     Background

      Donnelly’s fall and the surrounding events were captured on the store’s

security camera. The surveillance video shows a customer with a container inside

her shopping cart, potentially a water bottle, pushing the cart down an aisle. The

customer then quickly turns her cart into the chip and bottled water aisle, and the

container tips over. The customer continues pushing her cart down the aisle and

parks her cart near the far end of the chip and bottled water aisle. After

approximately three minutes, the customer appears to notice liquid accumulating

under her parked shopping cart and hunches over the spill. While the customer’s

cart is parked over the accumulating liquid, the video shows a presumed Wal-Mart

employee walking past the chip and bottled water aisle at the opposite end of the




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aisle from the customer and the spill. 1 After hunching over the spill, the customer

leaves the chip and bottled water aisle.

         One minute and seven seconds later, Donnelly enters the chip and bottled

water aisle, slips on the spill, and falls. Donnelly testified that she did not see the

clear liquid on the floor before she slipped. She said “it wasn’t large enough to

see,” and she had issues seeing it on the floor even after she slipped. Donnelly

testified that after her fall she saw an employee wipe up a “clear substance” from

the floor. She testified that there were no cart marks or footprints in the liquid, and

the paper towel used to clean up the spill after her fall was wet but not dirty.

Donnelly did not know of anyone else aware of the substance on the floor before

the incident. The store’s assistant manager, Jason Skovran, testified that he

remembers seeing on the surveillance video that a Wal-Mart employee, while

cleaning up the spill, had taken a paper towel with her foot and dragged it up the

aisle, so he assumed, but did not know personally, that the spill extended up the

aisle.

         Donnelly sued Wal-Mart in a Florida state court for negligence, alleging that

Wal-Mart violated the duty it owed Donnelly to use reasonable care in maintaining

its premises. Donnelly asserted that she was injured “when she slipped and fell



         1
         This employee was never identified, and the record does not reflect if the employee
was on duty.

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due to a foreign slippery substance on the floor inside the Defendant’s store.”

Donnelly claimed that Wal-Mart had actual or constructive knowledge of the

dangerous condition. Wal-Mart filed its answer and removed the case to federal

court. The district court set the deadline to amend pleadings for June 15, 2019.

      During discovery, Donnelly retained an engineering expert that performed

slip resistance testing on Wal-Mart’s vinyl tile floor and opined that it did not meet

acceptable standards for slip resistance safety when wet. Wal-Mart retained its

own expert that opined that the floor was not unreasonably dangerous when wet.

      On August 27, 2019, seventy-four days after the pleading amendment

deadline, Donnelly moved for leave to amend her complaint to add that Wal-Mart

was also negligent by “failing to install, maintain, and provide safe flooring

surfaces on its premises” and that Wal-Mart “ha[d] actual or constructive notice

that its flooring becomes slippery, and therefore unreasonably dangerous, when

wet.” Wal-Mart opposed Donnelly’s motion for leave to amend, arguing the

amendments were futile because the claim Donnelly sought to add was not

supported by Florida law, circumvented the knowledge requirement set out in Fla.

Stat. § 768.0755,2 and improperly sought to make Wal-Mart strictly liable for



      2
          In full, Fla. Stat. Ann. § 768.0755 provides:
      (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
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customers’ injuries. Donnelly responded that Fla. Stat. § 768.0755 specifically

preserved a right to sue for common law negligence, and her amended claim was

not futile because Wal-Mart “breach[ed] . . . its common law duty in failing to use

reasonable care in maintaining the premises in a reasonably safe condition—by

failing to install, maintain, and provide safe flooring.” The district court denied

Donnelly’s motion in a paperless order, noting that “[t]he amended pleadings

deadline passed on June 15, 2019.”

      Wal-Mart moved for summary judgment, arguing that Donnelly could not

meet her burden to show that Wal-Mart had actual or constructive knowledge of

the spill. The district court granted Wal-Mart’s motion after carefully viewing the

video evidence. It found that Donnelly’s negligence claim failed because Wal-

Mart did not have the required actual or constructive knowledge of the spill before

Donnelly slipped and fell. Donnelly appealed.




      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.
      (2) This section does not affect any common-law duty of care owed by a person
      or entity in possession or control of a business premises.

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                                   II.    Discussion

       Donnelly asserts two main arguments on appeal.3 First, she argues the

district court erred in finding that Wal-Mart did not have actual or constructive

knowledge of the spill. Second, she argues that the district court erred in denying

her motion for leave to amend her complaint to assert a separate negligence claim

based on a theory of unsafe flooring. We address each argument in turn.

       A.      Premises Liability Under Fla. Stat. § 768.0755

       We review the district court’s grant of summary judgment to Wal-Mart de

novo, viewing all the evidence and drawing all reasonable factual inferences in

favor of Donnelly, the nonmoving party. Campbell v. Johnson, 

586 F.3d 835

, 840

(11th Cir. 2009). Summary judgment is appropriate “if 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).



       3
           Donnelly also argues that Wal-Mart had constructive knowledge of the dangerous
condition because prior slip and falls in the store for the preceding three years demonstrated that
the condition occurred with regularity and was therefore foreseeable under Fla. Stat.
§ 768.0755(1)(b). We agree with Wal-Mart that Donnelly waived this argument by failing to
present it in the district court. While Donnelly mentioned the prior slip and falls in her response
to Wal-Mart’s motion for summary judgment, she did so only in the context of her contention
that Wal-Mart was negligent with regard to its flooring. Donnelly never advanced the argument
she now makes—that the prior slip and fall instances demonstrated Wal-Mart’s constructive
knowledge of the spill because spills occurred with regularity and were therefore foreseeable
under Fla. Stat. § 768.0755(1)(b). Because Donnelly raises this issue for the first time on appeal,
we conclude that she has forfeited this argument, and we will not address it. See Access Now,
Inc. v. Sw. Airlines Co., 

385 F.3d 1324

, 1335 (11th Cir. 2004) (“We will not address a claim that
has been abandoned on appeal or one that is being raised for the first time on appeal, without any
special conditions.”).
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       To prove a negligence claim, Florida law requires plaintiffs to show “(1) a

duty by defendant to conform to a certain standard of conduct; (2) a breach by

defendant of that duty; (3) a causal connection between the breach and injury to

plaintiff; and (4) loss or damage to plaintiff.” 4 Encarnacion v. Lifemark Hosps. of

Fla., 

211 So. 3d 275

, 277–78 (Fla. 3d Dist. Ct. App. 2017) (quotation omitted). It

is undisputed that Donnelly was a business invitee in Wal-Mart’s store, so it owed

her “a duty to exercise reasonable care to maintain [its] premises in a safe

condition.” Id.. But Wal-Mart “is not an insurer of the safety” of its customers,

and it is not “strictly liable . . . for injuries resulting to invitees from dangerous

conditions on [its] premises.” Winn–Dixie Stores, Inc. v. Marcotte, 

553 So. 2d 213

, 214 (Fla. 5th Dist. Ct. App. 1989).

       Where a business invitee slips and falls on a “transitory foreign substance,”

proof of the breach element of the plaintiff’s negligence claim is “statutorily

constrained” by Fla. Stat. 768.0755. 

Encarnacion, 211 So. 3d at 278

. The statute

requires the plaintiff to “prove that the business establishment had actual or

constructive knowledge of the dangerous condition and should have taken action to

remedy it.” Fla. Stat. § 768.0755(1). Actual knowledge of a dangerous condition

exists when a business establishment’s employees or agents knew of or created the


       4
          Because we are sitting in diversity and Donnelly’s negligence claim arises under
Florida law, we apply Florida’s substantive law. Pendergast v. Sprint Nextel Corp., 

592 F.3d 1119

, 1132–33 (11th Cir. 2010).

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          USCA11 Case: 20-11070       Date Filed: 02/03/2021    Page: 8 of 15



dangerous condition. Barbour v. Brinker Fla., Inc., 

801 So. 2d 953

, 957 (Fla. 5th

Dist. Ct. App. 2001). Constructive knowledge of a dangerous condition “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.” Fla. Stat. § 768.0755(1).

       Donnelly argues that Wal-Mart had both actual and constructive knowledge

of the spilled liquid in this case.

          i.     Actual Knowledge

       Donnelly first argues that Wal-Mart had actual knowledge of the spilled

liquid because the surveillance video showed an employee walk past the aisle

where the spill was before she fell. Donnelly contends that the district court

impermissibly viewed the facts in Wal-Mart’s favor in finding that the Wal-Mart

employee shown in the video could not have seen the puddle Donnelly slipped on,

and by rejecting her argument that the employee could have seen a “trail” of water

starting on the side of the aisle the employee walked past, even if he could not see

the puddle of water Donnelly slipped on.

       The district court carefully reviewed the video of the incident and found that

the video is not evidence a reasonable juror could rely on to find that Wal-Mart had

actual knowledge of the spill for six reasons. The court explained:


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      First, . . . [t]he alleged employee moves from right to left at an
      extremely high rate of speed and, in less than the blink of an eye, the
      employee’s view of the spill is blocked by two shoppers with
      shopping carts. Second, because the employee is moving quickly
      while pulling a heavy cart, the Court is unable to reasonably infer that
      the employee’s vision was directed towards the spill in lieu of the
      direction of his travel. Third, the site of the spill was extremely far
      from the employee’s perpendicular path. Fourth, the site of the spill
      was obscured, at this time, by the body and cart of the shopper who
      spilled the liquid. Fifth, the shopper who spilled the liquid took
      several minutes to actually see the spill even though she was in close
      proximity to it. Sixth, it is undisputed that the dangerous substance
      was “a watery liquid” and it looked like “water,” thus, it would have
      been difficult to see even if the employee in the video was not moving
      at a high rate of speed at a great distance.

      The district court also rejected Donnelly’s argument that the passing

employee had actual knowledge of the dangerous condition because he could have

seen a trail of liquid which allegedly started near the end of the chip and bottled

water aisle the employee walked past. The district court pointed out that Donnelly

slipped on the puddle of accumulated liquid at the opposite end of the aisle, not on

the trail of liquid. Even if we considered the trail of liquid as part of the dangerous

condition that injured Donnelly, the video shows customers with their loaded

shopping carts parked at the very location the supposed trail would have started as

the employee walks by, blocking his view.

      Ultimately, we agree with the district court that Donnelly’s argument that

the alleged employee saw the spill Donnelly slipped on or a trail of water leading

to that spill is pure speculation, which is not enough to survive a summary


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judgment motion. “Conclusory allegations and speculation are insufficient to

create a genuine issue of material fact.” Glasscox v. City of Argo, 

903 F.3d 1207

,

1213 (11th Cir. 2018); see also Cordoba v. Dillard’s, Inc., 

419 F.3d 1169

, 1181

(11th Cir. 2005) (“Speculation does not create a genuine issue of fact; instead it

creates a false issue, the demolition of which is a primary goal of summary

judgment.” (quotation omitted)). “[A]n inference is not reasonable if it is ‘only a

guess or a possibility,’ for such an inference is not based on the evidence but is

pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 

692 F.2d 1321

, 1322 (11th Cir.1982) (quotation omitted).

      Donnelly points to no other evidence that any Wal-Mart employee saw the

liquid on the floor before her fall. In fact, Donnelly herself, who had a much better

vantage point and opportunity to see the spill than any Wal-Mart employee, did not

see the puddle until after she fell and even then with difficulty. Further, the Wal-

Mart employee seen in the video was not identified in this case, and as the district

court pointed out it is unclear whether the employee was even on duty during the

incident. There is no evidence of what that employee saw during that time except

for the video evidence. And even viewing the video in Donnelly’s favor, we

conclude that a reasonable jury could not find, based on the record evidence, that

Wal-Mart had actual knowledge of the spilled liquid.




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            ii.   Constructive Knowledge

       Donnelly next argues that Wal-Mart had constructive knowledge of the

dangerous condition because the same video evidence discussed above shows a

Wal-Mart employee in the vicinity of the incident.

       Donnelly cites a series of non-binding slip and fall cases, applying different

substantive laws, for the proposition that evidence of an employee in the vicinity of

a dangerous condition is sufficient evidence of constructive knowledge to survive

summary judgment. We do not find Donnelly’s argument persuasive for two

reasons. First, Donnelly does not explain how her “employee in the vicinity”

argument satisfies her burden under Fla. Stat. § 768.0755(1) to show that Wal-Mart

had constructive knowledge of the dangerous condition through the methods

dictated in subparagraphs (1)(a) and (1)(b) (requiring proof of constructive

knowledge through evidence of the amount of time the condition existed or

through evidence the condition occurred with regularity). Second, Donnelly’s

argument is undermined because the alleged employee shown on the video was not

in the immediate vicinity of the spill; rather, he was walking past the chip and

bottled water aisle by the opposite end of the aisle from where the spill was

located.5


       5
          Though the cases Donnelly cites in support of her argument use the term “vicinity,”
they give the term a much different meaning than Donnelly seems to suggest. See, e.g., Aponte
v. Royal Caribbean Cruise Lines, Ltd., 739 F. App’x 531, 536 (11th Cir. 2018) (per curiam)
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       B.      Donnelly’s Motion to Amend

       Donnelly next argues that the district court erred in denying her motion for

leave to amend her complaint, which sought to plead a separate common law

negligence theory—that Wal-Mart used unsafe, slippery flooring. 6 First, she

maintains that she did not need to amend her complaint because the slipperiness of

Wal-Mart’s floors was “always at issue in the case.” Second, she contends that

even if she was required to seek leave to amend, the district court abused its

discretion in denying her request to do so.

       After the time for amendment as a matter of course has expired, a plaintiff

may only amend her complaint with “the opposing party’s written consent or the

court’s leave.” Fed. R. Civ. P. 15(a). Although “[t]he court should freely give

leave when justice so requires,”

id., it may deny

leave on “numerous grounds”



(holding in a maritime case that a reasonable factfinder could find sufficient notice when a
crewmember was in the “immediate vicinity” of large puddle of soap “at his feet”); Alterman
Foods, Inc. v. Ligon, 

272 S.E.2d 327

, 330 (Ga. 1980) (explaining that under Georgia law notice
can be found if defendant is in the “immediate area” of the dangerous condition).
       6
           Wal-Mart argues that we do not have jurisdiction to consider this issue because
Donnelly did not reference the district court’s order denying her motion for leave to amend in her
notice of appeal. We disagree. Where, as here, “a notice of appeal designates the final,
appealable order—and does not identify specific parts of that order for appeal—we have
jurisdiction to review that order and any earlier interlocutory orders that produced the
judgment.” Auto. Alignment & Body Serv., Inc. v. State Farm Mut. Auto. Ins. Co., 

953 F.3d 707

,
724–25 (11th Cir. 2020). Consequently, we have jurisdiction to review the district court’s order
denying Donnelly’s motion for leave to amend her complaint even though she did not
specifically designate the order in her notice of appeal, because it was an earlier interlocutory
order that produced the final judgment on appeal. See

id. at 723;

Barfield v. Brierton, 

883 F.2d 923

, 930–31 (11th Cir. 1989) (“[T]he appeal from a final judgment draws in question all prior
non-final orders and rulings which produced the judgment.”).
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such as “undue delay, undue prejudice to the defendants, and futility of the

amendment.” Abramson v. Gonzalez, 

949 F.2d 1567

, 1581 (11th Cir.

1992). Further, because Donnelly filed her motion after the scheduling order’s

deadline for amendments, she must show good cause why the district court should

have modified its scheduling order to grant her leave to amend her complaint. See

Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for good cause and

with the judge’s consent.”); Brewer-Giorgio v. Producers Video, Inc., 

216 F.3d 1281

, 1284 (11th Cir. 2000) (finding no abuse of discretion in district court’s

denial of leave to amend on grounds of undue delay, where movant failed to show

good cause for delay), abrogated on other grounds by Reed Elsevier, Inc. v.

Muchnick, 

559 U.S. 154

(2010); Sosa v. Airprint Sys., Inc., 

133 F.3d 1417

, 1419

(11th Cir. 1998) (per curiam) (“If we considered only Rule 15(a) without regard to

Rule 16(b), we would render scheduling orders meaningless and effectively would

read Rule 16(b) and its good cause requirement out of the Federal Rules of Civil

Procedure.”).

      “The decision whether to grant leave to amend is committed to the sound

discretion of the trial court.” See Shipner v. E. Air Lines, Inc., 

868 F.2d 401

, 406

(11th Cir. 1989). We review a district court’s denial of a motion for leave to

amend under Rule 15 for abuse of discretion. 

Oravec, 527 F.3d at 1231

. “A

district court has not abused its discretion when the court has ‘a range of choices’


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and the court’s choice ‘does not constitute a clear error of judgment.’” Vanderberg

v. Donaldson, 

259 F.3d 1321

, 1326 (11th Cir. 2001) (quotation omitted).

      The district court set June 15, 2019 as the deadline for amendments to

pleadings. On August 27, 2019, seventy-four days after the pleading amendments

deadline and after significant discovery, Donnelly moved to amend her complaint

to assert a new theory of liability—that Wal-Mart was negligent for “failing to

install, maintain, and provide safe flooring surfaces on its premises.” The district

court denied Donnelly’s motion in a paperless order, stating that “the amended

pleadings deadline passed on June 15, 2019.”

      We are not persuaded that Donnelly’s amendment was “prophylactic” and

merely providing “support” for the negligence theory already asserted in her

operative complaint. The operative complaint specifically alleged that the

“dangerous condition” that caused Donnelly’s fall was “a foreign slippery

substance on the floor” of Wal-Mart’s store. It did not allege that her fall was

caused or contributed to by the flooring itself. Rather, Donnelly’s amendment

sought to add a new theory of negligence and she failed to establish good cause for

the belated amendment. Under these circumstances, the district court did not abuse

its discretion in denying Donnelly’s motion.




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                              III.   Conclusion

     For these reasons, we affirm the district court’s grant of summary judgment

to Wal-Mart.

     AFFIRMED.




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