       Third District Court of Appeal
                               State of Florida

                          Opinion filed February 1, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-0834
                          Lower Tribunal No. 13-1003
                             ________________


                           Carmen Encarnacion,
                                    Appellant,

                                        vs.

               Lifemark Hospitals of Florida, etc., et al.,
                                    Appellees.



      An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.

      Eaton & Wolk, PL, and Douglas F. Eaton, for appellant.

       Falk, Waas, Hernandez, Cortina, Solomon, & Bonner, P.A., and Glenn Falk,
Sr., Scott L. Mendlestein and Richard A. Warren; Bice Cole Law Firm, P.L., and
Neil A. Covone, for appellees.


Before ROTHENBERG and SCALES, JJ., and SHEPHERD, Senior Judge.

      SHEPHERD, Senior Judge.
      Carmen Encarnacion appeals from a summary final judgment in a slip-and-

fall case she brought against Lifemark Hospitals of Florida, Inc., doing business as

Palmetto General Hospital, and the Hospital’s contract cleaning company, Hospital

Housekeeping Systems, Inc., for injuries suffered from a fall in the emergency

room hallway of the hospital. The thrust of Ms. Encarnacion’s argument to the

trial court was that a genuine issue of material fact existed concerning whether the

hospital and its housekeeping vendor knew or should have known of the dangerous

condition. The trial court found there was no genuine issue of material fact and

granted final summary judgment to the hospital and cleaning company. We agree

and affirm the decision of the trial court, albeit with a slightly different analysis. A

brief summary of the facts of the case are necessary to explain our decision.

                                       FACTS

      Ms. Encarnacion arrived at Palmetto General Hospital at approximately 4:45

p.m. on March 11, 2011, to assist her elderly mother, who had arrived in the

emergency room a few hours earlier after having suffered a stroke. She found her

mother still in the emergency room, resting comfortably. A hospital nurse advised

Ms. Encarnacion that her mother needed to be admitted to the hospital, but that

they would have to wait a short time for a bed to come available. After five hours,

Ms. Encarnacion decided to seek out a nurse to determine the status of their wait.

As Ms. Encarnacion left the room, she saw a man who she thought was an



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Emergency Medical Services (EMS) paramedic with a spray bottle in the hallway,

cleaning a stretcher. She attempted to walk around the area where the man was

cleaning, but slipped and fell due to what she “guess[ed],” was spray liquid on the

floor.

         Almost two years later, on January 9, 2013, Ms. Encarnacion sued the

Hospital and soon thereafter joined Hospital Housekeeping Systems. Shortly after

suit was filed, Ms. Encarnacion submitted a statement of claim to the Risk

Management Division of Miami-Dade County in which she stated that the

substance she slipped on was the same as that being used by the EMS paramedic.

She repeated this assertion in her answers to the hospital’s interrogatories, stating

again that she slipped because of a slippery substance which “EMS personnel was

using to clean a stretcher in the hallway.”

         On July 15, 2013, six months into the lawsuit, Ms. Encarnacion became a

little less certain about the identity of the person who was cleaning the stretcher,

stating the man “may be a rescue.”            She also testified there were no signs

indicating the floor was wet; that aside from the spray bottle, she did not see any

mop bucket, dripping mops, or food service items in the hallway; and the substance

on the floor was “oily”, dirty”, and “dark.” About a month later, in a subsequent

deposition, Ms. Encarnacion asserted that the substance smelled like a cleaning

product similar to “Pine Sol,” she did not know how long the substance had been



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on the floor, and she thought that “because [the man’s] uniform was kind of gray,

dark gray, [she assumed] that he was an EMS.”

      Both the Hospital and Hospital Housekeeping Systems moved for summary

judgment on the ground there was a complete lack of evidence that either the

Hospital or Hospital Housekeeping Systems had actual or constructive knowledge

of the condition and, based on Ms. Encarnacion’s answers to interrogatories, it was

undisputed that the person using the spray was an EMS paramedic. The Hospital

further asserted that it employed reasonable measures to maintain its emergency

department in a reasonably safe condition by having its own security personnel

police the emergency room area on a regular basis to correct any dangerous

condition, and by employing Hospital Housekeeping Systems, which assigned two

housekeepers to the emergency department twenty-four hours per day, seven days

per week. Absent from the record were cleaning schedules, cleaning logs or

employee testimony concerning the extent to which the Hospital’s security

personnel or Hospital Housekeeping Systems performed their assigned and

contractual tasks. On this record, the trial court granted summary judgment in

favor of the Hospital and Hospital Housekeeping Systems, Inc.

                           STANDARD OF REVIEW

      Summary judgment is proper when the pleadings, discovery and affidavits

show there is “no genuine issue as to any material fact and that the moving party is



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entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510.   Material facts are

those which may affect the outcome of the case. Winn-Dixie Stores, Inc. v.

Dolgencorp., Inc., 964 So. 2d 261, 263-264 (Fla. 4th DCA 2007) (“An issue of fact

is ‘material’ if it is a legal element of the claim under the applicable substantive

law which might affect the outcome of the case.”) (citing Byrd v. BT Foods, Inc.,

948 So. 2d 921, 923) (Fla. 4th DCA 2007). A dispute as to a material fact is

genuine if there is sufficient evidence for a reasonable jury to return a verdict for

the non-moving party. Bishop v. R. J. Reynolds Tobacco Co., 96 So. 3d 464, 467

(Fla. 5th DCA 2012) (“Issues of fact are ‘genuine’ only if a reasonable jury,

considering the evidence presented, could find for the non-moving party.”) (citing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)); see also Dreggors v.

Wausau Ins. Co., 995 So. 2d 547, 549 (Fla. 5th DCA 2008).

                                       ANALYSIS

      We apply this standard separately to each defendant.

                          I. Palmetto General Hospital

      “A negligence claim has four elements: (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.” Wilson-Greene v. City of Miami, No. 3D14-3094, slip op. at 4 (Fla. 3d

DCA Jan. 25, 2017) (citing Bartsch v. Costello, 170 So. 3d 83, 86 (Fla. 4th DCA



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2015)). It is undisputed that Ms. Encarnacion was a business invitee on the

hospital premises and, therefore, the hospital owed her a duty to exercise

reasonable care to maintain their premises in a safe condition. Pembroke Lakes

Mall Ltd. v. McGruder, 137 So. 3d 418, 423 (Fla. 4th DCA 2014). However,

where a business invitee slips and falls on a “transitory substance” in a business

establishment as occurred here, proof of the breach element of the claim against an

owner of the establishment is statutorily constrained by section 768.0755 of the

Florida Statutes (2013). The statute reads as follows:

      768.0755. Premises liability for transitory foreign substances in a
      business establishment

      (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.

      (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.

(Emphasis added.)




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      Here, there is no evidence in the record suggesting the existence of the

foreign substance on the floor was known to the hospital. In the absence of

evidence of actual knowledge, it was incumbent on the plaintiff to come forward

with circumstantial evidence that Palmetto General Hospital, in the exercise of

ordinary caution, should have known of the condition. In this case, however, the

answers to interrogatories and depositions do not establish how long the substance

had been on the floor. In fact, if Ms. Encarnacion’s testimony is believed, the

liquid was being deposited on the floor by a non-hospital employee at the same

time Ms. Encarnacion fell. See McCarthy v. Broward College, 164 So. 3d 78 (Fla.

4th DCA 2015) (affirming summary judgment for defendant where there was no

evidence of how long the substance was on the floor before the fall); Walker v.

Winn-Dixie Stores, Inc., 160 So. 3d 909 (Fla. 1st DCA 2014) (same); Delgado v.

Laundromax, Inc., 65 So. 3d 1087 (Fla. 3d DCA 2011) (same).

      Parenthetically, we note Ms. Encarnacion’s belated testimony that the

substance on the floor was “oily,” “dirty” and “dark,” even if true, as we must

assume for our purposes here, is insufficient to create a jury issue. For such

testimony to create a jury issue, the testimony 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




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assuming other facts, such as the substance, in its original condition, was not

“oily,” “dirty” and “dark.” See Wilson-Greene slip op. at 6.

                       II. Hospital Housekeeping Systems

      The liability of Hospital Housekeeping Systems in this case turns on a

slightly different point, its contractually assumed obligations. Wilson-Greene, slip

op. at 4 (“Where a contract exists, ‘a defendant’s liability extends to persons

foreseeably injured by his failure to use reasonable care in performance of a

contractual promise’”) (citing Maryland Maint. Serv., Inc. v. Palmieri, 559 So. 2d

74, 76 (Fla. 3d DCA 1990).        The cleaning specifications for the Emergency

Department of the hospital, insofar as the plaintiff has elected to provide them to us

in the record, states: “Emergency department shall be cleaned on a UCR bases,

24-7 and police cleaned, as necessary.” As in Wilson-Greene, Hospital

Housekeeping Systems had no duty to constantly patrol or supervise the area

where the accident occurred.

      For these reasons, we affirm the summary judgment entered in favor of the

Hospital and Hospital Housekeeping Systems.

      Affirmed.




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