       Third District Court of Appeal
                               State of Florida

                          Opinion filed January 25, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D14-3094
                         Lower Tribunal No. 11-32791
                             ________________


                         Harriette Wilson-Greene,
                                    Appellant,

                                        vs.

                         The City of Miami, et al.,
                                    Appellees.



      An Appeal from the Circuit Court for Miami-Dade County, Ronald C.
Dresnick, Judge.

      Lindsey M. Tenberg (Lighthouse Point), for appellant.

      Walton Lantaff Schroeder & Carson and Stephanie M. Suarez and Michael
H. Galex; Victoria Méndez, City Attorney, and Kerri L. McNulty, Assistant City
Attorney, for appellees.


Before SUAREZ, C.J., and SALTER, J., and SHEPHERD, Senior Judge.

      SHEPHERD, Senior Judge.
      This is an appeal from an order granting summary judgment on liability in

favor of a building owner and a maintenance company in a slip-and-fall accident

case. We affirm.

                      Factual and Procedural Background

      The accident in this case occurred in May 2008 at the lobby elevator bank at

Miami Riverside Center, a building owned by the City of Miami.                 Vista

Maintenance Services, Inc., had the maintenance contract for the building at the

time of the accident. On the day of the incident, the plaintiff, Harriette Wilson-

Greene, arrived at the building between 11:00 a.m. and noon to deliver some

paperwork to the inspection division of the City Building Department, located on

the second floor of the building. According to her own testimony, she took an

elevator from the lobby to the second floor, just as she had done on two or three

prior occasions. She did not see any substance on the floor before she entered the

elevator nor did she see any substance on the floor during her previous visits to the

building.

      Wilson-Greene testified she spent “longer than 15 minutes” on the second

floor conducting her business, and then returned to the lobby using an elevator in

the same elevator bank. According to her testimony, after taking just a couple of

steps out of the elevator, Wilson-Greene slipped and fell backwards in the hallway

between the two facing banks of elevators that serve the building, hit her head, and



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lost consciousness.       When she regained consciousness, she observed a green

substance all over her feet, sandals, between her legs, and on parts of her upper

body. She also testified the substance was “not hot.” The building incident report,

which the parties stipulated was authentic, states the accident occurred at 11:15

a.m. and the substance was “soup that was on the floor in the hallway of the

elevators.” Wilson-Greene said the manager of the building’s security company

told her the substance was green pea soup. Although there is a restaurant in the

lobby of the building, there is no evidence in the record that the restaurant was

serving pea soup that day.1

         Vista moved for summary judgment on the ground that it did not owe

Wilson-Greene a legal duty to “constantly patrol and supervise the area where the

incident occurred.” Alternatively, if the court found it did owe a duty to Wilson-

Greene, Vista argued it had no actual or constructive notice of the dangerous

condition. At the hearing on Vista’s motion for summary judgment, the City ore

tenus moved for summary judgment on the same grounds. The trial court granted

summary judgment in favor of both Vista and the City, and Wilson-Greene appeals

from the judgments.

                                         Analysis



1   The restaurant is not a party to this appeal.


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      “The standard of review of a summary judgment order is de novo and

requires viewing the evidence in the light most favorable to the non-moving

party.” Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). 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.” Bartsch v.

Costello, 170 So. 3d 83, 86 (Fla. 4th DCA 2015). Generally,

      [t]he duty of the landowner to a business invitee is to maintain the
      premises in a reasonably safe condition and to warn the invitee of
      latent perils which are known or should be known to the owner but
      which are not known to the invitee or which, by the exercise of due
      care could not be known to him.

Storr v. Proctor, 490 So. 2d 135, 136 (Fla. 3d DCA 1986). 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.” Maryland Maint.

Serv., Inc. v. Palmieri, 559 So. 2d 74, 76 (Fla. 3d DCA 1990).

      The pertinent language of the maintenance contract between Vista and City

provides that Vista is to “pay close attention to the 3-story lobby area” and “not to

underestimate the lobby requirements . . . as this is a critical area of importance.”

Additionally, the contract states that Vista is to “police [the] area and rearrange

furniture on a daily basis.” Wilson-Greene argues, based upon this language, a

reasonable jury could hold Vista liable for failing to use “reasonable and ordinary



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care” in meeting its contractual obligations.     We disagree.    Wilson-Greene’s

argument, reduced to its essentials, is that Vista owed a duty to the building

patrons constantly to patrol and supervise the area where the accident occurred.

We believe Wilson-Greene reads more into the contract than the contract language

can bear.   The contract language did not create a contractual duty on Vista

constantly to patrol the building. Nor, we add, does the language of the contract,

which performed a dual function as the bid documentation to the City before the

contract was awarded, hold Vista and the City to a heightened duty of care. We

recognize that “[w]here an express provision within a professional services

contract provides for a heightened standard of care . . ., the professional must

perform in accordance with the terms of the contract.” Sch. Bd. of Broward Cnty.

v. Pierce Goodwin Alexander & Linville, 137 So. 3d 1059, 1065-66 (Fla. 4th DCA

2014) (citing CH2M Hill Se., Inc. v. Pinellas Cnty., 698 So. 2d 1238, 1240 (Fla. 2d

DCA 1997) (“[I]f the professional contracts to perform duties beyond those

required by ordinary standards of care, the quality of that performance must

comport with the contractual terms.”).       In this case, while the contract does

emphasize the importance of maintenance in the lobby area of the building, as in

School Board of Broward County, the language is insufficient to place a

heightened standard of care on Vista.




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      Additionally, there were no permissible inferences upon which Wilson-

Greene could rely in defense of the motions for summary judgment to demonstrate

the existence of constructive notice.

      In order for a plaintiff to recover for injuries received in a slip and
      fall, the plaintiff must show that the defendant responsible for the
      premises had actual or constructive notice of the dangerous condition.
      Constructive notice may be shown by presenting evidence that the
      condition existed for such a length of time that in exercise of ordinary
      care, the defendant should have known of the condition, or by
      showing that the condition occurred with regularity and, consequently,
      was foreseeable.

Palmieri, 559 So. 2d at 76; see also § 768.0755, Fla. Stat. (2010). In the instant

case, there is no actual notice because no one saw the substance spill on the floor

and no one knows how it got there. Thus, we are left to consider whether Vista

and the City had constructive notice of the dangerous condition.

      When considering whether there is an issue of fact for submission to a jury

in transitory foreign substance cases, courts look to the length of time the condition

existed before the accident occurred.    Dominguez v. Publix Super Markets, Inc.,

187 So. 3d 892, 894 (Fla. 3d DCA 2016). In this case, the jury would have to

stack inferences to conclude that Vista and the City had constructive notice of a

dangerous condition. Although it is true that a non-moving party to a summary

judgment motion may set forth a genuine issue of material fact through “justifiable

inferences from facts presented to the trial court,” Carbonell v. BellSouth

Telecommunications, Inc., 675 So. 2d 705, 706 (Fla. 3d DCA 1996), the stacking


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of inferences is not permitted. See Cohen v. Arvin, 878 So. 2d 403 (Fla. 4th DCA

2004). The rule on the impermissible stacking of inferences provides:

      [I]n a civil case, a fact may be established by circumstantial evidence
      as effectively and as conclusively as it may be proved by direct
      positive evidence. The limitation on the rule simply is that if a party to
      a civil action depends upon the inferences to be drawn from
      circumstantial evidence as proof of one fact, it cannot construct a
      further inference upon the initial inference in order to establish a
      further fact unless it can be found that the original, basic inference
      was established to the exclusion of all other reasonable inferences.

Cohen at 405 (quoting Gelco Convention Servs. v. Pettengill, 710 So. 2d 581, 583

(Fla. 4th DCA 1998)). In the instant case, additional facts are needed in order to

reach the conclusion that the soup was on the floor long enough to cool without

assuming other facts – such as that the soup was hot prior to it being spilled. The

mere presence of soup which is “not hot” on the floor is not enough to establish

constructive notice as to Vista or the City.

      Wilson-Greene relies heavily on Teate v. Winn-Dixie Stores, Inc., 524 So.

2d 1060 (Fla. 3d DCA 1988), for the argument that because the soup was “not hot”

the jury could infer it was there for a substantial period of time for Vista and the

City to have known of its existence. We find Teate distinguishable from the

instant case. Teate slipped and fell on some peas in the frozen food department of

a Winn-Dixie supermarket. The plaintiff introduced evidence showing there was

some water on the floor around the peas and no employee had cleaned the area for

fifteen to twenty minutes before the fall. Thus, Teate alleged the water was there


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because the peas had been on the floor for some time and had thawed. Although

Winn-Dixie countered that the water was a result of “permafrost” or ice crystals on

the bag of peas that instantly melted when it hit the floor, Teate argued the jury

could choose to believe this argument or could find the peas had been on the floor

for a sufficient time to put Winn-Dixie on notice of the dangerous condition.

Unlike in the instant case, the resolution of the issue in Teate did not require the

jury to build one inference on another. The court properly reasoned,

      [s]ince it was established that there was some water on the floor, it
      was completely within the jury’s province to decide why the water
      was there. The jury needed to draw only one inference from direct
      evidence to reach a decision as to the defendant’s constructive notice
      of the condition. It was entitled to believe Teate and to select the
      inference that it did.

Id.

      We conclude that where melting substances are involved, there is no need to

infer the substance was previously frozen. Logic tells us that is a given. In the

instant case, the jury first would need to infer that the substance was hot prior to

spilling on the floor and infer from this that it was on the floor a sufficient amount

of time for it to have cooled.       This requires a jury to impermissibly stack

inferences. We distinguish the other melting substances cases cited by Wilson-

Greene for the same reasons. See Camina v. Parliament Ins. Co., 417 So. 2d 1093,

1094 (Fla. 3d DCA 1982) (finding that plaintiff’s slip and fall on thawed ice

cream, which was “dirty and splattered,” was “susceptible of the inference that the


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condition existed beforehand . . . so as to make the issue of the defendant’s

constructive notice of the condition one to be resolved by the jury”); Grizzard v.

Colonial Stores, Inc., 330 So. 2d 768, 769 (Fla. 1st DCA 1976) (where the

substance plaintiff slipped on “was identified as partially frozen, partially liquefied

orange juice concentrate” the court concluded, “a jury could find that the substance

on the floor was there long enough to partially thaw”).

      For the foregoing reasons, the trial court properly granted summary

judgment in favor of Vista and the City. Because we determine the lack of duty

and constructive notice to be dispositive, we decline to address other arguments

raised by Wilson-Greene. We therefore, affirm.

      Affirmed.




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