       Third District Court of Appeal
                               State of Florida

                        Opinion filed November 08, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-2266
                          Lower Tribunal No. 12-4944
                             ________________


                            Miami-Dade County,
                                    Appellant,

                                        vs.

                                Wanda Jones,
                                    Appellee.



     An Appeal from the Circuit Court for Miami-Dade County, Jacqueline
Hogan Scola and Bronwyn C. Miller, Judges.

     Abigail Price-Williams, Miami-Dade County Attorney, and Altanese
Phenelus, Assistant County Attorney, for appellant.

      Lawrence J. Bohannon, P.A., and Keith E. Hope (Fort Lauderdale), for
appellee.


Before ROTHENBERG, C.J., and SUAREZ and SALTER, JJ.

     ROTHENBERG, C.J.
      Miami-Dade County (“the County”) appeals an adverse final judgment and

an order denying the County’s motion for a directed verdict, a judgment

notwithstanding the verdict, and a new trial (“post-trial motion”) entered after a

jury verdict finding the County negligent for allowing a grease spill to remain on a

County-owned sidewalk, which Wanda Jones (“Jones”) alleged caused her to slip

and fall. For the following reasons, we find that the trial court erred by denying the

County’s post-trial motion because Jones failed to introduce evidence from which

the jury could infer that the County had notice of the dangerous condition that

caused Jones to slip and fall. We also find that the trial court erred by permitting

Jones to introduce irrelevant and prejudicial County ordinances.

                                 BACKGROUND

      Jones slipped and fell on a greasy sidewalk owned by the County while

visiting a barbeque stand located on private property that was operated by V-II

Sports Club, Inc. (“the Sports Club”). Jones contended that a faulty grease disposal

system underneath the barbeque stand caused grease to spill out onto the sidewalk.

Jones suffered injuries from her fall and sued the County and the Sports Club. In

her operative complaint, Jones alleged that the Sports Club was responsible for

creating the dangerous condition on the sidewalk, and she alleged that the County

negligently maintained the sidewalk by allowing the dangerous condition to remain

on the sidewalk.



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      After a trial, the jury found the Sports Club 50% liable, the County 50%

liable, and Jones 0% liable. Thereafter, the County filed its motion for a directed

verdict, judgment notwithstanding the verdict, and a new trial. The County argued,

in relevant part, that there was no evidence that the County had notice of the

dangerous condition on the sidewalk and that the trial court erred by permitting

Jones to introduce County ordinances and other irrelevant and prejudicial evidence

in an attempt to prove that the County had notice. After the trial court denied the

County’s post-trial motions, the County appealed.

                                   ANALYSIS

      We review the trial court’s denial of a motion for a directed verdict and a

motion for judgment notwithstanding the verdict de novo. Marriott Int’l, Inc. v.

Am. Bridge Bahamas, Ltd., 193 So. 3d 902, 905 (Fla. 3d DCA 2015). The trial

court’s evidentiary rulings and denial of a motion for a new trial are reviewed for

an abuse of discretion. Weatherly v. Louis, 31 So. 3d 803, 805 (Fla. 3d DCA

2009); Padilla v. Buell, 797 So. 2d 609 (Fla. 3d DCA 2001).

      We begin with the general principle in premises liability cases that “[a]ll

premises owners owe a duty to their invitees to exercise reasonable care to

maintain their premises in a safe condition.” Owens v. Publix Supermarkets, Inc.,

802 So. 2d 315, 320 (Fla. 2001). “In order for a plaintiff to recover for injuries

received in a slip and fall, the plaintiff must show that the defendant responsible



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for the premises had actual or constructive notice of the dangerous condition.”

Wilson-Greene v. City of Miami, 208 So. 3d 1271, 1274 (Fla. 3d DCA 2017)

(quoting Maryland Maint. Serv., Inc. v. Palmieri, 559 So. 2d 74, 76 (Fla. 3d DCA

1990)); see also Encarnacion v. Lifemark Hosps. of Fla., 211 So. 3d 275, 278 (Fla.

3d DCA 2017). Constructive knowledge of a dangerous condition “may be inferred

from either: (1) the amount of time a substance has been on the floor; or (2) the

fact that the condition occurred with such frequency that the owner should have

known of its existence.” Delgado v. Laundromax, Inc., 65 So. 3d 1087, 1090 (Fla.

3d DCA 2011).

      In the instant case, Jones concedes that the County did not cause the grease

to spill onto its sidewalk and that the County did not have actual knowledge of the

grease on the sidewalk. We also find no evidence in the record indicating how long

the grease was present on the sidewalk on the day that Jones fell. To the contrary,

Jones testified at trial that she did not know how long the grease had been on the

ground that day, but that it appeared “fresh.” Thus, the County’s appeal reduces

down to a very specific question: whether Jones presented evidence at trial to

support her allegation that the grease was present on the sidewalk with such

frequency that the County should have known about it.

      Jones relies heavily upon photographs of a discoloration on the sidewalk

next to the barbeque stand in order to prove that the County had constructive notice



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of a frequently occurring dangerous grease spill. However, even when we consider

the evidence in the light most favorable to Jones, we cannot find any record

evidence or testimony regarding what caused the discoloration on the sidewalk,

whether there were grease spills on that area of the sidewalk in the past, and

whether anyone had identified a grease spill on the sidewalk at any point before

Jones fell. As a matter of fact, Jones testified that she did not know what caused

the discoloration in the sidewalk, and no evidence was presented indicating that

anyone had ever complained about or noticed a grease spill on the sidewalk before.

Simply put, Jones failed to present any evidence that a grease spill occurred on the

discolored sidewalk even once before Jones’s fall, let alone with such frequency

that the County should have known about it.

      The remainder of the evidence that Jones points to in order to show that the

County had constructive notice does not actually tend to show that the County

should have had notice of the grease spill. For example, Jones introduced evidence

that County inspectors and employees were present in the area numerous times

over a course of years. However, Jones did not introduce any evidence to suggest

that there was grease on the sidewalk during any of these inspections which could

have put the County on notice that the grease collection system employed by the

Sports Club was insufficient.     There was also no evidence introduced that

suggested that the inspections were conducted in response to a call relating to a



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grease spill or that anyone had ever reported or otherwise witnessed a grease spill

in the area prior to Jones’s fall. Accordingly, the trial court should have granted

the County’s post-trial motion and entered a judgment in favor of the County.

      Although our finding that Jones failed to introduce any evidence as to the

County’s constructive notice of the grease spill is dispositive, we additionally find

that the introduction, over objection, of County ordinances, relating to inspections

and permits for public food establishments, as evidence tending to show that the

County had constructive notice of the grease spill was error. The mere fact that an

ordinance may cover the subject of inspecting food establishments does not imply

that the County had constructive notice of a dangerous condition created by a food

establishment. In fact, the ordinances would only be relevant in this case if they

were introduced to show that the County should have but failed to comply with its

duty to inspect the barbeque stand. However, the County has sovereign immunity

from liability for enforcing or failing to enforce its laws. See Trianon Park Condo.

Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912, 922 (Fla. 1985) (“Governments

must be able to enact and enforce laws without creating new duties of care and

corresponding tort liabilities that would, in effect, make the governments and their

taxpayers virtual insurers of the activities regulated.”).

      The trial court’s limiting instruction did not limit, and in fact exacerbated the

unfair prejudice and confusion caused by the introduction of the County



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ordinances. The trial court specifically told the jury that it could use the ordinance

for the purpose of determining whether the County had notice of the grease spill

(even though the ordinances are not relevant for this purpose) and told the jury that

it could not use the ordinances to establish that the County was liable for failing to

enforce its ordinances (even though that is the only way to make the ordinances

pertinent).1

      Lastly, we also conclude that it was error to allow Jones to testify that the

barbeque stand was owned and operated, in part, by off-duty County bus drivers.

Such testimony was irrelevant, as the County was not sued for the actions of its

off-duty bus drivers who clearly were not acting within the scope of their

employment. The testimony unfairly prejudiced the jury because it allowed the

jury to infer that the County was or should have been put on notice by these off-

duty employees that there existed a dangerous condition on a County-owned

sidewalk. Worse still, the jury might have concluded that the County should be

held liable for the negligence of its off-duty employees—a theory that was neither

pled nor argued, and which counsel for Jones admits would have been improper.

                                  CONCLUSION




1 The existence of unfair prejudice and confusion is not hypothetical because the
record demonstrates that the questions the jury asked during deliberations related
to permitting and zoning.

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      In summary, we find that Jones failed to introduce any evidence to show that

the County had constructive notice of the grease spill that caused Jones to slip and

fall, and therefore, the trial court erred by denying the County’s post-trial motion.

We also find that the trial court abused its discretion by permitting Jones to

introduce irrelevant and prejudicial County ordinances and by permitting Jones to

testify that the barbeque stand owners and operators were also off-duty County

employees. If the only errors below were the improperly introduced evidences, we

would have remanded this case to the trial court for a new trial. However, because

Jones also failed to introduce any evidence to support a finding that the County had

constructive notice of the dangerous condition, we reverse the final judgment and

the trial court’s order denying the County’s post-trial motion and remand for the

entry of a judgment in favor of the County.

      Reversed and remanded.




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