             Case: 13-13745    Date Filed: 07/25/2014   Page: 1 of 5


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 13-13745
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 0:12-cv-61578-WPD


MARIE CORINNE DOUDEAU,
                                                               Plaintiff-Appellant,

                                     versus


TARGET CORPORATION,
                                                             Defendant-Appellee.


                          ________________________

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

                                 (July 25, 2014)

Before PRYOR, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:

      Marie Doudeau appeals the district court’s grant of summary judgment in

favor of Target Corporation in her personal injury lawsuit. On appeal, Doudeau
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argues that the district court erred when it held that no questions of fact existed

about whether Target had constructive notice of the existence of a puddle of water

prior to Doudeau’s fall. She asserts that Target employees knew that water

regularly accumulated in this location and that this caused the floor to become

slippery. Further, she argues that the district court ignored her claim for negligent

mode of operation, and that a jury should determine if Target failed to take the

appropriate measures to ensure the safety of its invitees.

      Doudeau was shopping at the Target store in Hollywood, Florida, with her

daughter, Danielle Bohenstiel, on August 1, 2011. On that day, it had been

raining intermittently and there was standing water in the parking lot and the area

in front of the store. Doudeau proceeded to the back of the store and walked

around the entire store before heading back towards the front. She was in the front

of the store, near the “One Spot,” which was located approximately ten to fifteen

feet from where the carpet at the entrance of the store ended. While holding onto

the side of her daughter’s shopping cart and walking, Doudeau slipped and fell to

the floor. Doudeau testified that she landed in a twelve-inch puddle of clean water

that had no tracks or footprints in it.

      We review a district court’s grant of summary judgment de novo, applying

the same legal standard as the trial court. Watkins v. Ford Motor Co., 190 F.3d

1213, 1216 (11th Cir. 1999). Summary judgment is proper if the evidence, viewed


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in the light most favorable to the nonmoving party, presents no genuine dispute as

to any material fact and compels judgment as a matter of law. Celotex Corp. v.

Catrett, 477 U.S. 317, 322–23, 106 S. Ct. 2548, 91 L. Ed.2d 265 (1986). Where

jurisdiction is founded on diversity and no federal question is involved, we apply

substantive state law, either declared by the state’s legislature or by its highest

court in a decision. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82

L. Ed. 1188 (1938). If the Supreme Court of Florida has not addressed a particular

issue, federal courts are bound by the decisions of the Florida district courts of

appeal that address the disputed issue, unless there is an indication that the

supreme court would not adhere to the district court’s decision. Geary Distrib. Co.,

Inc. v. All Brand Imp., Inc., 931 F.2d 1431, 1434 (11th Cir. 1991).

      Florida law provides that: “[i]f 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.” Fla. Stat. § 768.0755(1).

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. Id.




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       The district court relied primarily upon two cases in its decision. In

Sammon v. Target Corporation, 2012 WL 3984728 (M.D. Fla. 2012), the court

granted summary judgment to Target because it held that the plaintiff had not

shown constructive or actual knowledge on the part of the corporation. The court

pointed out that it had not been raining and there was no indication of how the

water plaintiff slipped in had gotten on the floor. Similarly, in the other case,

Delgado v. Laundromax, Inc., 65 So.2d 1087 (Fla. 3d DCA 2011), the court

granted summary judgment to the defendant because the plaintiff provided no

evidence that the defendant had constructive or actual knowledge of the presence

of water on the floor. There, too, the court pointed out that there was no evidence

that it was raining or had rained, which would have provided the source of the

water. 65 So.2d at 1090.

       By contrast, here there was testimony that it had been raining and there was

standing water in the parking lot. Further, an employee who helped Doudeau after

she fell stated that the water must have been tracked in from outside. Another

Target employee testified that the area ten to fifteen feet away, where the carpet

met the tile, was a known slip and fall area when it rained.1 While the district

court stated that the testimony of Target employee Michael Protz was that he had


1
        Although the district court assumed that this area—with respect to which a Target
employee said was a known slippery area when it rained—was “an entirely different location of
the store from where the plaintiff fell,” Order at 9, a reasonable jury could find otherwise.
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walked through the area less than four minutes before the fall and there was

nothing there, Protz actually testified that he did not see anything on the floor. A

review of the surveillance video shows Protz walking through the area but his gaze

is not on the floor but instead at the customers, which would be logical given that

Protz is in charge of loss protection. That same surveillance footage does not

reveal any water being spilled on the floor between Protz’s walkthrough and

Doudeau’s fall. These facts, taken in the light most favorable to the plaintiff,

support a reasonable inference that Target had constructive knowledge that

rainwater could create a slippery floor in the area where Doudeau fell and that the

water could have been on the floor long enough for Target to discover it.

      The decision of the district court granting Target’s motion for summary

judgment is reversed.

REVERSED and REMANDED.




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