Inspecting Floors Every 15 Minutes May Defeat a “Constructive Notice” Argument in Florida Slip/Trip and Fall Lawsuits

In a 2023 trip and fall case, the United States District Court for the Middle District of Florida granted summary judgment in favor of Defendant Wal-Mart. Kozlowski v. Wal-Mart Stores E., LP, No. 5:21-cv-261-ACC-PRL, 2023 U.S. Dist. LEXIS 116861 (M.D. Fla. May 19, 2023). The plaintiff alleged that she tripped due to humps and ripples in a floor mat at the front entrance of the store. Over an hour of CCTV footage was provided as evidence, demonstrating that due to foot traffic, the floor mat would incrementally move toward the automatic doors at the entrance. If the mat reached the threshold of the doors, the doors’ movement could in fact cause humps/ripples to develop in the mat. The CCTV footage also showed that a Wal-Mart employee would periodically adjust the floor mat, moving it away from the threshold of the automatic doors to ensure that it was flat.

Under Florida law, to establish that a business owner had actual or constructive notice in a slip/trip and fall case, a plaintiff must prove that the business owner, often through its agents/employees, either:

1) created the condition,

2) actually knew about the condition, or

3) had constructive knowledge because

(a) the condition existed long enough to give it a reasonable opportunity to discover the problem or

(b) the condition occurred with such regularity to constitute foreseeability and impute liability to the owner.[i]

The burden is on the plaintiff to show actual or constructive notice of the allegedly dangerous condition. Kozlowski helps to establish a presumption in Florida that a business that inspects its floor/premises every fifteen minutes may defeat a “constructive notice” argument in certain slip/trip and fall lawsuits.

In Kozlowski, the CCTV footage showed that humps/ripples were indeed formed in the floor mat due to the movement of the automatic doors; however, the hump(s) that actually caused the plaintiff to trip and fall developed mere seconds before she tripped and as the plaintiff herself entered the store. While the Court found that the plaintiff failed to present any evidence indicating Wal-Mart had actual notice of these particular humps or ripples, what is perhaps more interesting is the Court’s determination that the plaintiff also did not meet her burden regarding constructive notice.

In making this determination, the Court observed that “Walmart points to numerous cases finding as a matter of law that the presence of a condition for fifteen minutes or less is insufficient under Florida law to establish constructive notice.” Further, the Court stated that a slip and fall case from 2021 was most directly on point, noting that CCTV footage, in that case, showed the store’s employee had inspected the area where the plaintiff fell ten minutes before her fall. Hernandez v. Sam's E., Inc., No. 20-CV-61648-RAR, 2021 U.S. Dist. LEXIS 79275 (S.D. Fla. Apr. 26, 2021). The Court also cited a Middle District of Florida case from 2016 where summary judgment was granted to the defendant store based on surveillance footage showing that a spill on the floor existed for under ten minutes and quoted the court’s finding that “in cases where the dangerous condition had existed for less than fifteen minutes, courts have found that the condition did not last for a sufficient period of time to put the defendant on constructive notice of the condition.” Straube v. Moran Foods, LLC, No. 8:16-cv-49-T-24 AEP, 2016 U.S. Dist. LEXIS 147410 (M.D. Fla. Oct. 25, 2016) (citations omitted).

In Kozlowski, the Court found that because the particular hump or ripple in the mat existed for a matter of seconds, and because an employee inspected the area where the Plaintiff fell within eleven minutes of her fall, “[t]here [was] insufficient evidence to support a finding that the humped or rippled mat existed for such a length of time that Walmart had constructive knowledge of the condition.” The Court addressed several of the plaintiff’s arguments as to the issue of foreseeability (that the condition that led to plaintiff’s injury occurred with enough frequency that Wal-Mart should have known about it) imputing constructive notice to Wal-Mart, finding against the plaintiff as to each for various reasons, including the fact that a Wal-Mart employee inspected the position of the mat eleven minutes before the fall.

Several of the footnotes in Kozlowski are also worth considering. Footnote 11 points out that a case the plaintiff cited “involved a period of eighteen minutes and does not support her argument, but lends credence to Walmart’s argument that ‘constructive notice’ is not found for period of less than 15 minutes.” Further, in footnotes 12 and 13, the Court states that “[c]ourts have also found that a failure to inspect for a given length of time in itself does not establish constructive knowledge” and that while the plaintiff cites a case noting that a business owner’s neglect in inspecting its premises had previously been a way to establish constructive knowledge in Florida, “courts have more recently found that a failure to inspect does not establish constructive knowledge” (citations omitted).

So, what should you take away from Kozlowski v. Wal-Mart? First, a business should quickly correct any and all “dangerous conditions” of which it has actual knowledge. Second, while a business need not inspect its floors/premises every fifteen minutes, it would be prudent to establish policies and procedures in which employees do inspect at 15-minute intervals, particularly in areas that may be susceptible to “dangerous conditions,” such as entrances/exits, areas with floor mats, restrooms or other areas that may be more prone to spills, etc. Third, Florida courts appear to now recognize as a well-established legal principle that a business, as a matter of law, should be able to defeat a “constructive notice” argument if that business had inspected the area where the slip/trip and fall occurred within a time period of fifteen minutes or less prior to the occurrence of the incident.[ii] Finally, Kozlowski demonstrates that it is often helpful to have CCTV surveillance at a business, particularly if footage provides evidence that the business, its agents and/or its employees perform routine 15-minute inspections.

If you have any questions on how this case and/or the issues addressed in it may affect your business, please reach out to the authors of this publication and/or your Dinsmore attorney.