Kitty Kincaid v. Wal-Mart, Inc. and Jane Doe, Store Manager

Summary

The Florida Fourth District Court of Appeal affirmed summary judgment for Walmart in a premises-liability action arising from the plaintiff’s slip on a ruptured gel pack. The court held that the record did not establish Walmart’s actual or constructive knowledge of the specific dangerous condition under section 768.0755, Florida Statutes. The court also concluded that generalized evidence regarding gel-pack use, warning policies, and other slip-and-fall incidents was insufficient to create a genuine dispute of material fact.

Holdings

1. A business’s knowledge that employees used gel packs and that gel packs could rupture does not establish actual knowledge of the specific ruptured gel pack or slippery substance that caused the plaintiff’s fall. Because Kincaid identified no evidence that Walmart or its employees knew of, created, or placed the specific dangerous condition, summary judgment was proper.
2. Generalized evidence that gel packs were used, could rupture, and had occasionally been associated with slip-and-fall incidents did not establish that the dangerous condition occurred with sufficient regularity to be foreseeable or that it existed long enough for Walmart to discover it. Kincaid therefore failed to establish constructive knowledge.
3. Summary judgment is appropriate when the movant satisfies its initial burden and the nonmoving party, which bears the ultimate burden of proof at trial, fails to present evidence from which a reasonable jury could find in its favor on a material issue.
4. Kincaid’s argument that the meat bunker was leaking water and that Walmart employees knew of the leak was not preserved because she raised it for the first time in her motion for rehearing after entry of summary judgment.

Questions Presented

1. Whether summary judgment was proper where Kincaid presented no evidence that Walmart had actual knowledge of the specific ruptured gel pack or slippery substance.
2. Whether generalized evidence that Walmart used gel packs, that gel packs could rupture, and that other slip-and-fall incidents occurred established constructive knowledge under section 768.0755, Florida Statutes.
3. Whether Kincaid’s argument that a leaking meat bunker created the dangerous condition was preserved for appellate review when first raised in a motion for rehearing.

Disposition

affirmed