Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JOLEEN GREELEY, Appellant, v. WAL-MART STORES EAST, LP, Appellee. Nos. 2D20-1940, 2D20-2239 CONSOLIDATED April 6, 2022 Appeal from the Circuit Court for Lee County; Joseph C. Fuller, Jr., Judge. Nicholas A. Shannin of Shannin Law Firm, P.A., Orlando and Brian M. Davis of Trial Pro. P.A., Naples, for Appellant. Tricia J. Duthiers of Liebler, Gonzalez & Portuondo, Miami, for Appellee. ATKINSON, Judge. In this consolidated appeal, Joleen Greeley appeals the final judgment in favor of Wal-Mart Stores East, LP (Walmart), in the underlying slip-and-fall personal injury action and the final judgment for costs. She argues that the trial court erred by striking her affidavit that revealed a genuine issue of material fact, precluding summary judgment. We agree and reverse the trial court's final summary judgment and remand for further proceedings. Because the trial court erred by granting summary judgment, we also reverse the final judgment awarding costs. Ms. Greeley filed a complaint against Walmart, asserting one count of negligence based on premises liability and alleging that on August 17, 2017, she had slipped and fallen on a small puddle of clear liquid while shopping at a Walmart store. As a result of the fall, Ms. Greeley injured her left knee and back. Although no one witnessed the fall, the incident was recorded on a surveillance video. Ms. Greeley also took pictures of her knee immediately after the fall because it began to swell. Walmart employees responded to the incident, providing Ms. Greeley with a motorized scooter with which to pull herself up. Before leaving the store, Ms. Greeley filled out an incident report provided by Walmart, but she refused emergency medical care. Walmart took Ms. Greeley's deposition. Ms. Greeley testified that it was sunny and warm on the day of the incident and there 2 were no warning signs posted near where she slipped. She described the puddle as softball-sized and explained that she believed it was water because "it was clear." She said it had no odor, and when asked if the water had any color, she described it as "clearish." She was not asked any questions about the shape of the puddle or the condition of the floor around the puddle. After Ms. Greeley described the circumstances of the incident and the injuries she sustained, the following exchange occurred: Q. [by Walmart's counsel:] Do you have any reason to believe that Walmart knew the water was on the floor before you slipped? A. [by Ms. Greeley:] Yes. Q. Why do you think that? A. When the manager came over, she looked directly at me and said, I thought we fixed this. Q. Okay. And she's referring to what? A. The leak from the ceiling. I don't know if it was the ceiling itself, the AC unit or any of the other possible things above us. Q. But on that particular date, do you think they knew the water was on the floor before you fell? A. I do not know. Q. Do you have any reason to believe that they did? 3 A. I do not know. Q. So I'm not asking if you know. I'm asking if you have any reason to believe that they knew on that day that there was water on the floor before you fell. A. I don't know if they—can you redo the question one more time? Q. Yeah, I'm asking you if you have any reason to believe that on that day, they knew—if Walmart knew that there was water on the floor before you fell. A. I would have no clue if they . . . Q. But do you have any reason to believe that they did? A. No, I don't know. Walmart filed a motion for summary judgment, arguing that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law because it was undisputed that Walmart did not have actual or constructive notice of the transitory substance on the floor. In response, Ms. Greeley filed an affidavit in which she explained that if she had been asked about the condition of the floor surrounding the puddle, she would have testified that the puddle had footprints and shopping cart tracks starting at its edges as if people had walked through it. She also 4 explained that she would have testified that the puddle was partially drying around the edges as if it had been the middle of a larger puddle. Walmart filed a motion to strike the affidavit as a sham, arguing, among other things, that Ms. Greeley's statements contradicted her deposition testimony. After a hearing, the trial court granted Walmart's motion to strike and motion for summary judgment. Appellate courts review orders granting summary judgment de novo. Acevedo v. R.J. Reynolds Tobacco Co., 318 So. 3d 593, 593 (Fla. 3d DCA 2021). Although an award of costs is generally reviewed for an abuse of discretion, "to the extent the issues involve statutory construction or the legal determination of whether and what costs may be awarded at all, [the] standard of review is de novo." Cornfeld v. Plaza of the Ams. Club, Inc., 306 So. 3d 1136, 1139 (Fla. 3d DCA 2020). "A party moving for summary judgment bears 'the burden of proving the absence of a genuine issue of material fact.' " Norman v. DCI Biologicals Dunedin, LLC, 301 So. 3d 425, 428 (Fla. 2d DCA 2020) (quoting Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966)). 5 Pursuant to the version of the Florida Rule of Civil Procedure 1.510 applicable here,1 "[i]f the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper." Id. (quoting Competelli v. City of Belleair Bluffs, 113 So. 3d 92, 92–93 (Fla. 2d DCA 2013)). "A party may not file his or her own affidavit, or that of another, baldly repudiating his or her own deposition testimony to avoid the entry of a summary judgment." Ouellette v. Patel, 967 So. 2d 1078, 1082 (Fla. 2d DCA 2007). However, "[a] party may file a subsequent affidavit for the purpose of explaining testimony given at a prior deposition, provided the explanation is credible and not inconsistent with the previous sworn testimony, even though it creates a jury issue on the opponent's motion for summary 1 The Florida Supreme Court recently adopted the federal summary judgment standard. See In re Amends. to Fla. R. Civ. P. 1.510, 309 So. 3d 192 (Fla. 2020); see also In re Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d 72 (Fla. 2021). "However, the rule amendment does not apply to this case because the rule amendment became effective on May 1, 2021, and is prospective." Advanta Ira Servs., LLC v. FTE Props., LLC, 327 So. 3d 416, 416 n.2 (Fla. 2d DCA 2021); see also Wilsonart, LLC v. Lopez, 308 So. 3d 961, 964 (Fla. 2020) (noting that the new change to rule 1.510 is "a prospective rule amendment"). 6 judgment." Id. at 1082–83 (alteration in original) (quoting Jordan v. State Farm Ins. Co., 515 So. 2d 1317, 1319 (Fla. 2d DCA 1987)). Ms. Greeley testified during her deposition to certain characteristics—size, clarity, and odor—of the liquid that caused her to slip and fall, but she was not asked any questions about and made no mention of the shape of the puddle or the condition of the floor around the puddle. In her affidavit, she stated that there were several footprints close to the puddle as if others had stepped into it before she fell, that there were also cart tracks coming out of both sides of the puddle as if people pushed their shopping carts through the puddle, and that the floor next to the puddle was drying, making it appear that the wet part she had slipped on was the center of what had been a larger puddle. While her affidavit is conspicuously more detailed on the subject of the puddle's characteristics than was her deposition testimony, this alone does not justify striking the affidavit. In Williams v. Ryta Food Corp., 301 So. 3d 339, 341–42 (Fla. 3d DCA 2020), the Third District encountered a similar scenario in which the trial court had granted summary judgment in the defendant's favor because the issue of fact regarding whether the defendant had 7 notice of the transitory substance on which the plaintiff slipped was based on information provided in the plaintiff's affidavit but not included in her prior deposition testimony. Although she had testified to the origin and the clarity of the pooled liquid, the plaintiff had not been asked questions about or commented on the shape or the length of the transitory substance. Id. at 341. In her affidavit, she "describ[ed] the 'puddle of water' as 'very long,' and disclos[ed] the existence of 'several track marks or footprints going in both directions.' " Id. The court concluded that the statements in the plaintiff's affidavit did not contradict or repudiate her deposition testimony and accordingly reversed the order granting summary judgment. Id. at 341–43; cf. Ouellette, 967 So. 2d at 1083 (concluding that because an affiant opined in his affidavit about something "[n]o one had asked [him] at his deposition," "the views expressed . . . in his affidavit were not inconsistent with his prior deposition testimony" but instead "merely explained and elaborated on the deposition testimony in light of additional facts . . . [and] did not 'baldly repudiate' his prior deposition testimony"). Similarly, while the averments in Ms. Greely's affidavit augment her case, they 8 do not contradict or repudiate her deposition testimony and therefore cannot be ignored or stricken by the court on that basis. Walmart also argues that Ms. Greeley's affidavit baldly repudiates her deposition testimony when she answered, "No, I don't know," to Walmart's questions about whether she had reason to believe that Walmart knew there had been water on the floor before she fell. However, earlier in her deposition, Ms. Greeley answered the same question in the affirmative and explained that the reason she believed "Walmart knew the water was on the floor" before she slipped was that the Walmart manager "looked directly at [her] and said, I thought we fixed this," referring to a "leak from the ceiling." At worst, Ms. Greeley's deposition testimony is internally inconsistent and contradictory, at one point stating unequivocally that she had reason to believe Walmart knew of the water before she slipped and at another point suggesting that she did not know of a reason. In context, however, Ms. Greeley's later statement was not a correction or attempt to recant her earlier testimony that she did have reason to believe that Walmart knew about the water. Rather, she provided the second answer after Walmart's counsel 9 asked a series of questions inviting her to speculate as to whether Walmart knew the water was on the floor before her fall—e.g., "do you think they knew the water was on the floor before you fell?" A fair reading of the transcript does not suggest that the nonlawyer deponent was contradicting herself as opposed to merely navigating the distinction between knowing Walmart actually knew about the condition of the floor and having reason to believe Walmart knew about the condition of the floor. And nothing indicates she would have presumed defense counsel's questions were intended to elicit whether she had reason to believe Walmart should have known. At any rate, Ms. Greeley's earlier deposition testimony that she did have reason to believe Walmart knew of the water before she slipped—"Yes"—and her stated reason—because the manager said, "I thought we fixed this"—are corroborative of, rather than contradictory to, the assertions in her affidavit that suggest Walmart should have known. Thus, Ms. Greeley's affidavit did not contradict her deposition testimony, much less baldly repudiate it, and the trial court erred by striking the affidavit. The trial court also erred by granting summary judgment in Walmart's favor because Walmart failed to demonstrate the absence 10 of a material fact regarding its constructive knowledge of the transitory substance. To succeed in an action for negligence, the plaintiff must demonstrate that the defendant owed her a legal duty, the defendant breached that duty, and the breach actually and proximately caused her damages. Norman, 301 So. 3d at 428. Business owners owe invitees a duty to "take ordinary and reasonable care to keep [the] premises reasonably safe for invitees; and . . . to warn of perils that were known or should have been known to the owner and of which the invitee could not discover." Id. (quoting Kenz v. Miami-Dade County, 116 So. 3d 461, 464 (Fla. 3d DCA 2013)). In negligence cases involving an alleged transitory substance, the plaintiff must prove that the business owner had actual or constructive knowledge of the transitory substance. § 768.0755, Fla. Stat. (2020). To prove constructive knowledge, the plaintiff must prove either "(a) [t]he 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) [t]he condition occurred with regularity and was therefore foreseeable." 11 Norman, 301 So. 3d at 429 (alterations in original) (quoting § 768.0755). Ms. Greeley's deposition testimony that the manager told her "I thought we fixed this," construed in the light most favorable to Ms. Greeley, suggests that the leak above the spot where Ms. Greeley fell had occurred in the past and Walmart employees might have had reason to know about the leak and respond to it. This alone creates a factual issue regarding Walmart's constructive knowledge of the transitory substance. Additionally, Ms. Greeley's statements in her affidavit that the puddle had footprints and track marks coming from either side and that it appeared to be partially drying, construed in the light most favorable to Ms. Greeley, could suggest that the puddle might have been there for such a length of time that, in the exercise of ordinary care, Walmart should have known about it. See Williams, 301 So. 3d at 342 ("Because the puddle was arguably both expansive and subject to detectable foot traffic preceding the fall, a factual issue as to constructive notice precluded the entry of summary judgment."). Because the trial court erred by entering final summary judgment in Walmart's favor, we reverse the judgment awarding 12 costs to Walmart. Cf. So. Nat'l Track Servs., Inc. v. Gilley, 152 So. 3d 13, 19 (Fla. 1st DCA 2014) ("[O]nce a final judgment is reversed and remanded by an appellate court, there can be no prevailing party for purposes of an award of prevailing party attorney's fees. Consequently, an award of attorney's fees and costs predicated on a reversed or vacated final judgment also must be reversed." (quoting Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999))). Reversed and remanded for further proceedings consistent with this opinion. KELLY and LUCAS, JJ., Concur. Opinion subject to revision prior to official publication. 13