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Case 6:12-cv-01561-GAP-KRS Document 34 Filed 09/20/13 Page 1 of 5 PageID 652









Case No: 6:12-cv-1561-Orl-31KRS


This matter comes before the Court without a hearing on the Motion for Summary

Judgment (Doc. 23) filed by the Defendant, Logan’s Roadhouse, Inc., (“Logan’s”), the response in

opposition (Doc. 30) filed by the Plaintiff, Michael Vallot (“Mr. Vallot”), and the reply (Doc. 33)

filed by Logan’s.



Mr. Vallot, who was originally represented by counsel but now appears pro se, alleged that

he slipped and fell, hitting his head and injuring his back while dining at a Logan’s Roadhouse

restaurant in Sanford, Florida. (Doc. 2). The discovery period in this case closed in July 15, 2013.

(Doc. 12 at 1). Logan’s seeks summary judgment on the grounds that no evidence demonstrates

Logan’s had actual or constructive notice of a transitory foreign substance—in this case an alleged

greasy or slippery substance on the floor.


Legal Standard

A party is entitled to summary judgment when the party can show that there is no genuine

issue as to any material fact. Fed.R.Civ.P. 56. Which facts are material depends on the substantive

Case 6:12-cv-01561-GAP-KRS Document 34 Filed 09/20/13 Page 2 of 5 PageID 653

law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving

party bears the burden of showing that no genuine issue of material fact exists. Clark v. Coats &

Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991).

When a party moving for summary judgment points out an absence of evidence on a

dispositive issue for which the nonmoving party bears the burden of proof at trial, the nonmoving

party must “go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to

interrogatories, and admissions on file, designate specific facts showing that there is a genuine

issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986) (internal quotations and

citation omitted). Thereafter, summary judgment is mandated against the nonmoving party who

fails to make a showing sufficient to establish a genuine issue of fact for trial. Id. at 322, 324-25.

The party opposing a motion for summary judgment must rely on more than conclusory

statements or allegations unsupported by facts. Evers v. Gen. Motors Corp., 770 F.2d 984, 986

(11th Cir. 1985) (“conclusory allegations without specific supporting facts have no probative


III. Analysis

Whether Florida Statute § 768.0755 (2010) Applies Retroactively

The parties agree that this dispute is governed by the Florida statute on transitory foreign

objects in premises liability actions (“slip and fall actions”). (See Docs. 23, 30, 33). The transitory

object in question is alleged to be a greasy or slippery substance under peanut debris on the floor

of the Logan’s restaurant. (Doc. 30 at 8; Doc. 30-1 ¶ 5-6). There is disagreement, however, about

whether Florida Statute § 768.0710 (2002) or Florida Statute § 768.0755 (2010) applies.1 These

1 Mr. Vallot also appears to rely, to some extent, on the standard set out in Owens v. Publix
Supermarkets, Inc., 802 So. 2d 315 (Fla. 2001). (See Doc. 30 at 6-7, 9 (comparing this case to
Owens and, towards the end of his argument, seemingly invoking the reasoning in Owens)).
However, he acknowledges that Owens was displaced by the legislature. (Id. at 7). It is, therefore,

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statutes govern which parties bear what burdens of proof in slip and fall actions—§ 768.0710 does

not expressly require the defendant to have actual or constructive knowledge of the foreign object

or substance, while § 768.0755 does. Section 768.0710 was repealed on June 30, 2010 and

§ 768.0755 became effective on July 1, 2010. Mr. Vallot’s fall allegedly occurred on or around

March 28, 2010. Thus, § 768.0710 governs the case unless § 768.0755 is retroactive.

On April 24, 2013 Florida’s Third District Court of Appeal decided Kenz v. Miami-Dade

Cnty., 116 So. 3d 461, 464 (Fla. Dist. Ct. App. 2013), which held that Florida Statute § 768.0755

is procedural and therefore retroactive. Plaintiff cites federal cases predating Kenz for the

proposition that the § 768.0755 is not retroactive. (Doc. 30 at 9 (citing Mills v. Target Corp., No.

5:10-cv-263-Oc-32TEM, 2010 WL 4646701 (M.D. Fla. 2010) and Kelso v. Big Lots Stores, Inc.,

8:09-CV-01286, 2010 WL 2889882 (M.D. Fla. July 21, 2010)). Prior to Kenz, federal courts

applying Florida law split on whether § 768.0755 is retroactive. See, e.g., Yates v. Wal-Mart

Stores, Inc., No. 5:10-cv-226, 2010 WL 4318795, at *1 (N.D. Fla. Oct. 27, 2010) (finding it

applies retroactively) with Mills, No. 5:10-cv-263-Oc-32TEM, 2010 WL 4646701, at *2 (finding

it applies only prospectively). However, in the absence of a ruling by the Florida Supreme Court,

federal courts applying Florida law must follow the rulings of Florida’s district courts of appeal

unless there is indication the Florida Supreme Court would not follow a district court’s decision.

See Geary Dist. Co., Inc. v. All Brand Importers, 931 F.2d 1431, 1434 (11th Cir.1991), cert.

denied, 502 U.S. 1074 (1992). As such, this Court must follow Kenz and apply § 768.0755


not necessary to discuss whether Owens applies here.

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Application of Florida Statute § 768.0755 (2010) In this Case

Logan’s has established a lack of evidence regarding its actual or constructive notice of the

slippery substance and Mr. Vallot’s submissions in opposition have not raised a genuine issue of

material fact. As such, under Federal Rule of Civil Procedure 56 and Florida Statute § 768.0755,

Logan’s is entitled to summary judgment.

While Mr. Vallot has offered various facts indicating the presence of a slippery substance,

nothing in the affidavits he submitted or his deposition testimony indicates that anyone informed

Logan’s of the greasy or slippery substance prior to his fall. Neither has there been any factual

submission indicating the slippery substance had been on the floor for any duration of time, that

slippery substances are on the restaurant floor with regularity, or that Logan’s caused the

substance to be there. In opposition to summary judgment Mr. Vallot asserts that “[t]he conditions

where the Plaintiff slipped existed long enough for the management to have rendered [sic] to the

problem by cleaning it up from the outset . . . .” (Doc. 30 at 8). However, this allegation is not

supported by any fact. Mr. Vallot admits that he does not know if the greasy substance had been

on the floor even one minute before he fell or if any Logan’s employee knew of it. (Doc. 30-3 at


In his deposition Mr. Vallot testified that he did not know: (1) if he saw the greasy

substance (Doc. 30-3 at 59:4-8); (2) how the substance got on the floor (Id. at 71:20-22); (3) what

caused the substance to be on the floor (Id. at 71:25-72:2); (4) if the substance was there one

minute before he fell (Id. at 72:16-19); (5) whether Logan’s or any employees knew that the

substance was on the floor (Id. at 72:21-24); and (6) who spilled the substance or how it got

spilled (Id. at 73:3-7). Neither his depositions nor his affidavits in opposition to summary

judgment demonstrate that Logan’s had actual or constructive notice of the slippery substance. As

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such, summary judgment is appropriate. § 768.0755 Fla. Stat.; see also Delgado v. Laundromax,

Inc., 65 So. 3d 1087 (Fla. Dist. Ct. App. 2011) (applying earlier law, § 768.0710 Fla. Stat., but

finding actual or constructive notice necessary); Oken ex rel. J.O. v. CBOCS, Inc., 8:12-CV-782-

T-33MAP, 2013 WL 2154848 (M.D. Fla. May 17, 2013) (finding summary judgment appropriate

under either § 768.0710 Fla. Stat. or § 768.0755 Fla. Stat. and stating “nothing in the record to

suggest that Cracker Barrel had actual or constructive notice of the water on the floor”); Gordon v.

Target Corp., 07-80412-CIV, 2008 WL 2557509 (S.D. Fla. June 23, 2008) (“The mere fact that

one slips and falls on a floor does not constitute evidence of negligence, nor does the fact that a

floor was slick make the owner liable.”).

IV. Conclusion

In consideration of the foregoing, it is hereby

ORDERED that the Motion for Summary Judgment (Doc. 23) is GRANTED. The Clerk is

directed to enter judgment in favor of the Defendant and against the Plaintiff and, thereafter, to

close the file.

DONE and ORDERED in Chambers, Orlando, Florida on September 20, 2013.

Copies furnished to:

Counsel of Record
Unrepresented Party

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