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Linda McCarthy v. Broward College, et al., Case No. 4D13-3843 (4th DCA)

In McCarthy, the plaintiff filed a personal injury suit against the defendant, Broward College, after she slipped and fell on an unidentified liquid in an elevator at the college’s Coconut Creek campus in August, 2011. The trial court entered summary judgment in favor of the defendant, finding that no evidence existed demonstrating that the defendant had actual or constructive knowledge of the dangerous condition as required by Florida Statutes, Section 768.0755. The plaintiff appealed, arguing that Section 768.0755 does not apply to Broward College.

The Fourth DCA disagreed. The Fourth DCA ruled that Section 768.0755applies to public institutions of higher learning. The court applied the definition of “business establishment,” the term used in Section 768.0755, that was given in the Third DCA’s opinion in Publix Supermarkets, Inc. v. Santos – “a location where business is conducted, goods are made or stored or processed or where services are rendered.” The Fourth DCA further noted that Section 768.0755 has previously been applied to the Miami International Airport, a government-owned entity.

The Fourth DCA then ruled that the trial court appropriately entered summary judgment in favor of the defendant college. The court cited to various appellate opinions affirming summary judgments in favor of defendants in slip and fall cases where there was no evidence of how long the dangerous condition existed before the fall, and no evidence that the condition occurred with regularity in the area where the fall occurred. The Fourth DCA noted that no evidence had been presented as to what the liquid in the elevator was, how long it had been there, or whether anyone from the college had actual or constructive notice of its presence. The court additionally found that no evidence was presented demonstrating that the condition occurred with regularity and was therefore foreseeable.

The Fourth DCA acknowledged, however, that there is a line of cases holding that evidence that no inspection had been made during a particular time period prior to an accident may warrant an inference that the dangerous condition existed long enough so that the exercise of reasonable care would have resulted in discovery. The Fourth DCA noted one opinion – Lynch v. Target Stores – in which summary judgment was reversed because of evidence that no inspection had occurred within fifteen minutes prior to the fall. The Fourth DCA ruled in this case, however, that the fifteen minute time period in Lynch is not a per se rule. Rather, the time between inspections necessary to give rise to an inference that the dangerous condition existed sufficiently long enough that it would have been discovered in the exercise of reasonable care must be governed by a reasonableness standard, “giving due consideration to the size, nature, and inherent risks of the area in question.” The court found that the defendant college is a large expanse that cannot reasonably be inspected every fifteen minutes. The elevator in question had been cleaned approximately fifty minutes prior to the accident, which the court found was not a long enough period to warrant an inference of negligence.

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