AUSBURN

v.

WESLEY CHAPEL-T, LLC

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

CHARLES AUSBURN, Appellant,

V.

WESLEY CHAPEL-T, LLC, Appellee.

No. 2D2025-0516

September 25, 2026

Appeal from the Circuit Court for Pasco County; Susan Barthle, Judge.

Brian J. Lee of Morgan & Morgan, Jacksonville, for Appellant.

Marie A. Borland, Christopher S. Branton, and Chad E. Burgess of Hill, Ward & Henderson, P.A., Tampa, for Appellee.

ATKINSON, Judge.

In this slip and fall case, Charles Ausburn appeals the trial court's final summary judgment in favor of Wesley Chapel-T, LLC (Wesley Chapel Toyota). Mr. Ausburn had filed a two-count amended complaint alleging both premises liability and negligence under the non-delegable duty doctrine. On appeal, Mr. Ausburn argues that summary judgment was improper because there was a genuine dispute as to material facts regarding the dealership's constructive knowledge of the dangerous condition that caused his fall. The trial court found that the record evidence presented by Mr. Ausburn did not show actual or constructive knowledge of the dangerous condition due to the condition occurring with regularity or existing for such a length of time that Wesley Chapel Toyota should have known of the condition, see § 768.0755(1)(a)–(b), Fla. Stat. (2020), and that there were no genuine issues of material fact precluding summary judgment. We agree, and we affirm the decision of the trial court.

Background

On the rainy afternoon of May 18, 2020, Mr. Ausburn slipped and fell on an unidentified substance at Wesley Chapel Toyota. Mr. Ausburn—an employee of Mr. Auto Glass at the time—was at the dealership to complete a work order for a customer who was getting his vehicle serviced. Mr. Ausburn had "been to that dealership and several other dealerships in the areas many, many times." When he arrived at Wesley Chapel Toyota on the day in question, he went to the service area and, due to the rain, asked if there was "anywhere they could put [him] under cover so [he] c[ould] take care of this vehicle for their customer." The shop manager walked Mr. Ausburn into the dealership's repair shop, pointing out an area where Mr. Ausburn could work on the customer's vehicle. In his deposition testimony, Mr. Ausburn described the circumstances of his fall:

Then we walked back out. The customer had already dropped his vehicle off at that time. And the service manager told me to follow him in. So he drove the customer's vehicle inside and put it in the bay and I T'd off in the front of them like I do with all my vehicles. We T off in the front of them. And as soon as I stepped out, as soon as both my feet hit the floor, they just went out from underneath me. I tried to grab ahold of the door handle, and I missed to try to catch myself from hitting the ground. I missed the door handle, and that's when I fell all the way to the ground.

The repair shop where Mr. Ausburn fell had multiple service bays, and although he could not remember being in that specific service bay while it was raining, he testified that he had "been there inside bays during rainy times." While his clothes were "a little wet" when he got up after the fall, Mr. Ausburn "couldn't tell you if there was oil, water, or what." He "c[ould]n't say what was on the floor" that he slipped on, he "never noticed any sort of puddling" when he stepped outside the vehicle door, and he "couldn't say yes or no" as to whether he could have slipped on rainwater that had come off of the vehicle that he pulled into the service area himself—although he agreed that "rain would come off the running boards" of the vehicle. Mr. Ausburn testified that he "didn't pay attention to see if anything was on the ground or not" when he stepped out of the vehicle and that if there was something on the ground, he didn't know how long it had been there. He did, however, note that when he "drove in, there was [sic], of course, tire tracks and water on the floor or something on the floor that was wet on the floor, but [he] d[id]n't know what substance."

Several Wesley Chapel Toyota employees provided deposition testimony that the floors of the service area were slip-resistant, grated, and designed at an angle to allow water to flow into the grates. Technicians were responsible for mopping and cleaning their bays before and at the end of their shifts, and there were "protocols in place" to deal with oil spills, wherein everyone in the vicinity would stop working while a technician cleaned the spill. As for water, "if water was excessive" on rainy days, they would push the water into the grates. The corporate representative testified that there was no policy for floor inspection, but there was a "common sense approach where you spill something, some type of fluid or something, you would clean it up." The corporate representative testified that the "common sense approach" was not used for water¹ because of the type of floors in the shop, which were designed to be slip-resistant and angled for drainage into grates. The employees testified that they were unaware of or could not recall any slip-and-falls at the shop. Regarding the regularity of liquid on the floors of the shop, one employee testified that he did not see liquid on the floors very often but admitted that on rainy days he saw water on the floors of the shop. Another employee testified that he did not regularly see fluids on the ground, even on rainy days.

Mr. Ausburn filed suit against Wesley Chapel Toyota based on the dealership's purported negligence in maintaining its shop and its failure to warn him of the dangerous condition on its premises, which was characterized in his amended complaint as the "wet, slippery ground of the service bay." Wesley Chapel Toyota moved for summary judgment, arguing that Mr. Ausburn could show neither actual nor constructive knowledge of the alleged dangerous condition, that Wesley Chapel Toyota maintained its premises in a reasonably safe condition, and that it did not owe Mr. Ausburn a duty to warn because the condition was open and obvious. Following a hearing, the trial court granted Wesley Chapel Toyota's motion for summary judgment. In its order, the trial court found that

the record evidence presented by [Mr. Ausburn] does not support [Mr. Ausburn's] claim that [Wesley Chapel Toyota] had actual or constructive knowledge of a dangerous condition because there was no evidence presented to show that [Mr. Ausburn's] fall was foreseeable because it occurred with regularity or a dangerous condition existed for such a length of time that [Wesley Chapel Toyota] should have known about it.

DISCUSSION

An order granting summary judgment is reviewed de novo. VBK Santoshi, LLC v. Chicago Title Ins., 370 So. 3d 680, 683 (Fla. 2d DCA 2023) (citing Greeley v. Wal-Mart Stores E., LP, 337 So. 3d 478, 480 (Fla. 2d DCA 2022)). "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fla. R. Civ. P. 1.510(a). "[T]he correct test for the existence of a genuine factual dispute is whether 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' " In re Amends. to Fla. Rule of Civ. Proc. 1.510, 317 So. 3d 72, 75 (Fla. 2021) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Thus, "[a] movant is entitled to summary judgment if no reasonable finder of fact could return a verdict for the nonmoving party." G&G In-Between Bridge Club Corp. v. Palm Plaza Assocs., Ltd., 356 So. 3d 292, 297 (Fla. 2d DCA 2023) (citing Anderson, 477 U.S. at 248). "We view the facts in the light most favorable to [the nonmoving party] and may not weigh the evidence or make credibility determinations." Lassiter v. Citizens Prop. Ins., 386 So. 3d 646, 651 (Fla. 2d DCA 2024) (alteration in original) (quoting G & G In-Between Bridge Club Corp., 356 So. 3d at 297). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007).

A landowner owes two duties to a business invitee: (1) to use reasonable care in maintaining its premises in a reasonably safe condition; and (2) to give the invitee warning of concealed perils that are or should be known to the landowner and that are unknown to the invitee and cannot be discovered through the exercise of due care.

St. Joseph's Hosp. v. Cowart, 891 So. 2d 1039, 1040 (Fla. 2d DCA 2004) (first citing Knight v. Waltman, 774 So. 2d 731, 733 (Fla. 2d DCA 2000); and then citing Emmons v. Baptist Hosp., 478 So. 2d 440, 442 (Fla. 1st DCA 1985)). The parties do not contest that a business owner such as Wesley Chapel Toyota owes a duty of care to an invitee. To establish a breach of a business establishment's duty of care in a cause of action involving a slip and fall,

the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that:

(a) The 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) The condition occurred with regularity and was therefore foreseeable.

§ 768.0755(1)(a)–(b); see also Encarnacion v. Lifemark Hosps. of Fla., 211 So. 3d 275, 278 (Fla. 3d DCA 2017) ("[W]here a business invitee slips and falls on a 'transitory substance' in a business establishment as occurred here, proof of the breach element of the claim against an owner of the establishment is statutorily constrained by section 768.0755 of the Florida Statutes (2013).").

Based on undisputed record evidence, Mr. Ausburn has not demonstrated Wesley Chapel Toyota's constructive knowledge of the dangerous condition under either prong of the statute.² As to "[t]he dangerous condition exist[ing] for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition," see § 768.0755(1)(a), it is undisputed that Mr. Ausburn cannot identify the substance upon which he slipped. Per his deposition testimony, he did not know if he slipped on "oil, water, or what." He also testified that he did not look down when he fully stepped out of the vehicle, and so he did not know if there was "any sort of puddling" in the spot where his slip and fall occurred. Put simply, Mr. Ausburn cannot demonstrate Wesley Chapel Toyota's constructive knowledge of the substance that caused his fall because he does not know what caused his fall in the first place. See Publix Super Mkts., Inc. v. Schmidt, 509 So. 2d 977, 978 (Fla. 4th DCA 1987) (explaining "that there was no proof of either actual or constructive notice" in a slip and fall where "[t]he plaintiff did not know what caused her to slip," she provided testimony that "she saw nothing, but she thought she had slipped on grease because of the way she fell," and she "noticed a greasy stain on her skirt").

Because it is uncontested that Mr. Ausburn does not know what liquid caused him to slip and there is no description of the liquid, there is no way to know if the liquid had "existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition." See § 768.0755(1)(a). Indeed, Mr. Ausburn admitted as much during his deposition. When asked, "But if there was something on the ground, you don't know how long it had been there?"

Mr. Ausburn responded, "No, sir." While Mr. Ausburn did notice "tire tracks and water on the floor or something on the floor that was wet on the floor" when he drove into the service area, he has provided no such description of the substance in which he slipped as having tracks, dirt, or any evidence of the liquid having been present for any particular length of time long enough that an employee should have spotted it. See Norman v. DCI Biologicals Dunedin, LLC, 301 So. 3d 425, 430 (Fla. 2d DCA 2020) ("Other evidence such as 'footprints, prior track marks, changes in consistency, [or] drying of the liquid' have also 'tend[ed] to show that the liquid was on the floor for an amount of time sufficient to impute constructive notice.' " (alterations in original) (quoting Palavicini v. Wal-Mart Stores E., LP, 787 F. App'x 1007, 1012 (11th Cir. 2019))); Encarnacion, 211 So. 3d at 278 (noting that a plaintiff's testimony describing the condition of the liquid in which she slipped as "oily," "dirty," and "dark" was not enough alone to create a jury issue, and that, "[f]or such testimony to create a jury issue, the testimony must be accompanied by a 'plus,' namely some additional fact or facts from which a jury can reasonably conclude that the substance was on the floor long enough to have become discolored without assuming other facts"); cf. Mashni v. Lasalle Partners Mgmt. Ltd., 842 So. 2d 1035, 1037 (Fla. 4th DCA 2003) (concluding that "the issue of constructive notice should have been decided by the jury" when the appellant had "testified that after he slipped, he noticed the water was dirty," which could "create an inference that it was on the floor for a period of time sufficient to create constructive notice"). And the presence of track marks elsewhere in the shop does not give rise to a jury question when those track marks were not located in the location where Mr. Ausburn slipped. Cf. Cisneros v. Costco Wholesale Corp., 754 So. 2d 819, 820 (Fla. 3d DCA 2000) (holding that there were genuine issues of material fact which should have been decided by a jury regarding Costco Wholesale Corp.'s alleged constructive notice of a dangerous condition when, after the plaintiff fell, "she observed a line of something through which a few wheel tracks and several footprints had been made"); Winn-Dixie Stores, Inc. v. Guenther, 395 So. 2d 244, 246 (Fla. 3d DCA 1981) ("Here, testimony that the liquid was dirty and scuffed and had several tracks running through it was, in our opinion, adequate to impute constructive notice of the hazardous condition to the store manager.").

Mr. Ausburn argues in part that "circumstantial evidence of a business owner's neglect in inspecting its premises may establish constructive knowledge," citing to Garcia v. Wal-Mart Stores East, L.P., No. 6:14-CV-255-ORL, 2015 WL 898582, at *3 (M.D. Fla. Mar. 3, 2015). He argues that Wesley Chapel Toyota lacks policies and procedures to deal with rain in the shop and did not train its employees to minimize slip and fall risks to invitees caused by rainwater. The record, however, reflects that Wesley Chapel Toyota's employees were expected to address any mess that was spotted and to keep their work areas clean and that the floors were designed to be slip-resistant and to drain away water. While there was no written policy requiring set inspections for spills at regular intervals, the employees all testified to a culture where they were expected to be on the lookout for spills and to clean up after themselves—a reasonable policy in a large, open service bay, where something like an oil spill could happen unexpectedly. Mr. Ausburn has provided no evidence that anyone in the service bay failed to follow what Wesley Chapel Toyota's corporate representative described as the "common sense approach where [if] you spill something, some type of fluid or something, you would clean it up." Moreover, Mr. Ausburn has failed to show that in the exercise of "ordinary care," Wesley Chapel Toyota "should have known of the [dangerous] condition" because of the length of time the condition was in existence. See § 768.0755(1)(a). The condition itself was unknown in form and in duration, as admitted by Mr. Ausburn himself. Again, we note that Mr. Ausburn cannot show the existence of the unidentified dangerous condition for any length of time, and his argument regarding constructive notice under section 768.0755(1)(a) is therefore unavailing. See Oliver v. Winn-Dixie Stores, Inc., 291 So. 3d 126, 129 (Fla. 4th DCA 2020) (concluding that there was no constructive knowledge of a crushed grape or surrounding liquid on the floor pursuant to a section 768.0755 analysis when "Winn-Dixie trained the employee to 'always be on the lookout' for liquid on the floor and to 'immediately address' hazardous conditions," "the testimony showed that no wheel tracks were present" through the spilled liquid, and neither the grape nor surrounding liquid was seen by the defendant before falling, the customer in the area when the defendant fell, the defendant's daughter, or "the employee who passed by the area four times in the thirty-minute period before [the defendant] fell").

Mr. Ausburn also argues that constructive notice can be shown "even if there are competing inferences from the parties on how a particular substance got on a floor, and how long the substance was there," but this argument relies on impermissible inference stacking. Yes, it was raining on the day he slipped and fell; yes, employees unsurprisingly testified that, in general, rainwater could be seen on the floors of the repair shop on rainy days; yes, wet vehicles were being driven into the repair shop; and yes, it was theoretically possible that an employee allowed an excessive amount of rainwater to accumulate beneath a wet vehicle and then failed to address the puddle when the vehicle was moved, and that this series of events caused Mr. Ausburn to slip and fall. But Mr. Ausburn never saw puddling and does not even know if he slipped on water.

In Tallahassee Medical Center, Inc. v. Kemp, 324 So. 3d 14 (Fla. 1st DCA 2021), the plaintiff attempted to demonstrate through circumstantial evidence a medical center's constructive knowledge of a dangerous condition that allegedly caused a slip and fall. The plaintiff— who, like Mr. Ausburn, "did not see a wet substance on the floor before or after her fall"—relied upon a video recording that showed "a housekeeping cart that was wheeled over the spot that she fell" and "employees moving trash bags, linen bags, and trays into the utility room next to where she fell," arguing "that something delivered to the utility room by a Medical Center employee could have caused a wet substance to be deposited on the floor causing her to fall." Id. at 16. Observing that the video "show[ed] no such leaks, spills, drops, or other deposits of a liquid substance onto the floor" and that the plaintiff herself "saw nothing drop from the tray being carried by the employee she saw immediately before her fall," the First District held that "the jury would have had to rely on improperly stacked inferences to find the Medical Center negligent." Id. at 16–17.

This is not an instance where the main inference underlying the plaintiff's case—that plaintiff slipped on an employee-caused wet spot—can be established to the exclusion of other reasonable inferences. Indeed, it is just as plausible and reasonable to infer that no liquid was on the floor and that the wetness Kemp perceived came from her own flip-flops and clothes after walking into the hospital out of a rainstorm. Nor can additional inferences, that are questionable in their own right, be rightfully stacked here; speculations such as: that the bags, trays, and cart shown on the video contained liquids; that liquids leaked, spilled, or seeped onto the floor from one of these items due to employee negligence; and that hospital employees failed to wipe up the liquid on the floor in the busy hallway before Kemp slipped, even though they were trained to look for and immediately wipe up liquids found on the floor. In fact, there is no evidence here that the bags, carts, and trays from the video carried any liquids[;] ... [that] even if the bags had carried wet stuff, that they leaked, seeped through, or otherwise deposited wet stuff on the floor[;] [or] that any of the carts or trays were mishandled and spilled liquids onto the floor. In fact, no substance was seen on the floor before Kemp's fall. Id. at 17.

And even if Mr. Ausburn did slip on rainwater—one purely speculative inference upon which other unsubstantiated inferences are impermissibly stacked—it is just as plausible that the rainwater came from the running boards of the vehicle he pulled into the service bay. See id. ("[I]t is just as plausible and reasonable to infer that the wetness came from her own flip-flops and clothes after walking into the hospital out of a rainstorm."). As Wesley Chapel Toyota argues, Mr. Ausburn cannot show constructive notice through competing inferences when there is no record evidence supporting his claim that in this instance water was on the floor where he slipped for any length of time. See Est. of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So. 2d 1272, 1274 (Fla. 2d DCA 2006) ("[I]f a party to a civil action depends upon the inferences to be drawn from circumstantial evidence as proof of one fact, it cannot construct a further inference upon the initial inference in order to establish a further fact unless it can be found that the original, basic inference was established to the exclusion of all other reasonable inferences." (quoting Nielsen v. City of Sarasota, 117 So. 2d 731, 733 (Fla. 1960))); Schmidt, 509 So. 2d at 978 ("The jury would have had to build inferences on top of inferences to conclude that a dinner tray had been overfilled at the delicatessen,

that drops of gravy spilled when the tray was raised over the counter to a Publix employee, and that this caused plaintiff to slip.").

As to "[t]he condition occur[ing] with regularity" and thus being "foreseeable"—the second method of proving constructive knowledge under section 768.0755—to suggest a "condition occur[ing] with regularity" contains as an essential element the presence of a condition. That is to say, a condition cannot be said to have "occurred with regularity" if the condition cannot be identified. See § 768.0755(1)(b). Here, the condition is an unknown entity. Mr. Ausburn has affirmatively testified that he does not know what liquid caused his fall, and thus he cannot argue that the condition was a regular occurrence.

Assuming for the sake of argument that Mr. Ausburn slipped on rainwater, he has not established that the condition was a "dangerous condition" that "occurred with regularity" as required by the plain language of the statute. See § 768.0755(1)(b). While various employees testified that the shop floor did get wet with rainwater on rainy days, the employees' testimony does not describe the rainwater in a manner suggesting it presented any danger, such as making the floor slippery as opposed to simply wet. That the regularity of rainwater was not a dangerous condition—even if it was a regular condition—is supported by uncontested record evidence showing a lack of slip and fall accidents at the dealership. Mr. Ausburn testified that as the dealership technician he had "been to that dealership and several other dealerships in the areas many, many times," and that he had no prior instances of slipping and falling at Wesley Chapel Toyota. Although he testified he could not remember being in that specific service bay during the rain, he testified that he had "been there inside bays during rainy times." And employees testified that they did not recall any slip and falls at the shop. To the contrary, numerous employees testified that the floors were slipresistant: one employee testified that were was an anti-slip additive in the paint on the ground; another employee testified that the floors were "slip resistant" and grated, with the floors "designed at an angle" that allowed water to "flow into it"; and a third employee testified that the floors were "beveled down to the drain," and that the floors of "the whole shop" were painted with "a gray paint with like a sand mixed into it." Section 768.0755(1) requires "actual or constructive knowledge of [a] dangerous condition" (not just any condition occurring with regularity), and as Mr. Ausburn put forth no evidence of a regularly occurring dangerous condition, he cannot show constructive knowledge under the statute. See § 768.0755(1) (emphasis added).

Affirmed.

BLACK and SMITH, JJ., Concur.

Opinion subject to revision prior to official publication.