Kitty Kincaid v. Walmart, Inc. and Jane Doe, Store Manager

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
KITTY KINCAID,
Appellant,
v.
WAL-MART, INC. and JANE DOE, STORE MANAGER,1
Appellees.
No. 4D2024-2245
[March 18, 2026]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian 	River 	County; 	Cynthia 	L. 	Cox, 	Judge; 	L.T. 	Case 	No.
312021CA000868.
Daniel R. Schwartz and Douglas F. Eaton of Eaton & Wolk, PL, Miami,
for appellant.
Jack R. Reiter and Sydney Feldman D’Angelo of GrayRobinson, P.A.,
Miami, for appellee Wal-Mart, Inc.
LOTT , J.
Kitty Kincaid slipped on a gel pack in an aisle near the meat department
of a Walmart, suffering injuries. 	She sued Walmart. 	The circuit court
granted summary judgment for Walmart.
Because no reasonable finder of fact could have found that Walmart
had either actual or constructive knowledge of the dangerous condition,
we affirm.2
1 Kincaid also sued “Jane Doe,” the store manager, but did not pursue the action
against her.
2 Kincaid argues, among other things, that the meat bunker was leaking water
and asserts Walmart’s employees were aware of the leak. 	This argument was
raised for the first time in her motion for rehearing, after summary judgment was
entered for Walmart, and is thus unpreserved. 	See, e.g., Buyer’s Choice Auto
Sales, LLC v. Palm Beach Motors, LLC, 391 So. 3d 463, 468 (Fla. 4th DCA 2024)

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I. 	BACKGROUND3
In early 2021, Kincaid was shopping in a Walmart meat department
when she slid forward while walking in the aisle alongside a refrigerated
meat bunker. 	She did not fall, but caught herself on the cart. 	After
regaining her balance, Kincaid noticed a “squashed” orange gel pack on
the floor in the aisle surrounded by a clear, jelly-like substance. 	Kincaid
saw other uncrushed gel packs “tucked under” the meat bunker. 	She
claimed the incident resulted in significant medical treatment, including
knee 	surgery, 	cervical 	spine 	fusion, 	lumbar 	fusion, 	and 	subsequent
lumbar surgery. 	Although Kincaid had visited this particular Walmart
store many times before, she had never seen “anything like” the gel packs
in the store.
Scott Garnish, a Walmart stocking coach at the Walmart store at the
time of the incident, testified that orange gel packs were typically used by
Walmart employees to absorb water from leaks or condensation and were
placed in noticeable chains. 	He explained that gel packs could rupture—
most commonly when stepped on by customers—and that a ruptured pack
would leave a slippery gel substance on the floor. 	Mr. Garnish did not
recall any ongoing leaks in the meat department, any prior slip-and-fall in
that department, or any specific knowledge of Kincaid’s incident.
Kincaid sued Walmart in December 2021, which included claims for
failure to maintain the premises and failure to warn of a hazardous
condition. 	Walmart moved for summary judgment in April 2024. 	The
circuit court granted the motion, finding no evidence that Walmart had
actual 	or 	constructive 	notice 	of 	the 	ruptured 	gel 	pack, 	emphasizing
Kincaid’s lack of evidence as to “how the ruptured gel bag got out of
position, or when it got there, or when it ruptured, or that the condition
had existed for such an extended period [of] time that Walmart would be
chargeable with constructive notice of the condition” and that generalized
testimony about potential various hazards was insufficient to create a
genuine 	issue 	of 	material 	fact 	regarding 	Walmart’s 	knowledge 	of 	the
alleged dangerous condition.
(“An argument raised for the first time in a motion for rehearing will not preserve
the argument for appellate review.”).
3 In considering a motion for summary judgment, “the inferences to be drawn
from the underlying facts must be viewed in the light most favorable to the party
opposing the motion.” 	Kiffer v. Ferreira Constr., Inc., 413 So. 3d 807, 810 (Fla.
4th DCA 2025) (quotation omitted) (cleaned up).

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This appeal follows.
II. 	STANDARD OF REVIEW
We review de novo an order granting summary judgment. 	See Patient
Depot, LLC v. Acadia Enters., Inc., 360 So. 3d 399, 406 (Fla. 4th DCA 2023);
Gromann v. Avatar Prop. & Cas. Ins. Co., 345 So. 3d 298, 300 (Fla. 4th
DCA 2022).
Florida Rule of Civil Procedure 1.510, as amended May 1, 2021, revised
Florida’s summary judgment rule to align with the federal summary
judgment standard. See In re Amends. to Fla. Rule of Civ. Proc. 1.510, 317
So. 3d 72, 75 (Fla. 2021). 	Our Supreme Court explained that Florida
would now follow the Celotex4 trilogy from the United States Supreme
Court. 	In re Amends. to Fla. Rule of Civ. Proc. 1.510, 317 So. 3d at 75.
This 	change 	was 	meant 	to 	“recognize 	the 	fundamental 	similarity
between 	the 	summary 	judgment 	standard 	and 	the 	directed 	verdict
standard.” Id. “Both standards focus on whether the evidence presents a
sufficient disagreement to require submission to a jury.” Id. (citations and
internal 	quotation 	marks 	omitted). 	“And 	under 	both 	standards, 	the
substantive evidentiary burden of proof that the respective parties must
meet at trial is the only touchstone that accurately measures whether a
genuine issue of material fact exists to be tried.” Id. (citations and internal
quotation 	marks 	omitted). 	Put 	differently, 	“[t]o 	survive 	summary
judgment, the nonmoving party bearing the ultimate burden of proof at
trial must come forward with evidence sufficient to withstand a directed
verdict motion.” 	Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004) (citation omitted).
Summary judgment is thus proper where “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).
To 	defeat 	summary 	judgment, 	then, 	there 	must 	be 	“some 	alleged
factual dispute between the parties” shown to be both “material” and
“genuine.” 	See Anderson, 477 U.S. at 248, 106 S. Ct. 2505.
A fact is “material” if it “might affect the outcome of the suit under the
4 Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L.Ed.2d 202
(1986); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106
S. Ct. 1348, 89 L. Ed. 2d 538 (1986).

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governing law” and 	thus “properly preclude[s] the entry 	of summary
judgment.” 	Anderson, 477 U.S. at 248. 	“Factual disputes that are
irrelevant or unnecessary will not be counted.” 	Id.
A dispute of fact is “genuine” “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id. “In Florida it will
no longer be plausible to maintain that the existence of any competent
evidence 	creating 	an 	issue 	of 	fact, 	however 	credible 	or 	incredible,
substantial or trivial, stops the inquiry and precludes summary judgment,
so long as the slightest doubt is raised.” 	See In re Amends. to Fla. R. Civ.
P. 1.510, 317 So. 3d at 76 (citation and internal quotation marks omitted).
“The mere existence of a scintilla of evidence in support of the plaintiff’s
position will be insufficient; there must be evidence on which the jury
could 	reasonably 	find 	for 	the 	plaintiff.” 	Anderson, 	477 	U.S. 	at 	252
(emphasis added). 	There must be more than “some metaphysical doubt
as to the material facts.” 	Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
Further, “a moving party that does not bear the burden of persuasion
at trial can obtain summary judgment without disproving the nonmovant’s
case.” 	In re Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d at 75. 	“[T]here is
‘no express or implied requirement . . . that the moving party support its
motion with affidavits or other similar materials negating the opponent’s
claim.’” 	In re Amends. to Fla. R. Civ. P. 1.510, 309 So. 3d 192, 193 (Fla.
2020) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Rather,
“the burden on the moving party may be discharged by ‘showing’—that is,
pointing out to the district court—that there is an absence of evidence to
support the nonmoving party’s case.” 	Id. (quoting Celotex, 477 U.S. at
325).
Thus, “[t]he moving party bears the initial burden to show the district
court, by reference to materials on file, that there are no genuine issues of
material fact that should be decided at trial.” Clark v. Coats & Clark, Inc.,
929 F.2d 604, 608 (11th Cir. 1991). 	Where, as is common in motions for
summary judgment, the moving party (often the defendant) does not bear
the burden of proof at trial, that “initial burden” is “not onerous.” 	In re
Amends. To Fla. R. Civ. P. 1.510, 317 So. 3d at 77 (quotations and citations
omitted). “Where the nonmovant bears the ultimate burden of persuasion
at trial on a particular issue, the requirements that Rule 56 imposes on
the moving party are not onerous. . . . The movant’s initial burden of
production in this circumstance is far from stringent and can be regularly
discharged with ease.” 	Id. (cleaned up) (citations and quotation marks
omitted).

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“Only when that [initial] burden has been met does the burden shift to
the non-moving party to demonstrate that there is indeed a material issue
of fact that precludes summary judgment.” 	Clark, 929 F.2d at 608.
Thus, where the movant clears the initial burden, it is ultimately the
burden of a non-moving party that bears the burden of proof at trial to
demonstrate that genuine issues of material fact exist, and that summary
judgment should not be granted. 	Accord Charles Alan Wright et al., 10A
Fed. Prac. & Proc. Civ. § 2727.2 (4th ed. 2025) (“If the summary-judgment
movant makes out a prima facie case that would entitle him to a judgment
as a matter of law if uncontroverted at trial, summary judgment will be
granted unless the opposing party offers some competent evidence that
could be presented at trial showing that there is a genuine dispute as to a
material fact. 	In this way the burden of producing evidence is shifted to
the party opposing the motion.”).
III. 	DISCUSSION
Section 768.0755, Florida Statutes (2020), governs liability for slip-
and-falls 	caused 	by 	transitory 	foreign 	substances 	in 	a 	business
establishment, and requires proof of actual or constructive knowledge of
the dangerous condition:
(1) If a person slips and falls on a transitory foreign substance
in a business establishment, 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, Fla. Stat. (2020).
Section 768.0755, enacted in 2010 to replace section 768.0710, differs
from its predecessor in two ways: (1) by requiring proof of actual or
constructive knowledge of the dangerous condition as an element of the
claim; and (2) by removing language regarding the owner’s negligent
maintenance, inspection, repair, warning, or mode of operation. Pembroke

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Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 424–26 (Fla. 4th DCA 2014).
Thus, absent actual or constructive knowledge of the dangerous condition,
section 768.0755 does not allow for liability “based solely on the business
establishment’s general failure to maintain the premises.” 	N. Lauderdale
Supermarket, Inc. v. Puentes, 332 So. 3d 526, 530 (Fla. 4th DCA 2021).
Thus, to survive summary judgment, Kincaid must point to record
evidence from which a reasonable trier of fact could find that Walmart or
its employees had either actual knowledge or constructive knowledge
(within the meaning of section 768.0755) of the ruptured gel pack that
caused her fall.
Actual Knowledge
“Actual knowledge” of a dangerous condition exists when the business
or one of its agents “knows of or creates the dangerous condition.” Dolgen
Corp, LLC v. Doty, 383 So. 3d 864, 867 (Fla. 5th DCA 2024) (citations
omitted); see also Barbour v. Brinker Fla., Inc., 801 So. 2d 953, 957 (Fla.
5th DCA 2001).
Here, Walmart easily carried its initial burden to demonstrate the
absence of a genuine dispute of material fact as to whether it had actual
knowledge. 	See In re Amends. To Fla. R. Civ. P. 1.150, 317 So. 3d at 77.
The burden accordingly shifted to Kincaid, who had the ultimate burden
of proof at trial, to point to record evidence from which a reasonable finder
of fact could determine that Walmart did have such knowledge.
Kincaid argues that a question of fact exists as to Walmart’s actual
knowledge of the dangerous condition created by the use of gel packs,
asserting that (1) employees knew they used gel packs to absorb water;
(2) the gel packs were known to rupture and leak a slippery substance;
and (3) employees ignored Walmart’s policy to place warning signs when
using gel packs and failed to monitor the area.
While record testimony showed that Walmart employees would typically
place gel packs in a row tucked on the underside of equipment to soak up
condensation, and that the gel packs could rupture if full or if stepped on,
these facts alone do not suggest actual knowledge. 	Actual knowledge
requires proof that an employee knew the specific dangerous condition
existed, not merely that an employee performed an action that could create
a hazard. 	See Whitlow v. Tallahassee Mem’l HealthCare, Inc., 421 So. 3d
729, at n* (Fla. 1st DCA 2023) (noting “[a]n employee could knowingly
push a stretcher and not necessarily know that he is leaving behind a
potentially hazardous condition”); see also Kozlowski v. Wal-Mart Stores

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East, LP, 2023 WL 4350567, at *8 (M.D. Fla. May 19, 2023) (“The business
owner’s knowledge that circumstances might create a foreseeable risk,
however, is not equivalent to actual knowledge of the existence of the
specific 	dangerous 	condition 	that 	led 	to 	the 	fall 	and 	therefore 	that
knowledge does not satisfy the actual knowledge requirement.” (quotation
mark and citation omitted)).
Kincaid did not point to evidence that Walmart or its employees, at the
time of Kincaid’s slip, knew of a ruptured gel pack in the aisle, or knew of
a slippery gel substance in the aisle, or had put it there. See, e.g., Whitlow,
421 So. 3d at 739 (affirming summary judgment for hospital in a slip-and-
fall 	case 	where 	plaintiff 	slipped 	on 	water 	after 	exiting 	an 	elevator,
explaining 	that 	though 	plaintiff 	proved 	“employees 	were 	pushing 	a
dripping stretcher off the elevator, [she] still needed to show that the
[hospital] employees knew that the stretcher was dripping,” which “she
failed to do”); Publix Super Markets, Inc. v. Bellaiche, 245 So. 3d 873, 876
(Fla. 3d DCA 2018) (holding defendant was entitled to a directed verdict
because “a reasonable jury could not have found that Publix had actual
knowledge of the water that caused [her] to slip and fall” where plaintiff’s
only evidence of actual knowledge was that plaintiff saw a man holding a
mop standing in front of her after she fell, but the only janitor on duty at
the time of the incident had not been using anything other than a broom
and dustpan, no one testified that the mop the janitor was holding was
wet, and the manager testified that his store used dry rayon mops to spot
mop its floors, not pre-soaked cotton mops); Hamideh v. K-Mart Corp., 648
So. 2d 824, 825 (Fla. 3d DCA 1995) (affirming summary judgment where
“[t]he fact that a store employee may have been stocking shelves with
shampoo bottles in the same aisle where the plaintiff slipped and fell on a
substance that may have been shampoo is insufficient, without more, to
create an inference that the employee caused the shampoo-like substance
to be on the floor of the store.”). 	Kincaid simply did not present any
evidence demonstrating actual awareness of a dangerous condition by
Walmart or its employees.
Kincaid thus failed to carry her burden to create a genuine dispute of
material fact that Walmart had actual knowledge. 	Based on the record
evidence, no reasonable finder of fact could determine that Walmart had
actual knowledge of the hazard. 	Summary judgment is proper on this
ground.
Constructive Knowledge
Constructive knowledge may be proven by circumstantial evidence if a
plaintiff can prove “(a) [t]he dangerous condition existed for such a length

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of time that, in the exercise of ordinary care, [Walmart] should have known
of the condition; or (b) [t]he condition occurred with regularity and was
therefore foreseeable.” 	§ 768.0755(1), Fla. Stat. (2020).
“To prove a dangerous condition occurred with regularity, the plaintiff
must provide evidence of recurring or ongoing problems that could have
resulted from operational negligence or negligent maintenance.” 	Publix
Super Markets, Inc. v. Safonte, 388 So. 3d 32, 36 (Fla. 4th DCA 2024)
(quotation and citation omitted).
Again, Walmart easily carried its initial burden to show the absence of
a factual dispute. 	Kincaid thus had the burden to point to evidence
creating a genuine dispute of material fact.
Kincaid’s position focuses on the second category of evidence that could
demonstrate 	constructive 	knowledge, 	section 	768.0755(1)(b). 	Kincaid
contends she presented evidence that a dangerous condition occurred with
regularity and was foreseeable because Walmart employees used gel packs
which could rupture if not monitored or inadvertently move into the
footpath of customers. Kincaid asserts this is supported by testimony that
slip-and-fall incidents involving smashed gel packs had occurred many
times, and Walmart employees were required to place warning signs when
using the gel packs, implying they knew of the potential hazard.
But the slip-and-fall incidents at this Walmart shown in the record were
mostly in the front of the store from rain/rainwater, or customers leaving
freezers open and creating condensation. 	Mr. Garnish testified that while
he had responded to numerous slip-and-falls throughout the store, slips
on gel packs were rare and he could not remember any that were in the
meat department while he was employed at this Walmart store. 	Mr.
Garnish also did not remember any ongoing leaks in the meat department,
or any specific knowledge of Kincaid’s incident. 	Kincaid testified that she
had never seen gel packs, despite frequenting this Walmart a couple days
a week.
Kincaid did not present evidence that customers, with any frequency,
slipped on gel packs that migrated from where the gel packs were initially
placed. The vague record evidence that perhaps a few slip-and-falls on gel
packs had occurred in a store of this magnitude does not rise to the level
of “regularity.” 	See, e.g., Speedway, LLC v. Cevallos, 331 So. 3d 731, 735
(Fla. 4th DCA 2021) (reversing verdict for customer in slip-and-fall case
against a gas station, noting that “the theory [that buildup occurred with
regularity and was foreseeable] requires that she prove that buildup
actually occurred at the time and location of her fall and that it contributed

9
to her fall. 	She never proved that foundational fact.”); Levine v. Costco
Wholesale Grp., 2023 WL 3600657, at *5 (S.D. Fla. March 6, 2023) (to take
the witness’ testimony that he saw liquid on the floor of the meat aisle
“more than twice” to mean that he saw liquid “so regularly … that the
condition would have been foreseeable, would require the Court to make
an unreasonable inference”; holding “that none of the testimony, even if
taking as true that some of the employees had seen spills on the floor up
to ten times, could support a reasonable juror in finding that Defendant
was on constructive notice of any alleged dangerous condition”); Fonseca
v. Wal-Mart Stores, E., LP, 2019 WL 7371813, at *1 (S.D. Fla. Sept. 23,
2019) (rejecting the position that constructive knowledge is found “by
virtue 	of 	the 	dangerous 	condition’s 	‘regularity’” 	and 	holding 	that 	a
condition occurring “from time to time” does not constitute evidence of
regularity); Delice v. Burlington Stores, Inc., 2024 WL 4370882, at *5 (S.D.
Fla. October 1, 2024) (“[T]o succeed on this ‘regular occurrence’ theory of
constructive notice, the record must reveal additional evidence suggesting
that similar dangerous conditions or incidents occurred with regularity.”);
Rodriguez v. B.J.’s Rests., Inc., 2023 WL 5507737, at *7 (S.D. Fla. Aug. 24,
2023) (finding a plaintiff failed to establish constructive notice of a liquid
substance on the defendant’s floor under § 768.0755(1)(b) where the
plaintiff had “not alleged any facts concerning a substantially similar
incident to the one at issue” (citation omitted)); Kozlowski, 2023 WL
4350567, at *9 (“[E]vidence of the existence of a hazard, without more,
does not demonstrate constructive knowledge” (citation omitted)); Salazar
v. Norwegian Cruise Line Holdings, Ltd., 2016 WL 2961584, at *6 (S.D. Fla.
May 	23, 	2016) 	(summary 	judgment 	was 	appropriate 	where 	plaintiff
“provided no evidence at all of any accidents of the sort he experienced in
the location he experienced it (or any similar location)” and “[c]onstructive
notice cannot be based on mere theory”).
Finally, Kincaid’s assertion that Walmart had a policy to place warning
signs when using gel packs, and that this policy is evidence of a foreseeable
recurring hazard, is speculation. 	Mr. Garnish’s unelaborated testimony
was that employees generally placed warning signs “stating that there was
. . . a leak somewhere or water somewhere” when using gel packs. He also
testified that employees were to call maintenance and place a caution sign
or cone when a hazard was detected. 	He could not remember, in this
specific instance, if signs were placed.
The existence of a (vaguely identified) clean-up or warning policy alone
does not substitute for evidence that a dangerous condition occurred with
sufficient regularity to impute constructive knowledge. The evidence here,
without more, would require drawing a series of impermissible inferences
that are unsupported by the record. Cf. Bennett v. Jetro Restaurant Depot,

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LLC, 2024 WL 4471996, at *6 (S.D. Fla. March 8, 2024) (“Plaintiff does not
cite to any authority to support the notion that a general maintenance
policy constitutes awareness that a dangerous condition occurred with
such regularity as to be foreseeable.”); Levine, 2023 WL 3600657, at *5 (“I
fail to see how Defendant’s store-wide safety measures invite a conclusion
that Defendant was on notice of a dangerous condition on the ground. 	It
seems counterintuitive and against public policy to construe Defendant’s
safety policies against it, and thereby to use Defendant’s efforts to ensure
safety on its premises as affirmative evidence that it had constructive
notice of a hazard.”); Peer v. Home Depot U.S.A., Inc., 2012 WL 1453573,
at 	*3 	(S.D. 	Fla. 	Apr. 	26, 	2012) 	(“[S]imply 	having 	policies 	to 	prevent
incidents does not equate to those instances being foreseeable.”) (citing
Wal-Mart Stores, Inc. v. King, 592 So. 2d 705, 707 (Fla. 5th DCA 1991)).
The evidence Kincaid points to does not establish constructive notice.5
Kincaid again failed to carry her burden to present a genuine dispute
of material fact that Walmart had constructive knowledge. 	Summary
judgment is proper on this ground as well.
IV. 	CONCLUSION
In sum, we find no genuine dispute of material fact such that a
reasonable jury could return a verdict for Kincaid. 	She failed to meet her
burden to point to evidence from which a jury could find that Walmart had
either actual or constructive knowledge of the ruptured gel pack on which
she slipped. 	We affirm summary judgment for Walmart.
Affirmed.
MAY and CONNER , JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.
5 The “negligent mode of operation” theory of liability is no longer viable under
the current statute. 	Thus “to the extent Plaintiff is arguing that Defendant’s
negligent maintenance of the property is evidence of constructive notice, this is
not a viable theory.” Avila Andrade v. Wal-Mart Stores E., LP, 2023 WL 6846670,
at *4 (S.D. Fla. Oct. 17, 2023) (citing Pembroke Lakes Mall Ltd. v. McGruder, 137
So. 3d 418, 424 (Fla. 4th DCA 2014)); see also Khorran v. Harbor Freight Tools
USA, Inc., 251 So. 3d 962, 966 n.2 (Fla. 3d DCA 2018) (recognizing that the
negligent mode of operation theory is not applicable “in premises liability cases
involving a slip and fall on a transitory foreign substance”).