Date: Mar 7, 2026

Actual Knowledge Requires Awareness of the Specific Hazard: Unobserved Employee “Creation” and Nearby Spill Cleanup Do Not Establish Notice

Introduction

In Nidia Salcedo Valderrama v. Costco Wholesale Corporation, the Eleventh Circuit (per curiam, unpublished) affirmed summary judgment for Costco in a Florida slip-and-fall case arising from a customer’s fall on a grape near the checkout area of a Costco store in Orlando. The key dispute was not whether a grape on the floor posed a dangerous condition, but whether Costco had the knowledge Florida law requires before liability may attach for a “transitory foreign substance.”

The central issues were: (1) whether Costco had actual knowledge of the grape that caused the fall, and (2) whether evidence that an employee participated in handling grapes at a different register, and later cleaned a different spill, could support a jury finding of actual knowledge of the hazard at the fall location.

Summary of the Opinion

The court affirmed the district court’s grant of summary judgment to Costco because Valderrama failed to create a genuine dispute of material fact that Costco had actual knowledge of the specific grape on which she slipped. The CCTV footage showed that a customer appeared to drag a grape along a cart wheel, leaving it near a closed register; a supervisor cleaned an isolated spill elsewhere; and, in the several minutes before the fall, no employee was shown to have noticed the grape at the fall location. Because Valderrama conceded in the district court that “this case does not involve constructive notice,” the appeal turned solely on actual knowledge, which the record did not support.

Analysis

Precedents Cited

Carlson v. FedEx Ground Package Sys., Inc., 787 F.3d 1313 (11th Cir. 2015): The panel relied on Carlson for the de novo standard of review of summary judgment and the Rule 56 requirement that there be “no genuine dispute as to any material fact.” This framed the court’s approach: absent record evidence from which a reasonable jury could infer actual notice, judgment as a matter of law is appropriate.
Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295 (11th Cir. 2016): Cited for the principle that evidence must be viewed in the light most favorable to the nonmovant with reasonable inferences drawn in her favor. Even applying that favorable lens, the court held the CCTV and testimony still did not permit an inference of actual knowledge.
Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938): The opinion applied Florida substantive law because jurisdiction was based on diversity. Erie explains why Florida’s slip-and-fall statute and Florida notice concepts control, not a federal common-law standard.
Geary Distrib. Co. v. All Brand Imps., Inc., 931 F.2d 1431 (11th Cir. 1991) (per curiam): Used to describe how federal courts applying Florida law follow Florida district court of appeal decisions when the Florida Supreme Court has not addressed a point. This is relevant because the opinion relies on Florida intermediate appellate elaboration of “actual knowledge,” including “creation” theories.
Zivojinovich v. Barner, 525 F.3d 1059 (11th Cir. 2008): Cited for the general elements of negligence. This supplied the doctrinal backbone, but the dispute here centered on the statutory notice requirement for transitory substances.
Skipper v. Barnes Supermarket, 573 So. 2d 411 (Fla. Dist. Ct. App. 1991): Cited for the business-invitee duty framework: reasonable care to maintain premises and to warn of concealed perils known or that should be known to the landowner. The court treated this general duty as limited in transitory-substance cases by Florida’s statutory requirement of actual or constructive knowledge.
Whitlow v. Tallahassee Mem'l HealthCare, Inc., 421 So. 3d 729 (Fla. Dist. Ct. App. 2023): Central to the panel’s “actual knowledge by creation” discussion. Whitlow explains that actual knowledge may be shown where an employee creates a hazard, but that the “create” theory applies only if the employee knows the act produced a hazardous condition; inadvertent/unobserved acts are not enough. The Eleventh Circuit used this to reject the plaintiff’s attempt to equate employee involvement in handling items with actual notice.
Food Fair Stores, Inc. v. Trusell, 131 So. 2d 730 (Fla. 1961): Referenced through Whitlow for the proposition that when an employee drops something creating a hazard, knowledge may be presumed because the employee typically knows he dropped it. The panel emphasized the missing prerequisite here: evidence that an employee actually observed (and thus knew of) the grape’s presence.

Legal Reasoning

Statutory framework controls the notice inquiry. The court applied Fla. Stat. § 768.0755(1), which requires proof that the business had “actual or constructive knowledge of the dangerous condition and should have taken action to remedy it” in “transitory foreign substance” cases. The plaintiff’s express concession that the case did not involve constructive notice eliminated the most common route for plaintiffs (time-on-floor, recurring condition, etc.).
Actual knowledge requires awareness of the hazard, not mere involvement in the area. The panel defined actual knowledge as “direct and clear knowledge, as distinguished from constructive knowledge,” and applied Florida authority recognizing two common actual-knowledge pathways: (a) an employee saw/was told of the hazard, or (b) an employee created it and, by creating it knowingly, is presumed to have knowledge of it. Here, even if an employee’s checkout handling caused a grape to fall near register nine, the record did not show the employee was aware a grape had fallen.
“Creation” theory failed because the alleged act was unobserved/inadvertent. Using Whitlow v. Tallahassee Mem'l HealthCare, Inc., the court treated the “create” element as requiring that the employee know their actions produced the hazard. Without evidence the employee saw a grape fall, the argument collapsed into “should have known”— i.e., constructive notice—an avenue the plaintiff had conceded away.
Knowledge of one spill does not substitute for knowledge of a different hazard elsewhere. The CCTV showed supervisor Hernandez noticed a substance at the end of register nine, guarded the area, cleaned it, and disposed of the towels—conduct consistent with responding promptly to a hazard he actually observed. But Valderrama fell near register six on a grape that had been tracked there by Customer 2. The court refused to “impute” knowledge from the register-nine spill to the register-six grape, calling that inference “backwards logic.” In other words, actual notice is location- and condition-specific: knowing about a spill does not establish knowing about this grape.
CCTV evidence narrowed permissible inferences. The court repeatedly treated the CCTV footage—agreed by both parties to be “the best evidence”—as dispositive on what could reasonably be inferred about notice. The video showed many people passed near the grape for about four minutes without reacting, reinforcing the absence of proof that Costco actually knew about it.

Impact

Although unpublished and “NOT FOR PUBLICATION,” the decision is significant as a practical application of Florida’s § 768.0755(1) notice requirement in the modern evidentiary setting of high-quality surveillance footage.

Sharper boundary between actual and constructive knowledge. The opinion underscores that plaintiffs cannot repackage a “should have noticed” theory as “actual knowledge” when the record lacks proof an employee actually perceived the hazard.
Limits on “employee created the hazard” arguments. The court’s reliance on Whitlow v. Tallahassee Mem'l HealthCare, Inc. signals that “creation” is not a strict-liability shortcut; it requires evidence of knowing creation (or at least evidence that the employee actually observed the hazardous result).
No cross-hazard imputation. Businesses’ awareness of one spill and prompt remediation will not, without more, establish awareness of a separate hazard a short distance away. Plaintiffs will need evidence tying the employee’s knowledge to the specific condition at the fall site.
Concessions matter. The plaintiff’s concession that constructive notice was not at issue effectively foreclosed arguments based on time-on-floor, inspection practices, or foreseeability-of-recurring spills—highlighting the strategic importance of how notice theories are pled and litigated.

Complex Concepts Simplified

Transitory foreign substance: A temporary spill or object on the floor (like a grape) that is not part of the premises and can appear and disappear quickly. Florida treats these cases specially by requiring proof of the business’s actual or constructive knowledge.
Actual knowledge vs. constructive knowledge: Actual knowledge means the business really knew of the hazard (e.g., an employee saw it or was told about it). Constructive knowledge means the business is treated as knowing because the hazard existed long enough or occurred often enough that it should have been discovered with reasonable care.
“Created the hazard” theory: A way to prove actual knowledge when an employee causes the dangerous condition and therefore is presumed to know it exists—typically when the employee observes the creation (e.g., dropping an item). If the act is inadvertent and unobserved, courts may reject it as proof of actual knowledge.
Summary judgment: A pretrial ruling that ends the case when the evidence would not allow a reasonable jury to find for the nonmoving party on an essential element (here, notice).
Diversity jurisdiction and Erie: The federal court heard the case because the parties are citizens of different states and the amount in controversy requirement was met. Under Erie R.R. Co. v. Tompkins, the federal court applies state substantive law (Florida premises-liability rules) and federal procedure (Rule 56 summary judgment).

Conclusion

The Eleventh Circuit affirmed summary judgment because Valderrama could not produce evidence that Costco had actual knowledge of the specific grape at register six before her fall, and she had conceded constructive notice. The opinion reinforces a clear rule for Florida transitory-substance litigation: actual knowledge requires proof of awareness of the particular hazard at issue; unobserved employee involvement and remediation of a different spill do not fill that evidentiary gap. In practice, where surveillance video cabins permissible inferences, plaintiffs must connect employee awareness to the precise condition and location that caused the injury.