A Florida appeals court has sided with Walmart in a lawsuit brought by a shopper who was injured after slipping on a ruptured gel pack in the meat department. On Wednesday, the Fourth District Court of Appeal affirmed a lower court’s decision, ruling that the retailer cannot be held responsible because there was no evidence that employees knew the hazard was on the floor.
The incident occurred in early 2021 at an Indian River County Walmart. According to court records, Kitty Kincaid was walking near a refrigerated meat “bunker” when she slid on an orange gel pack that had been “squashed,” leaking a jelly-like substance across the aisle.
While Kincaid managed to catch herself on her shopping cart and did not hit the ground, she claimed the jarring motion resulted in severe injuries requiring multiple surgeries, including a cervical spine fusion and knee surgery.
Walmart employees testified that these orange gel packs are standard tools used to soak up condensation or leaks under refrigeration units. However, the court found that simply using the packs did not prove the store was negligent.
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The Knowledge Gap
Under Florida law, a person suing a business for a slip-and-fall must prove the business had “actual or constructive knowledge” of the danger. The court ruled that Kincaid failed to meet this burden.
“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,” the court’s opinion stated.
Kincaid’s legal team argued that since Walmart used the packs and knew they could rupture if stepped on, the store should have been on high alert. They also pointed to a Walmart policy requiring warning signs when gel packs are in use.
The court, however, dismissed these arguments as speculation. It noted that Kincaid provided no evidence regarding how the pack ended up in the middle of the aisle or how long it had been there before she stepped on it.
No Record of “Regular” Hazards
The court also rejected the idea of “constructive knowledge”—the theory that the hazard happened so often it was foreseeable. While a Walmart stocking coach, Scott Garnish, testified he had seen ruptured gel packs before, he stated they were rare and could not recall any prior incidents in the meat department specifically.
Kincaid herself testified that despite being a frequent shopper at that location, she had never seen the gel packs before the day of her accident.
The decision emphasizes the high bar plaintiffs face in Florida premises liability cases following 2021 changes to the state’s summary judgment rules. These changes require plaintiffs to provide more than a “scintilla of evidence” to get their case in front of a jury. Since Kincaid could not show that Walmart was aware of the specific ruptured pack, the court concluded there was no “genuine dispute” for a jury to decide.
The case was heard by Judges Lott, May, and Conner, who all concurred in the decision to affirm the summary judgment.
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