A server at Casa Ludovico, an upscale restaurant in Palm Harbor, coughed his way through the fall of 2016, or so the summary-judgment record, read as it must be in the plaintiffs’ favor, has it. He had gone to an urgent care clinic in late September with what looked like a cold or a flu and left with antibiotics. The cough did not leave with him. It persisted through a second round of antibiotics after a late-October dentist visit, through his own complaints that he did not feel well, through what one coworker described as hostile exchanges with the manager about how sick he was, and through open speculation among coworkers about whether he had tuberculosis. By mid-December it had turned heavy. He worked shifts throughout. In November, Stephanie Allen dined there; in December, a regular named George Massaua. The server left over a tip dispute in January 2017 and, in March 2017, tested positive for TB. In 2018, both Allen and Massaua were diagnosed with tuberculosis. They sued in 2021.
The trial court gave the restaurant summary judgment. Its reasoning was clean and, on the surface, sympathetic. The restaurant had no reason to know of anything worse than a cold or flu, certainly not that he had TB, and you cannot be liable for a disease you had no reason to know about. On July 8, 2026, the Second District Court of Appeal reversed. Massaua v. Cervelli; Umberto’s of Palm Harbor, Inc., Nos. 2D2024-2621 & 2D2024-2622 (Fla. 2d DCA July 8, 2026) (slip op.). The opinion is short, unanimous, and a small master class in a mistake trial courts make constantly. They ask the duty question at the wrong altitude.
The wrong question
The trial court’s error was to define the danger as the specific pathogen. The Second District said that is not the question. This is the sentence the opinion turns on.
The question is not whether Cervelli and Umberto’s knew or reasonably should have known that Visoiu was infected with TB specifically; it is whether they knew or reasonably should have known that Visoiu was infected with a contagious disease.
That reframing is straight Florida duty doctrine. Since McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992), foreseeability in a Florida negligence case does two different jobs. At the duty stage it asks a broad question, decided by the court. Did the conduct create a zone of risk posing a general threat of harm? At the proximate-cause stage it asks the specific one, usually for the jury. Was this plaintiff’s particular injury within that risk? In the older, blunter language the panel borrowed from McCain, “the risk to be perceived defines the duty that must be undertaken.”
Read against that framework, the trial court’s move was a category error. By insisting the restaurant had to know of tuberculosis, it collapsed the general duty inquiry into the specific causation inquiry. As the opinion put it, the trial court “defined Cervelli and Umberto’s duty to restaurant patrons too narrowly and merged the question of duty with the question of proximate cause.” Influenza is itself a contagious disease that shares many of TB’s symptoms, so even the flu-like symptoms the record attributes to the server, which a jury could find Cervelli should have noticed, were evidence of a contagious disease, not a safe harbor from it. What the trial court treated as exculpatory, that the signs pointed “at most” to a cold or flu, was, at the general-threat altitude, the opposite.
A note on the defendants. Umberto’s of Palm Harbor, Inc. was pleaded vicariously; Carmine Cervelli, the part-owner and manager, for his own conduct. The court analyzed their duty together, as a single question about what the restaurant should have perceived and done. The server was a defendant too, but the judgment in his favor stood, unappealed. What survives is the restaurant’s duty to its patrons.
The condition on the premises
The court’s vehicle was an unusual one, premises liability. A business owes its invitees reasonable care to keep the premises safe, including a duty to warn of dangers it knows or should know about. The “dangerous condition” here was not a wet floor or a loose stair. It was a person, a contagious employee working the room. That let the panel reach for the constructive-notice doctrine that decides slip-and-fall cases. A plaintiff who cannot prove the owner actually knew of a hazard may still get to a jury by showing it lasted long enough that a careful owner should have found and fixed it. As the court quoted, “constructive knowledge may be inferred if the dangerous condition existed for such a length of time that in the exercise of ordinary care, the premises owner should have known of it and taken action to remedy it.” Khorran v. Harbor Freight Tools USA, Inc., 251 So. 3d 962, 965 (Fla. 3d DCA 2018). A puddle on the floor for ten seconds is nobody’s fault; the same puddle an hour later is a jury question. The court held that a “noticeable respiratory illness with conspicuous symptoms that lasted for almost three months,” in a small-staffed restaurant, was the condition that, like the hour-old puddle, had lasted long enough to charge the owner with notice.
The record gave that holding teeth. A bartender testified the server was “clearly unhealthy” and had looked sickly “for weeks,” that there were hostile interactions with the manager about how sick he was, and that coworkers speculated openly about whether he had TB. The manager denied the server had appeared sickly and said he would have fired him had he known. Those are two accounts of the same months, and choosing between them is what juries are for.
Not a bench trial
The opinion’s other half is about how Florida decides motions. In 2021 Florida abandoned its old, plaintiff-friendly summary-judgment standard and adopted the federal one wholesale, importing the Celotex trilogy and the could-a-reasonable-jury-find-for-the-nonmovant test. In re Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d 72, 75 (Fla. 2021). The reform made summary judgment easier to win, but not a bench trial. That distinction is the whole ballgame in Massaua.
Start with the burden. “Until the moving party has met its initial burden” of showing the absence of a genuine dispute, the nonmoving party “is not obliged to prove or disprove anything.” The trial court inverted this, faulting the plaintiffs for not establishing causation before the defendants had carried their own threshold burden. Then the weighing. Even the federalized standard leaves “credibility determinations and weighing the evidence” as “jury functions, not those of a judge,” and “competing material evidentiary showings are incapable of resolution on summary judgment.” The panel pointed to several instances. The trial court credited part of the bartender’s testimony while discrediting the rest to manufacture an “inconsistency”; it rewrote the next employer’s timeline against her own clarification that “it was a few days that we noticed”; and it discounted the epidemiologist’s affidavit. More egregiously still, it leaned on urgent-care records that were never in the record. Summary judgment must rest on record evidence, and a document nobody produced is not record evidence. The federal standard raised the bar for nonmovants; it did not hand judges a license to try the case on paper.
Why TB gets to a jury when COVID did not
The causation half is the most instructive, because it mirrors a fact pattern most of us watched fail. The COVID-era negligence suits against restaurants and stores died, almost uniformly, on causation. The disease had a roughly two-week incubation window, it was everywhere, and there was no way to prove a plaintiff caught it at this restaurant rather than at the gas pump, the grocery store, or a family dinner. Ubiquity plus a long fuse plus no tracing equals no case. Tuberculosis is the opposite on every axis. It is rare. It is reportable. A positive test triggers a Florida Department of Health investigation by law. It moves slowly and requires sustained shared airspace, exactly what months of dining-room shifts provide. And it leaves a trail (a contact investigation, a named index case, molecular typing).
That trail requires one qualification, and the opinion is precise about it. The plaintiffs testified that health-department investigators told them their infections were a genotype match to the index patient. That testimony was offered not for its truth but only to explain why the investigation focused on the restaurant. The causation evidence that actually does the work is the opinion of the plaintiffs’ epidemiologist, Dr. Kunchok Dorjee of the Johns Hopkins University School of Medicine, who opined to a reasonable degree of medical certainty that the server was infectious by the fall of 2016 and that both patrons contracted TB from exposure to him. The “DNA match” is atmosphere; the expert’s opinion is the evidence.
One more contrast. Florida did erect a liability shield for pandemic-era exposure claims in Fla. Stat. § 768.38, with its physician-affidavit gate, its good-faith-compliance immunity decided by the court, and its gross-negligence bar. But the statute, by its terms, reaches only a “COVID-19-related claim.” A tuberculosis plaintiff whose exposure predated the pandemic by four years gets none of that architecture. She faces ordinary common-law negligence, which, as Massaua demonstrates, is enough to reach a jury when the disease cooperates by being traceable.
The plate, not the air
Here is the regulatory irony at the center of the case, worth stating plainly because it explains why the plaintiffs had to sue in negligence at all. The FDA Food Code, the model regime every state adapts, has elaborate machinery for keeping sick workers away from food. But it is built entirely around the gut. Its reportable pathogens are the “Big 6,” all foodborne (enteric), and the symptoms that trigger exclusion are vomiting, diarrhea, jaundice, sore throat with fever, and the like. The whole apparatus is designed to stop contamination from traveling out of an employee’s body and into the food on the plate. A chronic respiratory pathogen of the kind the plaintiffs say traveled into the air over the dining room appears nowhere in that matrix. The Food Code polices the plate. It has nothing to say about the air above it.
The gap is not total, and the court found the bridge. Florida’s own communicable-disease rule bars any person “affected with any disease in a communicable form or . . . an acute respiratory infection” from working where they might transmit it. Fla. Admin. Code r. 64E-11.003(5)(a). The panel cited it not as a cause of action (it took pains in a footnote to say the rule creates none) but as confirmation of the zone of risk the common law already recognized. The regulatory state had drawn the line a jury could find the restaurant crossed but attached no private remedy to it; that job fell, as usual, to negligence law.
Typhoid Mary, in reverse
The comparison the facts invite is Mary Mallon, the cook whose name became a synonym for a walking contagion. But it runs backward. Mallon’s tragedy, and the reason the law struggled with her for years, was that she was asymptomatic. She carried typhoid and felt fine, cooked competently, looked healthy, and infected household after household precisely because nobody, including Mallon, could see anything wrong. Constructive knowledge was impossible; there was nothing to notice.
The server in Massaua was the inversion. He was, on the plaintiffs’ evidence, audibly and visibly sick for the better part of three months, in front of a small staff that talked openly about it. That inversion is the whole case. The doctrine that could not touch Mallon’s employers in 1907 (you cannot have constructive knowledge of a hazard that shows no signs) is the doctrine that lets these plaintiffs past summary judgment, because here the signs were everywhere.
Why he kept working
A sick server stays on the floor for a structural reason. Food service is the paradigm no-paid-sick-leave industry. In one survey of more than 4,300 restaurant workers, 88 percent had no paid sick time and 63 percent had worked while sick. The same economics the CDC blames for a large share of restaurant-linked foodborne outbreaks (no leave, no shift cover, show up or lose the shift) kept a coughing man serving tables for a quarter of a year. The Food Code’s blind spot and the industry’s wage structure pointed the same way, and a person with a persistent cough absorbed the cost of both.
The honest limits
This is a slip opinion, expressly subject to revision, with no reporter citation yet; cite it accordingly. Nothing here is decided on the merits. Massaua is a summary-judgment reversal and nothing more. The restaurant may well win at trial, and a jury is free to believe the manager who said he saw no sign of serious illness. The infection counts stay soft; the opinion says only that “a few employees” of the two restaurants tested positive, and this post will not manufacture a harder number than the court used. And the theory that survives runs to patrons. Any parallel claim by the infected coworkers would land in a different posture entirely, most likely barred by workers’-compensation exclusivity. The duty runs to the people the restaurant invited in, not, on this record, to the people it employed.
What Massaua actually settles is narrow and sound. A business’s duty to its invitees is measured by the general threat its conduct creates, not by the precise name of the harm, and the 2021 summary-judgment reforms did not license judges to weigh the evidence. The rest is for a jury in Pinellas County. The air above the plate turns out to be a place the Food Code never reached. But the common law, it seems, has been there all along.
The authorities: Massaua v. Cervelli; Umberto’s of Palm Harbor, Inc., Nos. 2D2024-2621 & 2D2024-2622 (Fla. 2d DCA July 8, 2026) (slip op.); McCain v. Florida Power Corp., 593 So. 2d 500, 503 (Fla. 1992); Khorran v. Harbor Freight Tools USA, Inc., 251 So. 3d 962, 965 (Fla. 3d DCA 2018); In re Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d 72, 75 (Fla. 2021); Fla. Admin. Code r. 64E-11.003(5)(a); Fla. Stat. § 768.38. Quotations were verified against the slip opinion as filed; because it remains subject to revision before official publication, they should be re-checked against the final published version.
John J. Lloyd is a Florida/Texas litigator and legal technologist, and the creator of FLexlaw, a Florida-focused legal research platform. He writes about Florida litigation and legal technology at lloydesq.com.