826 So.2d 256 (Fla. 2002), SC96244, Markowitz v. Helen Homes of Kendall Corp.

Docket Nº:SC96244
Citation:826 So.2d 256, 27 Fla. L. Weekly S 724
Opinion Judge:The opinion of the court was delivered by: Pariente, J.
Party Name:PATRICIA MARKOWITZ, et al., Petitioners, v. HELEN HOMES OF KENDALL CORPORATION, etc., Respondent.
Attorney:Joel D. Eaton of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin &
Case Date:September 05, 2002
Court:Supreme Court of Florida

Page 256

826 So.2d 256 (Fla. 2002)

27 Fla. L. Weekly S 724

PATRICIA MARKOWITZ, et al., Petitioners,



No. SC96244

Florida Supreme Court

September 5, 2002

Page 257

Application for Review of the Decision of the District Court of Appeal - Direct Conflict, Third District - Case No. 3D98-452 (Dade County)

Joel D. Eaton of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, Florida, for Petitioners

Angela C. Flowers of Kubicki Draper, Miami, Florida, for Respondent


We have for review the decision of the Third District Court of Appeal in Markowitz v. Helen Homes of Kendall Corp., 736 So.2d 775 (Fla. 3d DCA 1999), which expressly and directly conflicts with the First District Court of Appeal's opinion in Thoma v. Cracker Barrel Old Country Store, Inc., 649 So.2d 277 (Fla. 1st DCA 1995), and the Fourth District Court of Appeal's opinion in Greenleaf v. Amerada Hess Corp., 626 So.2d 263 (Fla. 4th DCA 1993). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.


The Markowitzes brought suit against Helen Homes of Kendall Corporation ("Helen Homes"), alleging that while Mrs. Markowitz was visiting her mother, a resident at the nursing home operated by Helen Homes, Mrs. Markowitz slipped and fell on a grape in the main area of the nursing home facility and sustained serious injuries. The Markowitzes alleged that Mrs. Markowitz entered the facility around 1:00 p.m. at the end of the lunch hour, and at a time when residents were leaving the dining room. The hallway where Mrs. Markowitz fell was tiled with a marble-type surface and the facility's dining room was nearby. For residents to reach the elevators that would return them to their activities or rooms after eating, they were required to traverse the hallway where Mrs. Markowitz fell. The Markowitzes claimed that despite the fact that residents of the facility were elderly and infirm in varying degrees, Helen Homes permitted them to carry food from the dining room to their rooms after their meals. In addition, they claimed that three of the nursing home's employees were engaged in a conversation in the immediate vicinity of the fall and should have been aware of the presence of the grape.

After discovery, Helen Homes moved for summary judgment contending that there was no evidence that it had actual knowledge of the presence of the grape, or that the grape was on the floor for a sufficient length of time to provide it with constructive notice of the grape's presence. Helen Homes relied on the testimony of

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the nurses, who denied knowledge of the presence of the grape, and the deposition of the building supervisor and the housekeeper, who each testified that Helen Homes' policy was that common areas are swept and cleaned several times throughout the day. For purposes of its motion for summary judgment, Helen Homes admitted that the grape was probably dropped on the floor by a resident who was bringing fruit back to his or her room.

With their response to the motion for summary judgment, the Markowitzes attached the affidavit of an expert who possesses a master's degree in health care administration and who serves as a coadministrator of a nursing home facility in South Florida. The expert stated that he was familiar with the standards pertaining to the proper administration of nursing homes and assisted living facilities. He also stated that he had reviewed the depositions and photographs of the area where Mrs. Markowitz fell, and that he concluded:

It is not reasonable to allow residents to remove food from the dining area. Residents of facilities like this should either eat in the dining area or the food should be brought to their room by an employee. Allowing residents to move through the facility with food created an unnecessary and unreasonable hazard which directly caused the Plaintiff's injury. The risk was foreseeable to Defendant since it is well known that elderly people in facilities like the Defendant's are likely to spill food because of their diminished balance, strength, and equilibrium.

The trial court granted Helen Homes' motion and entered final summary judgment. On appeal, the Third District affirmed the entry of final summary judgment "because the Markowitzes [were] unable to prove that the nursing home had actual or constructive knowledge of the spilt grape." 736 So.2d at 776. In support of this holding, the Third District stated:

There is no evidence in the record to support the Markowitzes' contention that because three nurses were in the vicinity of the fall they saw or should have seen the grape. Furthermore, there is no evidence to suggest that the grape was on the floor for a length of time that would place the nursing home on reasonable notice of its existence.

Id. In addition, the Third District rejected the Markowitzes' negligent mode of operation claim, citing Publix Super Market, Inc. v. Sanchez, 700 So.2d 405, 406 (Fla. 3d DCA 1997).

The Markowitzes argue that the Third District erred in determining that no genuine issue of material fact existed on the issue of Helen Homes' negligence. The Markowitzes support this argument with two alternative and independent grounds: (1) Helen Homes' policy of permitting its elderly residents to carry food from the dining room to their rooms, through heavily trafficked areas of the facility and without assistance or supervision, created a foreseeable and unreasonable risk of creating slip and fall hazards that would cause harm to others; i.e., Helen Homes' mode of operation was negligent; and (2) Helen Homes was on constructive notice of the particular grape on which Mrs. Markowitz slipped and fell because three of its employees were in the immediate vicinity--and one was standing within inches of the grape--at a time when residents were leaving the dining room with food in their hands and returning to their rooms, and the employees unreasonably failed to detect the grape and remove it from the floor.


A trial court may grant a motion for summary judgment only "if the pleadings,

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depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fla. R. Civ. P . 1.510(c); see Fisel v. Wynns, 667 So.2d 761, 764 (Fla. 1996). When reviewing the entry of summary judgment, "an appellate court must examine the record and any supporting affidavits in the light most favorable to the non-moving party." Turner v. PCR, Inc., 754 So.2d 683, 684 (Fla. 2000).

We begin our analysis with a review of the Third District's rejection of the negligent mode of operation theory. Markowitz asserts that she established evidence of a negligent mode of operation in the manner in which the nursing home allowed its residents to carry food from the dining room to their rooms. In rejecting this contention, the Third District cited to its decision in Sanchez and also relied upon the absence of a previous instance where a resident or visitor fell as a result of a "grape or other food substance" being on the floor. See Markowitz, 736 So.2d at 776.

In our recent opinion of Owens v. Publix Supermarkets, Inc., 802 So.2d 315 (Fla. 2001), we recognized the continued viability of the negligent mode of operation theory and disapproved Sanchez to the extent that Sanchez limited the negligent mode of operation theory. See Owens, 802 So.2d at 332. 1 We explained that under the negligent mode of operation theory:

If the evidence establishes a specific negligent mode of operation such that the premises owner could reasonably anticipate that dangerous conditions would arise as a result of its mode of operation, then whether the owner had actual or constructive knowledge of the specific foreign substance is not an issue. The dispositive issue is whether the specific method of operation was negligent and whether the accident occurred as a result of that negligence.

Id. In addition, we recognized that:

"Florida, like other jurisdictions, recognizes that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others." McCain v. Florida Power Corp., 593 So.2d 500, 503 (Fla. 1992). It is undisputed that under Florida law, all premises owners owe a duty to their invitees to exercise reasonable care to maintain their premises in a safe condition. The existence of a foreign substance on the floor is not a safe condition.

Id. at 330.

The duty of premises owners to maintain their premises in a safe condition is not exclusively limited to detecting dangerous conditions on the premises after they occur and then correcting them; the duty to exercise reasonable care may extend to taking actions to reduce, minimize, or eliminate foreseeable risks before they manifest themselves as particular dangerous conditions on the premises. Of course, the duty of care may vary with the circumstances. See, e.g., Wal-Mart Stores, Inc. v. Rogers, 714 So.2d 577, 578 (Fla. 1st DCA 1998) (whether store was negligent in manner in which it hung radios from hook

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so as to create a dangerous condition was jury question); Ochlockonee Banks Rest., Inc. v. Colvin, 700 So.2d 1229, 1230 (Fla. 1st DCA 1997) (where jury could have determined that the defendant's negligence consisted of allowing a dangerous condition to exist by allowing people to place their drinks on the railing immediately adjacent to the dance floor); Klaue v. Galencare, Inc., 696 So.2d 933, 935 (Fla. 2d DCA 1997) ("[W]hether a business entity was negligent in stacking items on a shelf at a particular height, in a particular manner, and at a particular location thus causing a dangerous condition to exist...

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