Brooks v. Phillip Watts Enterprises, Inc.

• Decision Date: 25 April 1990
• Docket Number: No. 89-2572,89-2572
• Citation: 560 So.2d 339
• Parties: 15 Fla. L. Weekly D1176 R.B. BROOKS and Cynthia Brooks, Appellants, v. PHILLIP WATTS ENTERPRISES, INC., d/b/a Barnes Supermarket # 13, Appellee.
• Court: Florida District Court of Appeals

Page 339

560 So.2d 339

15 Fla. L. Weekly D1176

R.B. BROOKS and Cynthia Brooks, Appellants, v. PHILLIP WATTS ENTERPRISES, INC., d/b/a Barnes Supermarket # 13, Appellee.

No. 89-2572.

District Court of Appeal of Florida First District.

April 25, 1990.

Lefferts L. Mabie, III, of Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., Pensacola, for appellants.

Mark J. Upton, of Brown, Hudgens, Richardson, P.C., Mobile, for appellee.

JOANOS, Judge.

This case concerns an action for injuries incurred by R.B. Brooks (appellant) in a fall in Barnes Supermarket # 13 (appellee). Appellants challenge the propriety of the trial court's grant of summary judgment in favor of appellee, asserting that appellee possessed constructive knowledge of the existence of a dangerous condition upon its premises. We reverse.

The accident which is the subject of this appeal occurred at approximately 6:30 a.m. on April 18, 1988. Mr. Brooks's deposition testimony indicates that he parked his truck four or five steps from the entrance to Barnes Supermarket. He exited the truck, and walked into the store to make a purchase. As he walked through the entrance, his feet went out from under him, and he landed in a sitting position in front of the first checkout stand. When he put his right hand on the floor to assist him in rising, he felt a "wet damp" area on the floor.

The depositions of two cashiers on duty at the time of the accident reflect that both witnessed appellant's fall. The cashiers testified that it was raining that morning, and although the rain was not heavy, it had fallen steadily over a period of time. The store possessed and generally used warning cones in connection with wet floors. However, no cones or warning signs were in place on the morning of the accident. The cashiers arrived at work at 6:00 a.m., at which time one swept the area around the front door of the store. This cashier described appellant's accident as a "sit down fall." After asking appellant if he were all right, she told him to go to the office to report the fall.

The assistant manager of the supermarket testified that it was store practice to place yellow cones at the front door when it is raining, because sometimes rain blows in the door. In addition, she stated that store employees place the cones when there has been a spill on the floor, so customers will realize that the floor is wet. The assistant manager also stated that there were no cones or warning signs in place at the time of appellant's fall.

On the basis of the foregoing, and after hearing argument of counsel, the trial court found that appellants failed to prove that any of the Barnes Supermarket employees had actual or constructive notice that there was water on the floor when the accident occurred, and awarded summary judgment in favor of the supermarket.

It is well settled that motions for summary judgment should be cautiously granted in negligence actions, and that the party moving for summary judgment "must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought." Moore v. Morris, 475 So.2d 666, 668 (Fla.1985); Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977); Burroughs Corp. v. American Druggists' Insurance Co., 450 So.2d 540, 543-544 (Fla. 2d DCA 1984); McCabe v. Walt Disney World Co., 350 So.2d 814, 815 (Fla. 4th DCA 1977). If the evidence is conflicting or will permit of different reasonable inferences, it should be submitted to the jury as a question of fact to be determined by it. Moore v. Morris, 475 So.2d at 668.

To recover for injuries incurred in a slip and fall accident, a plaintiff must show that the defendant had actual or constructive notice of the dangerous condition. Maryland Maintenance Service, Inc. v. Palmieri, 559 So.2d 74 (Fla. 3d DCA 1990); Nance v. Winn Dixie Stores, Inc., 436 So.2d 1075, 1076 (Fla. 3d DCA 1983), review denied, 447 So.2d 889 (Fla.1984). Constructive notice may be established by circumstantial evidence, Grizzard v. Colonial Stores, Inc., 330 So.2d 768, 769 (Fla. 1st DCA 1976), (1) by showing that the dangerous condition existed for such a length of time that in the exercise of ordinary care, the defendant should have known of the condition, Grizzard, 330 So.2d at 769; Maryland Maintenance v. Palmieri, 559 So.2d at 76; Budet v. K-Mart Corp., 491 So.2d 1248 (Fla. 2d DCA 1986); Nance, 436 So.2d at 1076; Schmidt v. Bowl America Florida, Inc., 358 So.2d 1385 (Fla. 4th DCA 1978), or (2) by showing that the condition occurred with regularity and was therefore foreseeable. Maryland Maintenance v. Palmieri; Fazio v. Dania Jai-Alai Palace Inc., 473 So.2d 1345 (Fla. 4th DCA 1985); Nance, 436 So.2d at 1077.

The period of time involved in constructive notice of the substance which causes the slip and fall will vary with the circumstances of each case. For example, in Grizzard, this court concluded that the time required for frozen orange juice concentrate to partially liquefy could be deemed sufficient time to constitute constructive notice. In Winn Dixie Stores, Inc. v. Williams, 264 So.2d 862, 864 (Fla. 3d DCA 1972), the court found that the fifteen to twenty minutes the dangerous substance remained on the floor of the business premises was sufficient for the store owner to be charged with knowledge of the condition, and a reasonable time in which to correct it. And, in Schmidt v. Bowl America Florida, Inc., in circumstances somewhat analogous to the instant case, the court said that evidence that no inspection had been made during a particular period of time prior to an accident may warrant an inference that the dangerous condition existed long enough so that the exercise of reasonable care would have resulted in discovery. 358 So.2d at 1387.

In its memorandum of law prepared for the trial court and in its brief filed in this court, appellee places great reliance on Gaidymowicz v. Winn-Dixie Stores, Inc., 371 So.2d 212 (Fla. 3d DCA 1979) and Publix Super Markets, Inc. v. Schmidt, 509 So.2d 977 (Fla. 4th DCA 1987), for the proposition that the plaintiff must show either how the unsafe condition was created, the length of time the condition existed before the accident, or that the store owner was responsible for the accident. In Gaidymowicz...