Burdine's, Inc. v. McConnell

• Decision Date: 01 April 1941
• Citation: 146 Fla. 512,1 So.2d 462
• Parties: BURDINE'S, Inc., v. McCONNELL.
• Court: Florida Supreme Court

1 So.2d 462

146 Fla. 512

BURDINE'S, Inc., v. McCONNELL.

Florida Supreme Court

April 1, 1941

McKay, Dixon & Dejarnette and Evans, Mershon &amp Sawyer, all of Miami, for plaintiff in error.

Knight & Green, of Miami, for defendant in error.

ADAMS, Justice.

This case comes here on writ of error to review a judgment for defendant in error against plaintiff in error in the amount of $1,000.

The plaintiff's declaration in substance alleges that defendant, the owner of a large department store, operated for the convenience of its customers an escalator. The plaintiff, a child 3 1/2 years of age, entered the store in company with its mother pursuant to an invitation to the general public. While in the store plaintiff wandered from his mother onto the escalator and was caught in the openings where it converged with the floor, resulting in a broken little finger. It is alleged that defendant knew that children were lured to ride and play upon the escalator and suffered them to do so.

The gist of the actionable negligence alleged is that the defendant had reason to apprehend the impending danger and failed and neglected to adopt reasonable precautionary measures to prevent the same. The case was tried on pleas of general issue and special traverse.

The plaintiff's status according to the pleadings was that of an invitee. As such the defendant owed a duty to exercise a reasonable degree of care not to injure him. Christopher Co. v Russell, 63 Fla. 191, 58 So. 45, Ann.Cas.1913C, 564.

Circumstances alter the application of the rule to cases. What is reasonable care to one class of invitees might fall short as to another. Those who invite children, who have not arrived at the age of discretion, to go upon their premises are required to exercise a relatively higher degree of care for their safety than to adults. That degree of care is commensurate with the attending facts and circumstances of each case. Burnett v. Allen, 114 Fla. 489, 154 So. 515; Bagdad Land &amp Lumber Co. v. Boyette, 104 Fla. 699, 140 So. 798; Jacksonville Electric Co. v. Adams, 50 Fla. 429, 39 So. 183, 7 Ann.Cas. 241; and Union Pacific Ry. Co. v McDonald, 152 U.S. 262, 14 S.Ct. 619, 38 L.Ed. 434.

The law imposes such duty. It is a jury question whether the duty has been violated.

In this case the jury had substantial testimony before it that the defendant was guilty of the negligence charged, i. e., that defendant invited the general public, including children, to its store; that, though the escalator was of the best type and in good condition, an injury such as this would probably occur inasmuch as a foreign object the size of a child's finger could enter the openings as alleged in the declaration; that children without supervision or restriction played and rode upon same; that defendant failed to shield the openings or to station guards to protect unsuspecting little children from the probable danger. Under these circumstances we think the jury was justified in coming to the conclusion that defendant was negligent.

It is next claimed that the...