Cohen v. Schrider, 87-2207

• Decision Date: 26 October 1988
• Docket Number: No. 87-2207,87-2207
• Citation: 13 Fla. L. Weekly 2383,533 So.2d 859
• Parties: 13 Fla. L. Weekly 2383 David COHEN and Lynn Cohen, his wife, Appellants, v. Inez SCHRIDER, Ariel Service Station, Inc., d/b/a Las Olas Chevron and The Southland Corp., d/b/a 7-11, a foreign corporation licensed to do business in Florida, Appellees.
• Court: Florida District Court of Appeals

Page 859

533 So.2d 859

13 Fla. L. Weekly 2383

David COHEN and Lynn Cohen, his wife, Appellants, v.Inez SCHRIDER, Ariel Service Station, Inc., d/b/a Las Olas Chevron and The Southland Corp., d/b/a 7-11, a foreign corporation licensed to do business in Florida, Appellees.

No. 87-2207.

District Court of Appeal of Florida Fourth District.

Oct. 26, 1988.

Rehearing Denied Nov. 21, 1988.

Kevin A. Malone of Krupnick, Campbell, Malone & Roselli, Fort Lauderdale, and John Beranek of Klein & Beranek, P.A., West Palm Beach, for appellants.

Shelley H. Leinicke of Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane, Fort Lauderdale, for appellee-Southland Corp.

DAUKSCH, JAMES C., Jr., Associate Judge.

This is an appeal from a summary judgment in a personal injury case.We reverse.

The issue on appeal here, as in virtually all appeals from summary judgments, is whether there are any disputed issues of material fact.In personal injury cases it is rare that there is no dispute as to at least one material fact.

Here the issue centers around whether appellee, Southland, owed a duty to appellant, David Cohen, to prevent his injury.Under the facts of this case it is necessary for appellant to prove that the injury which appellant suffered was likely to occur, given the design and condition of the premises.More precisely stated: Was it reasonably foreseeable to the defendant-owner of the premises that a person in the plaintiff-invitee's position may be injured on account of the faulty design or condition of the premises?

Appellant was using the telephone located on the outside of a 7-11 store building.A car operated by Schrider struck and injured appellant.Appellant sued Southland, owner of the 7-11 store, alleging:

a) negligent design of the parking lot;

b) that the Defendant knew or reasonably should have known that vehicles parking were able to move onto the sidewalk and endanger the lives of the customers;

c) failure to install proper blocks which are a common design feature of commercial parking lots;

d) failure to warn patrons of the store of the dangerous condition of the parking lot.

Foreseeability is generally a question of fact for the jury.Goode v. Walt Disney World Co., 425 So.2d 1151(Fla. 5th DCA1982).Unless it can be determined that no reasonable persons could differ in concluding that the accident was unforeseeable then a jury should decide the question; not the judge.Helman v. Seaboard Coast Line R.R., 349 So.2d 1187(Fla.1977).

Amongst the evidence presented by appellant to oppose the motion for summary judgment was the testimony of the Loss Prevention Manager for 7-11 who said approximately ten other accidents like this one had occurred in the three years before this one.Ten others, incidentally, occurred in the two years afterwards. 7-11 is looking for ways to prevent them, he said.They have had discussions to determine whether parking bumpers would help.

Based upon the evidence available for determination of the summary judgment we are bound to conclude that a jury question has been raised regarding whether it was reasonably foreseeable to Southland that a car would "lose its brakes," as here, and roll through the parking lot and onto the sidewalk in front of the store and strike a person.

We are aware of the decision in Schatz v. 7-Eleven, Inc., 128 So.2d 901(Fla. 1st DCA1961), a twenty-seven-year-old case which is very similar.In Schatz, the court said "it cannot be contended with any degree of reason or logic that the owner of a store ... should have anticipated that automobiles will be negligently propelled" into their invitees.The passage of the twenty-seven years and the knowledge and experience of 7-11 as pointed out by its Loss Prevention Manager are two factors which make this case different from Schatz.The foreseeability issue is...