Fazio v. Dania Jai-Alai Palace, Inc.

• Decision Date: 10 July 1985
• Docket Number: No. 84-1910,JAI-ALAI,84-1910
• Citation: 10 Fla. L. Weekly 1680,473 So.2d 1345
• Parties: 10 Fla. L. Weekly 1680 Antonette FAZIO and Richard Fazio, her husband, Appellants, v. DANIAPALACE, INC., d/b/a Dania Jai-Alai Fronton, Appellee.
• Court: Florida District Court of Appeals

Page 1345

473 So.2d 1345

10 Fla. L. Weekly 1680

Antonette FAZIO and Richard Fazio, her husband, Appellants, v. DANIA JAI-ALAI PALACE, INC., d/b/a Dania Jai-Alai Fronton, Appellee.

No. 84-1910.

District Court of Appeal of Florida Fourth District.

July 10, 1985.

Rehearing Denied Sept. 4, 1985.

Richard B. Berman of Frank & Flaster, P.A., Fort Lauderdale, for appellants.

Jack B. Tuter of Law Offices of Richard K. Owen and Rosemary Wilder of the Law Offices of Richard A. Sherman, Fort Lauderdale, for appellee.

DOWNEY, Judge.

Antonette and Richard Fazio appeal a final judgment entered upon a jury verdict in favor of appellee, Dania Jai-Alai Palace, Inc., in their suit for damages arising out of injuries allegedly sustained by Antonette while a patron of the Jai-Alai Fronton.

Appellants' complaint alleged that they attended the fronton, with some friends, on December 1, 1982. It was a promotional night and the premises were packed. Antonette left her seat to go to a betting window but, as she stepped into the aisle, she slipped and fell on a foreign liquid substance and sustained severe permanent injuries. It was alleged that the floor of the aisle was sloped and covered with linoleum and that it was customary for patrons to carry food and drinks from the service centers to their seats. Appellee was charged with negligence, in that it did not maintain the aisles of the fronton free of foreign substances so that Antonette fell on a liquid substance on the night in question. This negligent condition, it is alleged, was known to appellee and had existed for a sufficient length of time so that appellee should have known of it.

During the course of the trial, appellants attempted to adduce evidence from witnesses that it was common for the fronton aisles to be littered with food and drinks, that the witnesses who frequented the fronton had never seen porters inspecting the aisles, and that there were no formal procedures for constant maintenance and supervision to keep the aisles free of substances and materials, which made the aisles dangerous. The trial court sustained objections to such testimony and generally restricted appellants to proving the condition and notice thereof only on the evening in question, excluding any evidence of the condition of the premises on other occasions. Appellants contend that the trial court impermissibly restricted them from 1) proving an ongoing problem on appellee's premises, the foreseeable danger of which appellee had constructive notice, and 2) proving that appellee did not have reasonable inspections, did not take reasonable precautions to guard against foreseeable dangers and, therefore, was negligent in its maintenance. See Williams v. Winn Dixie Stores, Inc., 443 So.2d 195 (Fla. 3d DCA 1983); Bennett v. Mattison, 382 So.2d 873 (Fla. 1st DCA 1980); Jenkins v. Brackin, 171 So.2d 589 (Fla. 2d DCA 1965). We agree.

Appellee submits that, in order to recover for slip and fall injuries, appellants have to show that appellee had actual or constructive knowledge of the presence of the dangerous condition that injured appellant, and that, if constructive knowledge is relied on, the evidence must show that the condition existed for a sufficient length of time for appellee to have removed it. See Food Fair Stores of Florida, Inc. v. Patty, 109 So.2d 5 (Fla.1959); Cooper v. Winn-Dixie Stores, Inc., 438 So.2d 1012 (Fla. 4th DCA 1983); Winn-Dixie Montgomery, Inc. v. Petterson, 291 So.2d 666 (Fla. 1st DCA 1974). Thus, appellee argues that evidence concerning the condition of the floor of the Jai-Alai Fronton on previous occasions, and appellee's inspection procedures on previous occasions, was not relevant to the issue at trial.

Initially, we point out that the Florida Supreme Court, years ago, announced that a different rule applies to a place of amusement such as the Jai-Alai Fronton, where patrons gather in large numbers and are permitted to partake of food and beverages in all parts of the premises. The court said in Wells v. Palm Beach Kennel Club, 160 Fla. 502, 35 So.2d 720, 721 (1948):

It is true that such a rule has been imposed on stores, banks, shops and other business places of that character, but we think a different rule applies to a place of amusement like a race track where patrons go by the thousand on invitation of the proprietors, and are permitted to purchase and drink bottled beverages of different kinds and set the empty bottles anywhere they may find space to place them....

Places of amusement where large crowds congregate are required to keep their premises in reasonably safe condition commensurate with the business conducted. If the owner fails in this, and such failure is the proximate result of injury to one lawfully on the premises, compensatory damages may be recovered if the one injured is not at fault.... One operating a place of amusement like a race course where others are invited is charged with a continuous duty to look after the safety of his patrons. [emphasis added; citation omitted].

The court stated further that "reasonable care as applied to a race track requires a higher degree of diligence than it does when applied to a store, bank or such like place of business." Id. Noting that the defendants therein permitted the exit aisles and their grandstand where patrons were seated to become littered with empty beverage bottles and that the crowd was large, the supreme court held that, under such circumstances, whether or not defendants exercised ordinary care to protect its patrons was a question for the jury. Id. Thus, Wells v. Palm Beach Kennel Club indicates that circumstantial evidence concerning the operation and maintenance procedures of a place of amusement is admissible as relevant to show that the premises were not kept in a reasonably safe condition. See also West Flagler Associates, Ltd. v. Jackson, 457 So.2d 587 (Fla. 3d DCA 1984). Furthermore, evidence of the routine practice of an organization is admissible to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice. Singer Housing Company v. Wren, 390 So.2d 428 (Fla. 1st DCA 1980); 23 Fla.Jur.2d, Evidence and Witnesses § 152 (1980).

Even applying the caselaw applicable to other businesses, such as stores, rather than places of amusement, it is clear that, where the action is based on negligent maintenance, proof is required of the operational procedures of the defendant owner or occupant that caused the allegedly dangerous condition. Pogue v. Great Atlantic & Pacific Tea Company, 242 F.2d 575 (5th Cir.1957). In Pogue, the plaintiff conceded that there was no evidence of actual or constructive knowledge of the particular lettuce leaf or carrot tops...