Food Fair, Inc. v. Gold

• Citation: 10 Fla. L. Weekly 276,464 So.2d 1228
• Decision Date: 29 January 1985
• Docket Number: 83-2277,Nos. 83-1670,s. 83-1670
• Parties: 10 Fla. L. Weekly 276 FOOD FAIR, INC., d/b/a Pantry Pride Stores, Appellant, v. Augusta GOLD; Industrial Fire and Casualty Insurance Company and Justine Weiner, Appellees.
• Court: Court of Appeal of Florida (US)

Page 1228

464 So.2d 1228

10 Fla. L. Weekly 276

FOOD FAIR, INC., d/b/a Pantry Pride Stores, Appellant, v. Augusta GOLD; Industrial Fire and Casualty Insurance Company and Justine Weiner, Appellees.

Nos. 83-1670, 83-2277.

District Court of Appeal of Florida Third District.

Jan. 29, 1985.

Rehearing Denied March 27, 1985.

Ponzoli & Wassenberg and Steven R. Berger, Miami, for appellant.

Rentz & Rust, Miami, Daniels & Hicks and Patrice A. Talisman, Goodhart & Rosner, Jeanne Heyward, Miami, for appellees.

Before BARKDULL, HUBBART and JORGENSON, JJ.

BARKDULL, Judge.

This is an appeal from a final judgment entered in a personal injury action brought as a result of an injury sustained in the parking lot provided for patrons of the appellant.

Augusta Gold went to the Pantry Pride Store in Surfside, Florida. While she was shopping, a Mr. Hirshon pulled into the store parking lot and stopped his car waiting for someone to vacate a parking space so he could park his car. A Mrs. Weiner was leaving the store. She pulled her car up behind Mr. Hirshon but hesitated passing him on the left because of limited space. When Mr. Hirshon failed to move his car, after being requested to do so, an argument ensued between Mrs. Weiner (who had left her vehicle) and Mr. Hirshon. Mrs. Weiner had returned to her car when a Mr. Morris pulled up behind her and blew his horn. At this point, Mrs. Weiner started to pass Hirshon's vehicle on the left. She struck a parked car, her vehicle became airborne and struck Mrs. Gold, who by that time was loading groceries into her trunk, severely injuring her. ¹ As a result, Mrs. Gold and her husband sued Food Fair, Inc., Mrs. Weiner, Mr. Hirshon and Mr. Morris. The allegation against Food Fair, Inc. was negligent design of the parking lot ² and negligent failure of the store manager to intervene when he was aware of the altercation outside his store. ³ The cause proceeded to jury trial.

Food Fair's motions for directed verdict made at the conclusion of the plaintiff's case and at the conclusion of all the evidence were denied and the cause was sent to the jury. While the jury was deliberating, Mr. and Mrs. Gold settled their claim against Mrs. Weiner and her insurer. The jury returned its verdict in favor of the Golds. This appeal ensued.

The appellant has preserved several points for review, only one of which we find necessary to consider in reversing the final judgment; that is the failure to grant a directed verdict for Pantry Pride.

In Foley v. Hialeah Race Course, Inc., 53 So.2d 771 (Fla.1951) the Supreme Court reviewed a judgment of dismissal holding that a complaint failed to state a cause of action. The complaint alleged that the defendant maintained a parking lot for its patrons; that the defendant "carelessly and negligently supervised, maintained and controlled the said ... parking area, in that there were an insufficient number of traffic attendants"; that the attendants were improperly stationed and were not performing their duties; and that there were "insufficient traffic warning devices and controls." As a direct result of the foregoing alleged negligent acts and omissions, the plaintiff claimed that he was in an automobile accident with another individual. The Supreme Court in disposing of the issue said:

"The judgment is correct. There is nothing inherently dangerous about a parking lot. No factual allegation is made to indicate a breach of duty which proximately contributed to plaintiff's injury. The allegations are too vague and general to state a cause of action. The proximate cause of plaintiff's injury was by no act of defendant. See, Rosen v. City of Miami, 141 Fla. 664, 193 So. 749; Williams v. Atlantic Coastline R. Co., 56 Fla. 735, 48 So. 209, 24 L.R.A., N.S. 134."

53 So.2d at 771.

Schatz v. 7-Eleven, Inc., 128 So.2d 901 (Fla. 1st DCA 1961) was an appeal from a summary final judgment in favor of a defendant which owned a food store and adjacent parking area. The plaintiff was a business invitee shopping at the store. Customers were invited to drive in and park motor vehicles in the parking area in front of the store building. A sidewalk and curb separated the front of the building from the parking area. An individual operating an automobile drove into a parking stall directly in front of the store. When she later attempted to leave the parking stall, she negligently put her car in forward gear, jumped the curb and sidewalk, and struck the plaintiff, pinning her against a fixture and inflicting severe injuries upon her. The plaintiff claimed that the defendant store owner was negligent in failing to protect business invitees by properly regulating the parking in its lot or in failing to provide adequate curbs, barriers or walls at the front of the building. The plaintiff alleged that the defendant breached a duty to maintain its premises in a reasonably safe condition.

The First District Court of Appeal affirmed the summary judgment. The court recognized that the storeowner owed a duty to exercise ordinary care to maintain its premises in a reasonably safe condition. The court held, however, that the storeowner "did not owe plaintiff a duty as insurer of her safety while on the premises in question, but is charged with the duty of guarding against subjecting plaintiff to dangers of which defendant is cognizant or might reasonably foresee." 128 So.2d at 903. The court also said that negligence is not actionable without proof of reasonably foreseeable consequences. For consequences to be reasonably foreseeable, the court held that they "must be such that a person by prudent human foresight can anticipate what will likely result from the act, because it happened so frequently from the commission of such an act, that in the field of human experience it may be expected to happen again." Id.

The court rejected the notion that a storeowner could be liable for the manner in which it allowed parking in its parking lot. The court stated "the obvious fact" that some drivers lose control over their vehicles and cause damage or injury to others. 128 So.2d at 904. The court held that:

"In a sense all such occurrences are foreseeable. They are not, however, incidents to ordinary operation of vehicles, and do not happen in the ordinary and normal course of events. Why they happen, the consequences resulting therefrom are matters of chance and speculation. If, as a matter of law such occurrences are held to be foreseeable and therefore to be guarded against, there would be no limitation on the duty owed by the owners of establishments into which people are invited to enter. Such occurrences fall...