Food Fair Stores, Inc. v. Trusell, 30991

• Decision Date: 28 June 1961
• Docket Number: No. 30991,30991
• Parties: FOOD FAIR STORES, INC., etc., et al., Petitioners, v. Phoebe C. TRUSELL et vir, Respondents.
• Court: Florida Supreme Court

Page 730

131 So.2d 730

FOOD FAIR STORES, INC., etc., et al., Petitioners, v. Phoebe C. TRUSELL et vir, Respondents.

No. 30991.

Supreme Court of Florida.

June 28, 1961

Dean, Adams, Fischer & Gautier, Miami, for petitioners.

Fuller & Brumer, Miami, for respondents.

THORNAL, Justice.

By petition for a writ of certiorari we are requested to review the decision of the Court of Appeal because of an alleged conflict with prior decisions of this Court. See Trusell et al. v. Food Fair Stores, Inc. etc., Fla.App., 122 So.2d 616.

In this typical 'slip and fall case' we are called upon to determine whether certain statements contained in an affidavit filed in opposition to a motion for a summary judgment constituted admissible circumstantial evidence which would have justified a jury inference of negligence.

We rely upon the factual statement presented by the opinion of the Court of Appeal which is submitted for review. That opinion reveals that Food Fair Stores, the petitioner, operated a supermarket. The respondent Mrs. Trusell was a customer. She allegedly slipped on a piece of lettuce and fell. This suit resulted because of ensuing injuries. After answer, Food Fair moved for a summary judgment. The trial judge had before him the depositions of the two respondents, the statement of one witness who saw Mrs. Trusell fall, and the affidavit of an employee of the market which contained a statement principally relied upon by the Court of Appeal in reversing the summary judgment which the trial judge had entered in favor of Food Fair. The information before the trial judge when he considered the motion for summary judgment simply was that Mrs. Trusell was a customer; she fell in the store, apparently as a result of slipping on the piece of lettuce; no one knew how the lettuce happened to be on the floor and no one knew how long it had been there or who placed it there. In other words, there was no testimony that the lettuce had been placed on the floor either by an employee of the store or by a customer. In this instance the difference is important, as we shall see. In addition to the foregoing, the trial judge was confronted by an affidavit signed by one Nathan Thomas, an employee of the market. This affidavit contained the following statement, to wit:

'* * * bagboys would take the unloaded shopping buggies from the 'checkout' counter and stack them between the 'checkout' counter and the drug department. Further, that the bagboys were supposed to empty the buggies of paper, debris, loose particles of vegetables or greens before stacking the buggies. Further, that in the course of work, the bagboys would not always accomplish this, and that sometimes loose leaves would fall from the buggies to the floor, being shaken loose by the stacking process.'

The trial judge concluded that no genuine issue on material fact was apparent. He thereupon granted Food Fair's motion for summary judgment on the authority of our opinion in Food Fair Stores of Florida, Inc. v. Patty, Fla., 1959, 109 So.2d 5.

Solely on the basis of the statement from the affidavit of Nathan Thomas which we have quoted above, the Court of Appeal concluded that the jury would be justified in inferring that the lettuce leaf in the instant case reached the floor as the result of the negligence of one of the petitioner's 'bagboys', who thereupon failed to remove it promptly, with the resultant injury to the customer. In holding such an inference justifiable, the Court of Appeal then concluded that it would be unnecessary to furnish evidence as to the length of time that the lettuce leaf had been on the floor. On the basis of these conclusions, the Court of Appeal reversed the order of the trial judge which had entered the summary judgment.

We are requested to quash the decision of the Court of Appeal because of the alleged conflict with the prior decision of this Court in Food Fair Stores of Florida, Inc., v. Patty, supra, as well as with a line of decisions dealing with the subject of inferences which may be drawn from circumstantial evidence in civil actions.

The Court of Appeal was correct in its conclusion that when a dangerous condition of a floor of a market is created by an agent or servant of the owner, then such owner may be held liable for resulting injuries to a business invitee. When the negligence which produces the injury is that of an employee of the defendant, then the matter of the employer's knowledge of the existence of the dangerous condition becomes inconsequential. This is so because the knowledge of the employee is chargeable against the employer and his negligent act committed in the course of his employment is binding upon the employer. Carl's Markets v. Meyer, Fla., 1953, 69 So.2d 789; Food Fair Stores of Florida, Inc., v. Moroni, Fla.App., 1958, 113 So.2d 275; Food Fair Stores of Florida, Inc. v. Patty, supra.

Relying on the statement in the Thomas affidavit, the Court of Appeal concluded that in the instant case the jury would have been justified in inferring that the lettuce leaf was deposited on the floor through the negligence of an employee of the store. It held such an inference permissible because of the statement in the affidavit that the 'bagboys' were supposed to empty the buggies of loose particles before stacking them but that they would not always accomplish this and that 'sometimes loose leaves would fall from the buggies to the floor.' It is contended by the respondents in support of the decision of the Court of Appeal, that this statement would justify an inference in the instant case that the lettuce leaf reached the floor as the result of the negligence of some employee.

We observe in passing that in order to justify consideration by a trial judge, statements contained in affidavits on a motion for summary judgment must be such as would be admissible in evidence at the trial. Rule 1.36(e), Florida Rules of Civil Procedure, 30 F.S.A.; Tarkoff v. Schmunk, Fla.App., 1960, 117 So.2d 442; Jones v. Stoutenburgh, Fla., 1956, 91 So.2d 299. The...