Food Fair Stores of Fla., Inc. v. Moroni, 562

• Decision Date: 12 December 1958
• Docket Number: No. 562,562
• Citation: 113 So.2d 275
• Parties: FOOD FAIR STORES OF FLORIDA, Inc., a corporation, Appellant, v. Angelina T. MORONI and Imberiol S. Moroni, her husband, Appellees.
• Court: Florida District Court of Appeals

Page 275

113 So.2d 275

FOOD FAIR STORES OF FLORIDA, Inc., a corporation, Appellant, v. Angelina T. MORONI and Imberiol S. Moroni, her husband, Appellees.

No. 562.

District Court of Appeal of Florida, Second District.

Dec. 12, 1958.

Rehearing Denied July 3, 1959.

Brown, Dean, Adams & Fisher, Miami, for appellant.

Orr, Weiss & Simon, Miami, for appellees.

TERRY B. PATTERSON, Associate Judge.

Plaintiffs sued defendant in the court below for damages suffered when the plaintiff wife slipped on a piece of wet spinach and fell to the floor of defendant's supermarket.

The complaint specified the negligence of the defendant in the following language:

'That on or about the 17th day of February, 1955, at or about 2:00 P.M. o'clock, the plaintiff Angelina T. Moroni, a business invitee, while shopping in a certain store owned and operated by the defendant located on N.E. 6th Avenue in Fort Lauderdale, Florida, and while she was approaching the dairy products stall, was caused to trip, stumble and fall on and by reason of some discarded slick and slippery vegetable matter that was lying in a pool of water in front of the said stall area, as more particularly hereinafter shown.

'That the presence of foreign matter and the pool of water in front of the said stall was unexpected and unknown to said plaintiff,

'That it was the duty of the defendant then and there to use reasonable care to maintain the premises in a clean and safe condition.

'That at the said time and place, the defendant in breach of its said duty, controlled and maintained the premises in a negligent manner, in that:

1.

'The defendant allowed and permitted refuse vegetable matter, to-wit: spinach leaves, to be strewn and littered about the said stall area, and thus created a dangerous, hazardous and unsafe condition with respect to a person on foot, or in the alternative,

2.

'The defendant allowed and permitted a pool of water to lie on a smooth terrazzo floor in and about the said stall area, thereby creating a dangerous, hazardous and unsafe condition with respect to a person on foot, or in the alternative,

3.

'The defendant knew or should have known in the exercise of reasonable care, that the vegetable matter lying in the pool of water where a customer was likely to walk about, constituted a latent and concealed peril, creating a dangerous, hazardous and unsafe condition, or in the alternative,

4.

'That the defendant failed to warn persons using that portion of the premises of the danger due to walking through or on that portion of the floor, or in the alternative,'

The answer interposed the defenses of denial and of contributory negligence.

Upon the trial, and over the objection of the defendant, plaintiff introduced extensive evidence of the defendant's operating methods of replenishing its vegetable bins, intending thereby to supply proof, by permissible reasonable inference, that the particular condition causing plaintiff's fall was created by the defendant itself in allowing vegetable matter to be strewn on the floor by its own employees, in which case knowledge by the defendant of the existence of the hazardous condition would be presumed and further proof of notice, actual or constructive, would be unnecessary. There is no other evidence of actual or constructive notice to the defendant of the presence of the wet spinach on its floor.

Counsel in this case do not dispute the rule that in a slip and fall case such as this it is incumbent upon the plaintiff to allege and prove that either the alleged condition giving rise to the plaintiff's injury was created by the store management, its servants or employees or that the condition was actually known to exist by the store management or had remained as such a sufficient length of time for the management to have discovered it and removed it by the exercise of due diligence. Carl's Markets, Inc., v. Leonard, Fla., 73 So.2d 826; Messner v. Webb's City, Inc., Fla., 62 So.2d 66; Food Fair Stores, Inc., v. Flood, Fla., 85 So.2d 831; Carl's Markets, Inc., v. Meyer, Fla., 69 So.2d 789.

Defendant strenuously contends, however, that in this case, by their complaint as framed, plaintiffs have elected to charge defendant with the negligent failure to remove a dangerous condition after knowledge of its existence, actual or constructive, and that under such complaint it is essential to plaintiffs' case that they prove either that the defendant had actual knowledge of the existence of the wet spinach on the floor or that it had remained there a sufficient time for defendant to have become aware of it by the exercise of due diligence, neither of which plaintiff has offered to do. Defendant relies heavily on Carl's Market, Inc. v. Meyer, supra. It is the defendant's contention that under the issues so drawn evidence of the store's operating procedures is inadmissible to prove the issue, not pleaded, that the defendant through its servants and employees created the dangerous condition; and that even if admissible the circumstantial evidence of the store's procedures is insufficient for that purpose.

The trial judge admitted the objected to evidence on the ground that the allegations of the complaint were broad enough to encompass the issue that the dangerous condition causing the accident was the creation of the defendant itself. Admittedly the complaint could have been drawn with more clarity but we agree with the trial judge that the allegations cover the issue of...