Gaidymowicz v. Winn-Dixie Stores, Inc.

• Decision Date: 22 May 1979
• Docket Number: No. 78-1781,WINN-DIXIE,78-1781
• Citation: 371 So.2d 212
• Parties: Mary GAIDYMOWICZ, Appellant, v.STORES, INC., Appellee.
• Court: Florida District Court of Appeals

Page 212

371 So.2d 212

Mary GAIDYMOWICZ, Appellant, v. WINN-DIXIE STORES, INC., Appellee.

No. 78-1781.

District Court of Appeal of Florida, Third District.

May 22, 1979.

Horton, Perse & Ginsberg and Arnold R. Ginsberg, Vogler & Postman, Miami, for appellant.

Vernis & Bowling and Richard N. Blank, Miami, for appellee.

Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.

HAVERFIELD, Chief Judge.

In this negligence action plaintiff, Mary Gaidymowicz, appeals an adverse final judgment entered pursuant to defendant supermarket's motion for directed verdict made at the close of her case.

Mrs. Gaidymowicz while shopping at one of the Winn-Dixie Stores slipped and fell on some green liquid detergent which was lying on the floor of aisle number 3 and sustained injury. At the jury trial Harold Sobel, who had accompanied his mother, Mrs. Gaidymowicz, to the market, testified that upon noticing the liquid detergent on the floor of aisle 3, he immediately notified the store manager, Herbert Russell, and then returned to aisle 3 whereupon he observed his mother on the floor. Sobel further testified that it took him just over a minute to walk over to the manager and inform him of the liquid lying on the floor and to return to aisle 3. Mr. Russell, the store manager, testified that the first time he was apprised of the liquid lying on the floor was when Mr. Sobel came to him and told him of Mrs. Gaidymowicz's fall and that no more than five minutes prior thereto he had walked down aisle 3 and nothing was on the floor. Mr. Russell also stated that upon arriving at the scene of the fall, he noticed some liquid detergent on the floor of aisle 3 and also some detergent on aisle 4, but none on the cross-aisle near the meat counter from where Mrs. Gaidymowicz had just returned to her cart on aisle 3.

Based upon the above testimony, the trial judge granted Winn-Dixie's motion for a directed verdict. Mrs. Gaidymowicz appeals and contends that contested issues of fact existed which required jury resolution.

With regard to the duty of a supermarket to one of its patrons, the well established general rule is that the owner of the premises will not be held liable if the record fails to show either how the condition was created, the length of time the condition existed before the accident or that the store owner was responsible for the condition. The exception to the above rule is that the owner of a store may be held liable for a customer's injuries if the dangerous condition on the floor existed for a sufficient length of time to charge the defendant owner with constructive knowledge. Montgomery v. Florida Jitney Jungle Stores, Inc., 281 So.2d 302 (Fla.1973).

The evidence on the issue of Winn-Dixie being on actual notice of the liquid on the floor when viewed in a light most favorable to Mrs. Gaidymowicz reflects that a little over a minute before her fall, her son, Harold Sobel, informed the manager, Mr. Russell, of the liquid...