Goldstein v. Great Atlantic & Pacific Tea Co.

• Decision Date: 12 June 1962
• Docket Number: No. 61-312,61-312
• Citation: 142 So.2d 115
• Court: Florida District Court of Appeals
• Parties: Minerva GOLDSTEIN and her husband, Benjamin Goldstein, Appellants, v. GREAT ATLANTIC & PACIFIC TEA COMPANY, a Florida corporation, d/b/a A & P Super Markets; Isador Rudo, Mary Rudo, Max Rudo, and Ida Rudo, Appellees.

Page 115

142 So.2d 115

Minerva GOLDSTEIN and her husband, Benjamin Goldstein, Appellants, v. GREAT ATLANTIC & PACIFIC TEA COMPANY, a Florida corporation, d/b/a A & P Super Markets; Isador Rudo, Mary Rudo, Max Rudo, and Ida Rudo, Appellees.

No. 61-312.

District Court of Appeal of Florida, Third District.

June 12, 1962.

Rehearing Denied June 28, 1962.

Richard E. Thomas and Sam Bloom, Miami, for appellants.

Dean, Adams, Fischer & Gautier, for appellees Great Atlantic & Pacific Tea Co., a/b/a A & P Super Markets.

Dixon, DeJarnette, Bradford, Williams, McKay & Kimbrell, Miami, for appellees, Isador, Mary, Max and Ida Rudo.

Before PEARSON, TILLMAN, C. J., and HORTON and HENDRY, JJ.

PEARSON, TILLMAN, Chief Judge.

Minerva Goldstein was a business invitee on the parking lot of a supermarket and was injured when she allegedly fell over a broken concrete car stop. The Great Atlantic & Pacific Tea Company operated the supermarket and the lot. Isadore, Max, Mary and Ida Rudo were the owners of the real property and had leased it to A & P. The lease contained a covenant to repair on the part of the lessors.

Mrs. Goldstein, joined by her husband, sued A & P and the Rudos. Each defendant denied liability and alleged contributory negligence of the plaintiff Minerva Goldstein. At the close of the plaintiff's case each defendant moved for a directed verdict, and the court announced its intention to grant both motions. Plaintiff thereupon took an involuntary nonsuit. Judgment was entered and this appeal followed. ¹ We affirm as to defendants-appellees, the Rudos, and reverse as to defendant-appellee, A & P

The appellants failed to prove a prima facie case against the Rudos. As the owners of the land, they had no connection with Mrs. Goldstein's injury unless the law should create a liability because of their agreement to keep the premises in repair. The lease agreement was introduced into evidence by the plaintiffs and material portions are as follows:

'Lessor shall make all replacements and any and all other repairs to the demised premises and comply with all such rules, regulations and requirements; and the Lessor assumes liability for all damage and/or injuries resulting from his breach of this covenant and shall indemnify and save harmless the lessee against any and all claims, demands, actions, causes of action, loss or expense brought about by personal injury or property damage to the Lessee, Lessee's customers, or others, or for any damage to the Lessee's merchandise or equipment, arising out of Lessor's failure to make such repairs or replacement.'

Appellants urge that Florida has held that a landlord may be liable to an injured business invitee where the landlord has covenanted to keep the premises in repair, and cits Simms v. Kennedy, 74 Fla. 411, 76 So. 739, L.R.A.1918C, 297, for this proposition. We do not think the statement contained in the cited case was intended to lay down the categorical rule that a landlord is liable for an injury arising out of every defect in the leased premises simply because he has covenanted to keep the premises in repair.

The Florida courts have held that liability may arise when the landlord has undertaken to keep the premises in repair and the landlord either has actual or constructive notice of the defect. Butler v. Maney, 146 Fla. 33, 200 So. 226. Wiley v. Dow, Fla.App.1958, 107 So.2d 166. Prosser, Torts § 80, at 475 (2d Ed.1955). See Moore v. O'Conner, Fla.App.1958, 106 So.2d 606. The requirement of notice to the landlord is essential in the instant case.

Plaintiff has failed to prove either notice to the landlord or circumstances out of which notice might be implied. There was evidence that the break in the car stop was weathered and discolored, but in the absence of showing that this could not have occurred unless the dangerous condition had existed over a period of time, notice cannot be implied therefrom. The testimony of one of the employees of the store was that he had seen the broken car stop on his first day on the job, but that was only two days before the accident. The store manager had never seen the protruding steel rod which constituted the condition alleged. Therefore, in the absence of notice to the landlord or a request to repair, the trial judge was correct in his announced intention to direct a verdict for the defendants-landlords.

We turn now to the question of whether the evidence viewed in the light most favorable to the plaintiffs-appellants would have supported a jury verdict against the defendant, A & P. Without attempting an exhaustive statement of the testimony, we think the following statements are an outline line of the more important facts involved upon which the jury was entitled to deliberate.

Minerva Goldstein had been a shopper in the A & P store. After completing her shopping, she followed the boy who was wheeling a shopping cart containing her groceries toward the car into which her groceries were to be placed. The vehicle in which plaintiff was a passenger had been backed into a parking place with the trunk extending toward an adjoining sidewalk. The boy placed the shopping cart near the right rear wheel of the car and unloaded it into the trunk. Plaintiff stood on the sidewalk and watched the transfer of the groceries from shopping cart to car trunk. After the boy completed the transfer and plaintiff had tipped him, she started toward the door of the car, and according to her testimony tripped over a metal reinforcing rod which protruded...