Graham v. Great Atlantic & Pac. Tea Co., 69--744

• Decision Date: 21 October 1970
• Docket Number: No. 69--744,69--744
• Citation: 240 So.2d 157
• Parties: Margaret GRAHAM, Appellant, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, Inc., Appellee.
• Court: Florida District Court of Appeals

Page 157

240 So.2d 157

Margaret GRAHAM, Appellant, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, Inc., Appellee.

No. 69--744.

District Court of Appeal of Florida, Fourth District.

Oct. 21, 1970.

Larry Klein, of Cone, Wagner, Nugent, Johnson, McKeown & Dell, West Palm Beach, for appellant.

John R. Beranek, of Jones, Paine & Foster, West Palm Beach, for appellee.

McCAIN, Judge.

Plaintiff, Margaret Graham, filed suit below against defendant for injuries received when she was knocked down and injured by a shoplifter who was escaping from defendant's food market. The circuit court dismissed plaintiff's second amended complaint with prejudice for failure to state a cause of action. Plaintiff declined to amend further and elected to stand on her amended pleadings.

In reviewing the order of the court below, we are required to accept as true the allegations of fact contained in the complaint. We consider here only whether those facts, if proved, would entitle plaintiff to the relief for which she asks. Petterson v. Concrete Construction, Inc., Fla.App.1967, 202 So.2d 191; Gale v. Tuerk, Fla.App.1967, 200 So.2d 261; C.D. Utility Corporation v. Maxwell, Fla.App.1966, 189 So.2d 643; Bailey v. Folks, Fla.App.1966, 182 So.2d 477.

An examination of the plaintiff's second amended complaint in light of these principles reveals that the following sequence of events occurred while plaintiff was a business invitee in defendant's food market: defendant's manager, having discovered that a 'burly' individual, who was accompanied to the store by his family, was or appeared to be attempting to take me chandise from the store without paying, waited until the family was outside near their car and detained them. The manager, alleged to be a much smaller man than the suspect, permitted the wife and child to go without taking down the license number of their car after the suspect voluntarily agreed to accompany the manager back inside the store. As they were walking in, the manager apparently told the suspect that he intended to call the sheriff, and the suspect broke and ran, knocking down and injuring the plaintiff, who was still completing her business.

On these facts plaintiff charges that defendant was negligent in (1) allowing the alleged shoplifter to break and run and knock down the plaintiff; (2) failing to warn plaintiff of the potential danger; (3) failing to close the store; (4) failing to take some other action to protect the plaintiff and other business invitees; and (5) the manner in which defendant attempted to detain the suspect, to-wit: failing to detain the suspect before he left the store; allowing his family to leave without taking down the license number of their car; failure of the manager to obtain assistance from other personnel in detaining the suspect when he knew or should have known that he would need physical assistance; and the imprudence of the manager in advising the suspect that he intended to call the sheriff when he knew this would increase the risk that the suspect would attempt to escape.

With regard to her count in nuisance, plaintiff makes the following allegation:

'6. The defendant knew, in pursuing its course of actions as above alleged, through its agents, servants and employees, or in the exercise of due care should have known, that unless defendant was capable of exercising absolute physical control by force without question of success but with absolute assured success in detaining and containing the alleged shoplifter, that harm might come to its patrons and the public, and, therefore, in the exercise of its course of actions the defendant did perpetuate, provoke and cause to exist a condition of danger to its business invitees and a public nuisance, as a result of which the plaintiff was injured * * *'

Turning first to plaintiff's count in negligence, it should be noted that while the factual situation is one of first impression before us, the rule of law governing liability of a land occupier to a business invitee for acts of a third person on the premises is well-established...