Graham v. Langley

• Decision Date: 13 December 1996
• Docket Number: No. 95-3036,95-3036
• Citation: 683 So.2d 1147
• Parties: 21 Fla. L. Weekly D2640 John GRAHAM, Appellant, v. Ryan Dwyer LANGLEY, Steak N' Shake, Inc., et al, Appellee.
• Court: Florida District Court of Appeals

Page 1147

683 So.2d 1147

21 Fla. L. Weekly D2640

John GRAHAM, Appellant, v. Ryan Dwyer LANGLEY, Steak N' Shake, Inc., et al, Appellee.

No. 95-3036.

District Court of Appeal of Florida Fifth District.

Dec. 13, 1996.

R. David Ayers, Jr., Winter Park, for Appellant.

Linda S. O'Connor and David A. Paul of Fisher, Rushmer, Werrenrath, Keiner, Wack & Dickson, P.A., Orlando, and Redding J. Blount, Casselberry, for Appellee.

THOMPSON, Judge.

John Graham appeals from an adverse summary judgment in favor of Steak N' Shake. Graham alleges that Steak N' Shake breached its duty to protect him as a business invitee from the negligent act of Ryan Dwyer Langley. Graham argues it was foreseeable that Langley would drive his Chevrolet Blazer through a plate glass window and injure Graham while the latter was a patron inside Steak N' Shake. Steak N' Shake argues that as a matter of law, the accident was not foreseeable and that entry of the summary judgment for Steak N' Shake was proper. We affirm.

Graham was sitting inside the Steak N' Shake when Langley attempted to park in a parking space adjacent to the restaurant. Graham was in a booth next to a plate glass window which reached from ceiling to floor, perpendicular to the parking space. Langley testified that his foot slipped from the brake pedal and hit the accelerator pedal. The vehicle drove over the curb, across the sidewalk, and through the Steak N' Shake glass window. Graham's booth was knocked six feet upon impact and Graham was severely injured. Because Langley's blood alcohol level was between .118 and .123 when tested approximately one to two hours after the accident, he was charged with driving under the influence of alcohol. Graham sued Langley and Steak N' Shake. He argued that the accident was foreseeable, and that Steak N' Shake could have prevented the accident by erecting a curb at least six inches high or by erecting a wheel stop or an adequate barrier between the restaurant and the parking spaces. Graham's expert testified that the curb at the point of the accident was approximately 3 1/2 inches high and that, had it been six inches high, it may have stopped Langley's vehicle.

Steak N' Shake presented affidavits stating that there had been no similar accidents at the restaurant, and that the building complied with all the applicable building codes in existence at the time of construction. The trial court found that the accident was not foreseeable and granted Steak N' Shake's motion for summary judgment. We agree for two reasons.

First, in order to impose a duty upon Steak N' Shake, Langley's driving into Steak N' Shake must have been reasonably foreseeable, not just possible. Firestone Tire & Rubber Co. Inc. v. Lippincott, 383 So.2d 1181 (Fla. 5th DCA), rev. denied, 392 So.2d 1376 (Fla.1980). One way to establish foreseeability is to show that a specific incident occurs with such frequency that it may be expected to happen again, thus suggesting that the defendant reasonably needed to take steps to avoid or prevent the incident. Id.; see also Molinares v. El Centro Gallego, Inc., 545 So.2d 387 (Fla. 3d DCA), rev. denied, 557 So.2d 866 (Fla.1989). Here the record is clear that no vehicle previously had been driven into that Steak N' Shake restaurant. Further, there was no evidence presented by Graham that the height of the curb deviated from the construction code existing at the time the building was constructed. Even Graham's expert testified that he did not know if the six inch curb standard applied when the building was constructed.

Second, prior appellate decisions have held that driving a vehicle through the glass window of a commercial business is not legally foreseeable. This case is identical to Jones v. Dowdy, 443 So.2d 467 (Fla. 2d DCA 1984) and Schatz v. 7-Eleven, Inc., 128 So.2d 901 (Fla. 1st DCA 1961). In both cases, the district courts held that although store owners have a duty to exercise ordinary care to maintain their premises in a reasonably safe condition, they have no duty to protect patrons from injuries caused by a vehicle driven through a window and into the store. Dowdy, 443 So.2d at 467; Schatz, 128 So.2d at 904. The issue of Steak N' Shake's liability was one of law to be decided by the trial court since there were no issues of fact eligible for jury consideration, and the trial court correctly determined that given the undisputed facts, Steak N' Shake was not liable to Graham. We affirm the summary judgment.

AFFIRMED.

GRIFFIN, J., concurs.

W. SHARP, J., dissents with opinion.

W. SHARP, Judge, dissenting.

I respectfully dissent. In my view, the foreseeability of the accident that occurred in this case, is a question which should be answered by a jury. It should not be determined by the trial judge as a matter of law, granting Steak N' Shake's motion for summary judgment.

In granting the summary judgment motion, the trial judge relied on two appellate cases it thought were controlling, and which mandated that result: ¹ Jones v. Dowdy, 443 So.2d 467 (Fla. 2d DCA 1984) and Schatz v. 7-Eleven, Inc., 128 So.2d 901 (Fla. 1st DCA 1961). Jones simply cites Schatz as virtually identical to the facts in that case, without any additional analysis of the foreseeability issue. In Jones and Schatz, a customer (business invitee) was injured while inside a store premises, when an automobile driven by (presumably) another store patron drove a car from the store parking lot, over a curb (six inches high in Jones and three to four inches in Schatz), across a ten-foot wide sidewalk, and through a glass store-front wall. The plaintiff in Schatz produced an affidavit in opposition to the defendant's motion for summary judgment, executed by an engineer, who expressed his opinion as a safety expert, that a barrier of some kind should have been placed between the parking lot and the glass to prevent cars from crashing through the wall and injuring patrons inside.

The court in Schatz declared:

[I]t cannot be contended with any degree of reason or logic that the owner of a store, by permitting automobiles to park perpendicularly to the curb in front of his entrance, or by failing to erect an impregnable barrier between the store and an adjacent area where motor vehicles are driven and parked, should have anticipated that automobiles will be negligently propelled over the curb and across the sidewalk into the entrance of his store. We are not unmindful of the obvious fact that at times operators lose control over the forward progress and direction of their vehicles, either through negligence or as a result of defective mechanisms, which sometimes results in damage or injury to others. In a sense, all such occurrences are foreseeable. They are not, however, incidents to ordinary operation of vehicles, and do not happen in the ordinary and normal course of events. When they happen, the consequence resulting therefrom are matters of chance and speculation. If as a matter of law, such occurrences are held to be foreseeable and therefore to be guarded against, there would be no limitation on the duty owed by the owners of establishments into which people are invited to enter. Such occurrences fall within the category of the unusual or extraordinary, and are therefore unforeseeable in contemplation of the law. (emphasis supplied).

128 So.2d at 904.

In rendering its decision, the Schatz court was obviously concerned about the possible "unlimited" imposition of liability on premises owners with stores configured as many convenience type stores then, and presently, are constructed. It erroneously stated that this duty would be imposed on such store owners "as a matter of law," since what was involved in that case was a summary judgment for the defendants. At worst, the foreseeability issue would have been sent to the jury for a possible finding of liability, as the dissent pointed out. The Schatz court assumed a jury would require an "impregnable" barrier. That is also unfounded.

To take a case away from the jury requires courts that do so, and those which affirm these actions, to declare that no "reasonable" person could reach any other conclusion. ² However, there was a rational dissent in the Schatz case, and there have been numerous cases in other jurisdictions which reverse summary judgments and hold such cases should go to a jury. ³

The record in this case, taking all favorable inferences in the non-moving party's favor as we must do, ⁴ established that Graham and a friend entered the Steak N' Shake located in Winter Park, Florida, as business invitees, seeking to order and consume food and beverage. They sat in a booth which was placed directly in front of a floor-to-ceiling, plate-glass wall. Their backs were towards the window so they could not see cars driving up to park perpendicularly to the glass, just outside.

Before they had time to place an order, they were hit from behind by a Chevy Blazer, driven by the defendant Langley. The car shoved them into the table in front of them, shattered the glass wall, and knocked tables and chairs about. The grill and front part of the Blazer haulted inside the restaurant. Langley tried to back out, but in so doing, moved a bit further forward. Graham and his friend scrambled out of the booth and ran for the far side of the restaurant. Graham alleged he suffered abdominal pain, hernia, and shoulder and neck pain. The extent of his injuries were in dispute but this fact cannot justify a summary judgment being entered against him.

The configuration of the restaurant was typical of like establishments. It was located on a heavily travelled highway. Perpendicular to the sides and front, parking slots for cars were indicated by stripes painted on the pavement. Some of the parking slots had wheel stops or bumpers in front of them. But, the parking slots in front of the glass wall where Langley pulled in to park, had none.

Langley actually pulled his Blazer into a handicapped parking space,...