Heps v. Burdine's
| Decision Date | 05 January 1954 |
| Citation | 69 So.2d 340 |
| Parties | HEPS et al. v. BURDINE'S, Inc. |
| Court | Florida Supreme Court |
Jack M. Fink, Miami, for appellants.
Dixon, DeJarnette & Bradford and Reginald L. Williams, Miami, for appellee.
Appellee is the owner and operator of a large department store in Miami. The amended complaint alleges that in Cotober 1949, appellant was a customer in said store and stepped on an escalator to be transported from the fourth to the third floor, that a third person with a stroller in which there was a child stepped on the escalator to appellant's rear, that as the escalator moved the stroller was pushed against or struck the plaintiff knocking her over and catapulting her downward against the escalator causing her bodily injuries. The amended complaint further alleges that the escalator was not constructed to accommodate strollers, that in permitting them to be conveyed on it defendant created a dangerous and hazardous condition. A motion to dismiss the amended complaint was granted and final judgment was awarded defendant. The plaintiff has appealed from that judgment.
The point for determination is whether or not the trial court committed error in granting the motion to dismiss the amended complaint, accompanied by a final judgment for defendant.
The answer to the question turns on whether or not defendant was negligent in not keeping attendants standing by to see that no one got on the escalator with a stroller or in not posting signs to forbid the use of the escalator by persons with a stroller. It is alleged that at the time of the accident, the store was crowded with customers, that the escalator was crowded with passengers who were unruly, that they were shoving and pushing each other, that the escalator was not constructed to accommodate strollers and was not intended for conveying such luggage. It is not charged that the escalator was improperly constructed, that it did not move in perfect order, that it was improperly operated or that for other reasons it was negligently constructed or operated so as to prove it to be unsafe and dangerous. The whole theory of the amended complaint is that it was not properly guarded, and that defendant knew or should have known that it was unsafe for transporting strollers. So far as the record discloses it was being operated in a normal or routine manner when the accident occurred.
For every wrong there is a remedy, is one of the first principles of hornbook law that confronts the law student, but with it is the equally important principle that the remedy be sought against the negligent party. It may be that the person who stepped on the escalator with the stroller manipulated it negligently, but that question is not before us. The allegations of negligence go to the lack of attendants to restrict those using the escalator and to guard their conduct while being conveyed on it. We are not convinced that under the circumstances a case was made against defendant as to either charge.
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