Jenkins v. Brackin, 4881
| Decision Date | 12 February 1965 |
| Docket Number | No. 4881,4881 |
| Parties | Bessie J. JENKINS and Lonnie Jenkins, her husband, Appellants, v. Paul W. BRACKIN, Appellee. |
| Court | Florida District Court of Appeals |
Hugh S. Glickstein, Ft. Lauderdale, for appellants.
Robert Underwood, of Knight, Smith, Underwood & Peters, Miami, for appellee.
The plaintiff-appellants appeal a final summary judgment rendered against them in an action arising out of a 'green bean slip and fall' incident.
The facts before the trial judge revealed that while a customer in defendant's store, the plaintiff, Bessie Jenkins, slipped and fell on a string bean about three or four feet from the vegetable bin. At the time of the accident, Mrs. Jenkins and her husband were the only customers in the store, and, according to their depositions, there were no other customers in the store during the 15 or 20 minutes preceding the plaintiff's fall.
Other persons present in the store were the defendant, an employee behind the meat counter, and a fourteen year old helper. None of these individuals was near the vegetable bin during the period of the plaintiff's presence in the store; nor did any of them have any knowledge of how the bean happened to be on the floor.
The time of the accident is subject to some dispute. Plaintiffs claimed that it occurred around 6:00 or 6:15 P.M., whereas the defendant, in his deposition, stated that it was between 2:00 or 4:00 P.M. Defendant's helper felt it was about '4:00 or 5:30 P.M.' The employee behind the meat counter could not remember the time.
Plaintiffs urge here that the time of the accident is a material fact, because from it the plaintiffs may be afforded a favorable inference as to the length of time the bean was on the floor. The basis for this is the affidavit of the defendant's young helper in which he states that it was his job to sweep the floor when it became dirty; that his hours on the day of the accident were 8:00 A.M. until noon, and 4:00 P.M. until 8:00 P.M.; that the floor did not seem dirty on his return at 4:00 o'clock so he did not sweep it; and that he did not see anyone else sweep the floor from the time of his return.
On these facts, the trial judge granted the defendant's motion for summary judgment finding there was no actual awareness of the bean being on the floor on the part of the defendant or his employees; no evidence of the length of time the bean was on the floor; and no evidence to support the inference that the bean was on the floor long enough so that defendant should have known of its presence.
We find that we cannot agree with the conclusions reached by the lower court.
As has so often been pointed out, the proper issuance of summary judgments is a vexing problem, but the problem reaches its most perplexing proportions in connection with negligence actions. Our only guide is the time honored legal formula that, if the evidence is reasonably susceptible of conflicting inferences, a summary judgment may not be properly entered.
It is not disputed that there is no evidence from which it can be inferred that the bean was on the floor as the result of an act by the defendant or one of his employees. Nor is there any...
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