Lester's Diner II, Inc. v. Gilliam

• Decision Date: 15 November 2000
• Docket Number: No. 4D00-78.,4D00-78.
• Citation: 788 So.2d 283
• Parties: LESTER'S DINER II, INC., Appellant/Cross-Appellee, v. Mary Ann GILLIAM, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

788 So.2d 283

LESTER'S DINER II, INC., Appellant/Cross-Appellee, v. Mary Ann GILLIAM, Appellee/Cross-Appellant.

No. 4D00-78.

District Court of Appeal of Florida, Fourth District.

November 15, 2000.

Opinion Denying Rehearing January 3, 2001.

Hinda Klein of Conroy, Simberg & Ganon, P.A., Hollywood, for appellant/cross-appellee.

Alan D. Sackrin of The Law Offices of Alan D. Sackrin, Hallandale Beach, for appellee/cross-appellant.

SHAHOOD, Judge.

This action arises from a slip and fall accident on the diner's premises. Appellee filed suit against the diner claiming that it negligently maintained machinery on its premises which leaked oil onto the floor, causing her to fall, and that appellant knew or should have known of the dangerous conditions and should have warned her of such conditions.

At trial, appellant testified that as she was following the restaurant's host to a seat, she slipped and fell on her back. She claimed that she followed the host through an area traveled by the servers, away from the customer booths. After the fall, appellant allegedly saw a man with a tool kit working on a piece of machinery and noticed a very light oil, like WD40, on her hands and clothes. She then noticed a waitress and the host wiping up the floor with paper towels.

The owner of the diner testified that a workman from Echo Industrial serviced the diner's refrigeration and air conditioning and that he was on the premises that day, but that the air compressors were on the roof and that the workman had only a tool belt with him.

At trial, appellee moved for directed verdict on the grounds that appellee failed to prove the nature of the substance on the floor, how the substance got on the floor, or how long it had been there. The trial court denied directed verdict on the failure to maintain, but granted directed verdict on the failure to warn. After appellant rested, the court reserved ruling on the parties' renewed motions for directed verdict until after the jury rendered its verdict. The jury returned a verdict finding appellant negligent and the legal cause of appellee's fall.

Appellant filed a post-trial motion for directed verdict, motion to set aside verdict, and to enter judgment in accordance with the motion for directed verdict. After hearing argument, the trial court denied appellant's motion, but expressed doubt as to the soundness of the jury's verdict: "[t]here's no sense in trying to convince me about the right as to cause, because I would have voted the other way. However, it appears as though the verdict is supported by competent evidence enough to get by a directed verdict."

Because there is no competent substantial evidence to support the jury's verdict, we reverse and direct that judgment be entered in favor of appellant.

A motion for directed verdict should be granted only when the evidence, viewed in the light most favorable to the non-moving party, shows that a jury could not reasonably differ as to the existence of a material fact and that the movant is entitled to a judgment as a matter of law. See Barton Protective Servs., Inc. v. Faber, 745 So.2d 968, 972 (Fla. 4th DCA 1999). If there is any evidence to support a possible verdict for the nonmoving party, a directed verdict is improper. See Gold, Vann & White, P.A. v. DeBerry, 639 So.2d 47 (Fla. 4th DCA 1994). Likewise, motions for judgment notwithstanding the verdict, should be resolved with extreme caution. See Cooper Hotel Servs., Inc. v. MacFarland, 662 So.2d 710, 712 (Fla. 2d DCA 1995), review denied, 670 So.2d 939 (Fla.1996).

To establish a breach of a duty in negligence, the plaintiff must show that the defendant failed to maintain its property in a reasonably safe condition, or that it failed to warn the plaintiff of a concealed peril of which it either knew or should have known and which could not have been discovered by the plaintiff through the exercise of ordinary care. See Cooper, 662 So.2d at 712. In a slip and fall action, the plaintiff must generally prove that the owner of the premises had actual or constructive knowledge of the causative condition. See Soriano v. B & B Cash Grocery Stores, Inc., 757 So.2d 514, 515 (Fla. 4th DCA),review granted, 744 So.2d 456 (Fla. 1999). The plaintiff bears the burden of proving that the defendant was negligent, and to that end, the plaintiff must generally prove that the owner of the premises had actual or constructive notice of the dangerous condition. See Thompson v. Poinciana Place Condominium Ass'n, 729 So.2d 457, 458 (Fla. 4th DCA),review granted, 743 So.2d 14 (Fla.1999). Constructive knowledge may be inferred from the amount of time a substance has been on the floor. See Id.

In Soriano, this court held that an inference of the existence of an essential fact to be drawn from circumstantial...