Maas Bros., Inc. v. Bishop, 7446

• Decision Date: 08 November 1967
• Docket Number: No. 7446,7446
• Citation: 204 So.2d 16
• Parties: MAAS BROS., INC., a corporation, Appellant, v. E. Merwin BISHOP and Lake Wales Bank & Trust, as Executor of the Estate of Jean L. Bishop, Deceased, Appellees.
• Court: Florida District Court of Appeals

Page 16

204 So.2d 16

MAAS BROS., INC., a corporation, Appellant, v. E. Merwin BISHOP and Lake Wales Bank & Trust, as Executor of the Estate of Jean L. Bishop, Deceased, Appellees.

No. 7446.

District Court of Appeal of Florida, Second District.

Nov. 8, 1967.

Rehearing Denied Nov. 30, 1967.

John R. Bush, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.

James M. McEwen, of Gibbons, Tucker, McEwen, Smith & Cofer, Tampa, for appellees.

SHANNON, Judge.

Maas Bros., Inc., defendant below, appeals from a judgment entered on a jury verdict awarding damages to E. Merwin Bishop and Lake Wales Bank & Trust in a suit arising out of a fall sustained by Mr. Bishop's deceased wife. (Her death was in no way caused by the fall.) Mrs. Bishop allegedly fell when she slipped on a step in appellant's Tampa store, more specifically on a checkered metal strip which had become slick with wear.

Appellant assigns as error the trial court's denials of its motion to dismiss appellees' third amended complaint, its motions for directed verdict, its motion to set aside the verdict and enter judgment in accordance with its motion for directed verdict, and its alternative motion for new trial. It argues that appellees failed to prove a prima facie case, that Mrs. Bishop was contributorily negligent as a matter of law, that appellees' complaint failed to state a cause of action, and that the trial court erroneously overruled its objection to certain expert testimony offered by appellees.

Appellant contends that appellees failed to prove a prima facie case in that they made no showing of negligence on the part of appellant. It is axiomatic that while a business proprietor is not an insurer of the safety of his invitees, he does own them the duty to exercise reasonable care to keep his premises in a reasonably safe condition. Matson v. Tip Top Grocery Co., 1942, 151 Fla. 247, 250, 9 So.2d 366, 368; Miami Coin-O-Wash, Inc. v. McGough, Fla.App.1967, 195 So.2d 227, 228; Grall v. Risden, Fla.App.1964, 167 So.2d 610, 612--613, cert. denied per curiam, Fla.1965, 174 So.2d 736. This duty includes warning them of latent defects known to him or discoverable by him through the exercise of reasonable care. Hickory House, Inc. v. Brown, Fla.1955, 77 So.2d 249, 252; Messner v. Webb's City, Inc., Fla.1952, 62 So.2d 66, 67; North Broward Hosp. Dist. v. Adams, Fla.App., 143 So.2d 355, 356, cert. denied mem., Fla.1962, 149 So.2d 47, 97 A.L.R.2d 819; Wallace v. Boca Raton Properties, Inc., Fla.App.1958, 99 So.2d 637, 639. Appellant argues that a showing by appellees that it breached its duty to Mrs. Bishop, an invitee, required proof that the step upon which she allegedly slipped was improperly constructed. Merely permitting the metal, strip to become slippery, appellant contends, was as a matter of law not a breach of such duty.

In support of this argument appellant strongly urges the applicability of Bucholtz v. City of Jacksonville, Fla.1954, 72 So.2d 52. In Bucholtz the Florida Supreme Court, in affirming the dismissal of a complaint for its failure to state a cause of action, held that the bare allegation that the City had permitted the treads of the steps outside of its city hall to become worn slick and smooth, and that by reason of such condition the plaintiff therein had slipped and fallen, was insufficient to state a cause of action. 72 So.2d at 53. The Court did indicate, as appellant suggests, that an allegation that the steps had been improperly constructed would have saved the complaint, but it also indicated that an allegation that the steps had contained a hidden defect would have done likewise. 72 So.2d at 52--53. The Court, then, was stating that an allegation of improper construction would have been Sufficient, not that it was necessary. Thus, appellees here, in light of Bucholtz, could have shown negligence on the part of appellant by proving either that the step was improperly constructed or that it contained a hidden defect of which appellant was aware or should have become aware in the exercise of reasonable care for the safety of its patrons.

Appellant contends that appellees failed to establish a prima facie case in a second respect, namely, that a finding that Mrs. Bishop's fall was proximately caused by negligence on appellant's part could be based only on conjecture and the stacking of interdependent inferences. Proof that Mrs. Bishop's slip and fall was proximately caused by appellant's negligence required proof of three evidential facts: (1) Mrs. Bishop in fact slipped on the metal strip; (2) the strip was dangerously slick; and (3) such slickness was the cause of her slipping. Appellant argues that the jury could only infer these three facts from the evidence presented by appellees. We disagree as to the first two.

First, Mrs. Clarenden, the only person who saw Mrs. Bishop fall, testified on direct examination as follows:

'A. I saw her right foot give way and slide along the top of the step, and then she fell * * *.

'Q. Did you notice whether or not her foot, at the time was sliding, her right foot was on this metal rail * * *?

'A. It was, she had just gotten up on that.'

Thus, there was definite evidence to the effect that Mrs. Bishop slipped on the metal strip. On cross-examination Mrs. Clarenden testified:

'Q. You weren't watching Mrs. Bishop's feet as she walked along?

'A. No, I wasn't.

'Q. And your eyes were straight ahead and you were looking inside the body of the store when you first were aware that something took place with respect to Mrs. Bishop?

'A. That's right.

'Q. So that you were not watching her feet as she approached the step, nor were you watching her feet as you prepared to step up the step?

'A. No, I wasn't.

'Q. The thing that attracted your attention, the first thing you knew was she was losing her balance, is that right?

'A. Yes, right.'

This apparent discrepancy, however, went only to the credibility of her testimony and was a factor to be considered by the jury alone. The trial court was not permitted to consider it for purposes of ruling on appellant's motions for directed verdict or its motion to set aside the verdict. Massaline v. Rich, Fla.App., 137 So.2d 10, 12--13, cert. denied mem., Fla.1962, 143 So.2d 492. Thus, Mrs. Clarenden's testimony that Mrs. Bishop slipped on the metal strip had probative value toward appellees' proof of a prima facie case.

Secondly, Mrs. Clarenden and Mr. Bishop both testified that after the accident they had run their feet along the metal strip and had found it to be quite slick. Thus, there was also distinct evidence to the effect that the strip was dangerously slick. Although Mr. Bishop admitted on cross-examination that if he had put his foot on the step in a normal manner he could have walked over it, such admission had the same effect for purposes of a motion for directed verdict as did the above discussed discrepancy in Mrs. Clarenden's testimony. Massaline v. Rich, supra at 12--13.

It is seen, then, that there was actual evidence both to the effect that Mrs. Bishop slipped on the metal strip and to the effect that the strip was dangerously slick. The jury was left with the single permissible inference that the slickness of the strip caused Mrs. Bishop to slip. Accordingly, the trial court would have erred if it had granted appellant's motions for directed verdict or its motion to set aside the verdict on the ground that appellees had failed to prove a prima facie case.

To be considered next is appellant's allegation that Mrs. Bishop was contributorily negligent as a matter of law. As grounds therefor appellant submits that Mrs. Bishop had used the step in question without incident on several prior occasions, that the presence of the metal strip was obvious, and that whatever danger there may have been was patent. The test applicable here was lucidly enunciated by the Florida Supreme Court in City of Jacksonville v. Stokes, Fla.1954, 74 So.2d 278, as follows:

'* * * If visibility alone settled contributory negligence every case of slipping on a floor or of encountering any stationary object would automatically be a case of non-liability for in all ...