Maryland Maintenance Service, Inc. v. Palmieri

• Decision Date: 23 January 1990
• Docket Number: No. 88-1802,88-1802
• Parties: 15 Fla. L. Weekly D246 MARYLAND MAINTENANCE SERVICE, INC., Appellant, v. Vittorio PALMIERI and Bertha Palmieri, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 74

559 So.2d 74

15 Fla. L. Weekly D246

MARYLAND MAINTENANCE SERVICE, INC., Appellant, v. Vittorio PALMIERI and Bertha Palmieri, his wife, Appellees.

No. 88-1802.

District Court of Appeal of Florida,

Third District.

Jan. 23, 1990.

Rehearing Denied April 20, 1990.

Lanza, O'Connor, Armstrong, Sinclair & Tunstall, Coral Gables, and Rhea P. Grossman, Miami, for appellant.

Horton, Perse & Ginsberg and Guillermo Sostchin, Miami, for appellees.

Before NESBITT, COPE and GERSTEN, JJ.

GERSTEN, Judge.

Appellant, Maryland Maintenance Service, Inc. (Maryland Maintenance), appeals from a final judgment and cost judgment in favor of appellees Vittorio Palmieri and Bertha Palmieri, his wife, on the Palmieris' claims for damages arising from a slip and fall. We affirm.

Maryland Maintenance had a written contract with Calder Race Course (Calder) for providing cleaning and custodial services during racing meets at Calder. Under the agreement, Maryland Maintenance was responsible for providing cleaning and custodial services to areas of Calder including the clubhouse, grandstands, floors, seating areas and stairways.

On December 21, 1984, Vittorio Palmieri was injured while attending the race meet at Calder, when he slipped and fell in the outside seating area. The accident occurred at around 3:30 p.m., during betting time. Vittorio Palmieri brought suit against Maryland Maintenance and Calder for personal injury damages, and Bertha Palmieri, his wife, brought suit against them for loss of consortium.

At trial, Vittorio Palmieri testified that after he fell, he put his hand down and felt something wet and that his clothing was wet, as well. Mr. Palmieri stated that he was a frequent visitor to Calder and that he had never seen anyone inspecting or cleaning the outside seating area on a routine basis. Mr. Palmieri also said that patrons ate food and consumed beverages in the outside seating area and that during the course of a race day, the area would become sloppy and dirty.

A witness to Mr. Palmieri's accident testified that there was a pool of liquid at the place where Mr. Palmieri fell. According to the witness, the liquid had to have been there for at least a couple of races because it was dirty. The witness concurred with Mr. Palmieri's testimony that during the course of the day the outside seating area would become sloppy and dirty. Further, the witness stated that the floor also would become strewn with newspapers, racing forms, soda and beer containers, and food.

A Calder security guard testified that there was a spill at the site of the accident, but that he did not know how long the spill had been there. The security guard also stated that patrons would usually report spills in the seating area, and then he would cover the spill with paper so it could be seen. He would then get the cleaning crew to clean it up.

The manager for Maryland Maintenance testified that it was industry practice not to clean the outside seating area during racing time. He further stated that the area became sloppy and messy by the end of the race day.

A Calder manager testified he understood that Maryland Maintenance employees were not assigned on a routine basis to clean up spills in the outside seating area during betting hours because of inconvenience to patrons. However, the Calder manager stated that when Maryland Maintenance was notified of a spill or garbage in the outside seating area during betting hours, an employee of Maryland Maintenance would be dispatched to clean it up. According to the Calder representative, this procedure was not set forth in any contract between Maryland Maintenance and Calder. He also agreed with the testimony of Maryland Maintenance's manager that it was industry practice not to clean the outside seating area during the race day.

At the close of the evidence presented by the Palmieris and at the conclusion of all the trial evidence, Maryland Maintenance moved for a directed verdict, which the trial court denied. The jury subsequently returned a verdict in favor of the Palmieris, awarding damages against Calder and Maryland Maintenance in the amount of $106,600.00. Following the jury verdict, Maryland Maintenance moved for a judgment notwithstanding the verdict or for a new trial, which the trial court denied. The trial court then entered a final judgment pursuant to the jury verdict, and also entered a cost judgment in favor of the Palmieris, against Calder and Maryland Maintenance. Maryland Maintenance subsequently brought this appeal.

Maryland Maintenance contends the trial court erred in denying its motions for a directed verdict or judgment notwithstanding the verdict because: (1) as an independent contractor employed by Calder, Maryland Maintenance owed no legal duty to the Palmieris; and (2) assuming arguendo the existence of a legal duty, the Palmieris failed to prove that Maryland Maintenance did not exercise reasonable care in its procedures.

On Maryland Maintenance's first contention, we rule that Maryland Maintenance owed a legal duty to the Palmieris. Maryland Maintenance had a contract with Calder for providing cleaning and custodial services during racing meets. The contract specifically provided for Maryland Maintenance to be responsible for areas of Calder, including the seating areas. Nowhere in the contract did it state that these services were not to be provided on a routine basis during the race day. The rule is well settled that privity is not an element of a cause of action in tort. A.R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla.1973); Navajo Circle, Inc. v. Development Concepts Corporation, 373 So.2d 689 (Fla. 2d DCA 1979). Further, a defendant's liability extends to persons foreseeably injured by his failure to use reasonable care in performance of a contractual promise. Navajo Circle, Inc. v. Development Concepts Corporation, 373 So.2d at 691-692; Luciani v. High, 372 So.2d 530 (Fla. 4th DCA 1979); Gallichio v. Corporate Group Service, Inc., 227 So.2d 519 (Fla. 3d DCA 1969); see Gelman v. Miami Elevator Company, 242 So.2d 156 (Fla. 3d DCA 1970).

This case is similar to Gelman v. Miami Elevator Company, 242 So.2d at 156. In Gelman, a patron of a store was injured as he was alighting from an elevator. The patron brought suit against the company responsible for maintaining the mechanical condition of the elevator. The trial court entered summary judgment in favor of the maintenance company on the ground that the service contract between the store proprietor and the maintenance company was not of benefit to business invitees. This court reversed, recognizing, "[s]uch actions have been held to be maintainable by an injured member of the public against a party responsible by contract for the maintenance." Gelman, 242 So.2d at 157. Here, Maryland Maintenance was responsible by contract for cleaning and custodial services at Calder, and it may be held liable to members of the public, such as the Palmieris, for its negligence in performing that contract.

We next consider Maryland Maintenance's second contention. In this contention, Maryland Maintenance argues the Palmieris failed to prove that Maryland Maintenance did not exercise reasonable care. We are not persuaded. We find that the Palmieris did present sufficient evidence to raise a question for the jury regarding Maryland Maintenance's failure to use reasonable care in its procedures.

In order for a plaintiff to recover for injuries received in a slip and fall, the plaintiff must show that the defendant responsible for the premises had actual or constructive notice of the dangerous condition. Nance v. Winn Dixie Stores, Inc., 436 So.2d 1075 (Fla. 3d DCA 1983), review denied, 447 So.2d 889 (Fla.1984). Constructive notice may be shown by presenting evidence that the condition existed for such a length of time that in exercise of ordinary care, the defendant should have known of the condition, Nance v. Winn Dixie, 436 So.2d at 1076; Schmidt v. Bowl America Florida, Inc., 358 So.2d 1385 (Fla. 4th DCA 1978); Sabugo v. GDS Drugs, Inc., 350 So.2d 22 (Fla. 3d DCA 1977); Winn Dixie Stores, Inc. v. Williams, 264 So.2d 862 (Fla. 3d DCA 1972), or by showing that the condition occurred with regularity and, consequently, was foreseeable, Fazio v. Dania Jai-Alai Palace, Inc., 473 So.2d 1345 (Fla. 4th DCA 1985); Nance v. Winn Dixie Stores, Inc., 436 So.2d at 1077; See McCurry v. Investment Corporation of Palm Beach, 548 So.2d 689 (Fla. 4th DCA 1989).

In the present case, sufficient evidence was presented for the jury's consideration regarding Maryland Maintenance's constructive notice of the liquid on the floor. Evidence was presented that the liquid had to have been there for at least several races and that there was an ongoing problem with waste on the floor. Moreover, the Florida Supreme Court has stated that "reasonable care as applied to a race...