Melkonian v. BROWARD CTY. BD. OF CTY. COM'RS, 4D02-800.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: SHAHOOD, J.
• Citation: 844 So.2d 785
• Parties: Armen MELKONIAN and Diana Melkonian, Appellants, v. BROWARD COUNTY BOARD OF COUNTY COMMISSIONERS, Appellee.
• Docket Number: No. 4D02-800.,4D02-800.
• Decision Date: 14 May 2003

844 So.2d 785

Armen MELKONIAN and Diana Melkonian, Appellants, v. BROWARD COUNTY BOARD OF COUNTY COMMISSIONERS, Appellee.

No. 4D02-800.

District Court of Appeal of Florida, Fourth District.

May 14, 2003.

Barbara J. Compiani of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach and Theodore L. DiSalvo of Kogan & DiSalvo, P.A., Boca Raton, for appellants.

Edward A. Dion, County Attorney for Broward County, Andrew J. Meyers, Chief Appellate Counsel, and Tamara M. Scrudders, Assistant County Attorney, Fort Lauderdale, for appellee.

SHAHOOD, J.

The sole issue presented in this appeal is whether the trial court improperly provided the jury with instructions which were confusing, misleading, and inaccurate, thereby resulting in prejudice to appellants. We agree with appellants and reverse and remand for a new trial.

Appellants, Armen and Diana Melkonian, filed a negligence action against the Broward County Board of County Commissioners for damages resulting from injuries sustained in a slip and fall by Mr. Melkonian at the North Regional Broward County Courthouse on November 15, 1996. Appellants alleged that while on his way to the Department of Motor Vehicles at the courthouse, Melkonian slipped and fell on water which had accumulated on the tile floor near the entrance way.

During appellants' case, counsel raised an issue as to the appropriateness of the jury instructions in light of the recent decision in Owens v. Publix Supermarkets, Inc., 802 So.2d 315 (Fla.2001), released shortly before trial.¹

Prior to Owens, Florida courts required that in slip-and-fall cases concerning a transitory foreign substance, the injured person had to prove that the premises owner had actual or constructive knowledge of the dangerous condition in that the condition existed for such a length of time that in the exercise of ordinary care, the premises owner should have known of it and taken action to remedy it. See id. at 320.

In Owens, the Florida Supreme Court reexamined that practice and decided to eliminate the plaintiff's burden to prove that the business owner had actual or constructive notice of the substance. The court, in its opening paragraph, held that "[f]or the reasons that follow, we hold that where a plaintiff slips and falls on a transitory foreign substance in a defendant's business premises, once the plaintiff establishes that he or she fell as a result of that transitory foreign substance, the burden shifts to the defendant to produce evidence that it exercised reasonable care under the circumstances." Id. at 317. In a footnote, the court defined "transitory foreign substance" as follows: "we refer generally to any liquid or solid substance, item or object located where it does not belong." Id. at 317 n. 1.

Following an in-depth analysis regarding slip-and-fall cases involving transitory foreign substances, the Owens court presented its full holding:

Accordingly, we adopt the following holding to be applied to slip-and-fall cases in business premises involving transitory foreign substances. We hold that the existence of a foreign substance on the floor of a business premises that causes a customer to fall and be injured is not a safe condition and the existence of that unsafe condition creates a rebuttable presumption that the premises owner did not maintain the premises in a reasonably safe condition.

Thus, once the plaintiff establishes that he or she fell as a result of a transitory foreign substance, a rebuttable presumption of negligence arises. At that point, the burden shifts to the defendant to show by the greater weight of the evidence that it exercised reasonable care in the maintenance of the premises under the circumstances.

802 So.2d at 331.

The trial court stated that in its opinion, Owens dealt "with foreign substances that have been on the floor; you know, bananas, banana peels, lettuce leaves. Rainwater is not a foreign substance, the ilk of which they're discussing, natural rain water is not the kind of cases they're talking about." Appellants' counsel pointed out the Owens court's footnote defining foreign transitory substances, but the trial court would not retract its opinion.

The trial court stated that it would give an instruction "parallel" to the abbreviated holding at the beginning of the Owens decision but declined to consider the elaborated holding at the close of the decision.

At the close of appellants' case, both appellants and the County presented special instructions and objected when the trial court indicated that although it did not believe that an Owens instruction was appropriate, it was going to follow the holding at the beginning of the Owens decision. The court chose to write out the instruction as follows:

All right, here's the instructions I'm going to give: If the plaintiff proves from the greater weight of the evidence that he slipped and/or fell as a result of the transitory foreign substance while in or around the defendant's premises, then the testimony [sic] must produce evidence that it exercised reasonable care under the circumstances, translating the word establishes in the holding in this opinion to mean prove by the greater weight of the evidence.

That's the most reasonable interpretation I can give it. So and I will slip that in.

Both parties objected to this instruction.

Appellants' counsel then inquired whether, in light of the special instruction, standard jury instruction 3.5 was necessary. The court disagreed with appellants' counsel's argument that Owens removed the burden of a plaintiff to show that a defendant knew or should have known of the condition, and had established constructive knowledge of its existence. Appellants objected to the inclusion of jury instruction 3.5.

Standard jury instruction 3.5(f) provided as follows:

The issues for your determination on the claim of ARMEN MELKONIAN and DIANA MELKONIAN is whether BROWARD COUNTY negligently failed to maintain its premises in a reasonably safe condition, or negligently failed to correct a dangerous condition of which BROWARD COUNTY either knew or should have known by the use of reasonable care, or negligently failed to warn ARMEN MELKONIAN of a dangerous condition concerning which BROWARD had, or should have had, knowledge greater than that of ARMEN MELKONIAN, and whether or not the negligence of the Defendant was the legal cause of any loss, injury or damage to either or both of the Plaintiffs.

As a result, the court instructed the jury with a "parallel" Owens instruction and a paraphrased standard jury instruction 3.5(f), which stated in relevant part, as follows:

Now the issues for your determination in this case on the claim of the plaintiffs is whether or not Broward County was negligent. Now on the premises liabilities causes there is three different ways you can be negligent under the law. So the claim of plaintiffs is that they were negligent and they either negligently failed to maintain the premises in a reasonably safe condition or negligently failed to correct a dangerous condition of which Broward County either knew or should have known by the use of reasonable care or negligently failed to warn the

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