Montgomery v. Florida Jitney Jungle Stores, Inc.
Decision Date | 02 May 1973 |
Docket Number | No. 43048,43048 |
Citation | 281 So.2d 302 |
Parties | Dorothy I. MONTGOMERY and Elbert Montgomery, Petitioners, v. FLORIDA JITNEY JUNGLE STORES, INC., a corporation, and Globe Indemnity Company, Respondents. |
Court | Florida Supreme Court |
R. P. Warfield, Levin, Warfield, Graff, Mabie & Rosenbloum, Pensacola, for petitioners.
Robert P. Gaines, Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for respondents.
This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, First District, reported at 267 So.2d 32. Our jurisdiction is based upon conflict between the decision sought to be reviewed and Jenkins v. Brackin, 1 and Little v. Publix Supermarkets, Inc. 2 The facts of the case are as follows:
Plaintiff, petitioner herein, slipped on a collard leaf on the floor of respondent's grocery store, and sustained serious personal injuries. The accident occurred while plaintiff was a customer in the store. There was no direct evidence submitted as to how the collard leaf got on the floor, or how long it had been there. However, plaintiff did submit evidence that she and her husband had been in the area of the fall for fifteen minutes prior to the accident; that there were no other shoppers around the area where she fell; that no one swept the floor while they were there; and, at the time of the fall, that there were two store employees in that portion of the store where the accident occurred. Plaintiff's husband testified that the collard leaf was old, wilted and dirty looking, and that there was water on the floor at the point where plaintiff fell.
The jury returned a verdict for the plaintiff. On appeal, respondent contended that petitioner could not rely on the foregoing circumstantial evidence as to the length of time the collard leaves had been on the floor, since there was direct testimony, from several employees, that the store employees had swept the floor just before petitioner entered the produce aisle, and that an employee had passed through the area about two minutes before the fall and saw no collard leaves on the floor. The District Court reversed and remanded, with directions to direct a verdict for the defendants on the grounds that the evidence did not show that the collard leaf had been on the floor for such a length of time as to permit discovery by the store employees.
We hereby reverse the District Court, for reasons which will be set out below.
Since there was a conflict in the evidence, the trial court properly submitted the matter to the jury. This principle was aptly enunciated in First Gulf Beach Bank & Trust Company v. Alvarez, 3 which also involved a slip and fall injury:
4
It is fundamental that it is within the exclusive province of the jury to determine the weight of the evidence and its probative force and to reconcile its contradictions, if possible. See e.g., Parsons v. Reyes, 5 Tooley v. Margulies. 6
In affirming a judgment for the plaintiffs in another 'typical slip and fall' case, where the plaintiff wife slipped on a piece of onion top on the floor near some shopping carts, the District Court of Appeal, First District, in Winn-Dixie Stores, Inc. v. Garland, 7 held that:
8
In one of the cases relied upon by petitioners as a basis for conflict jurisdiction, Jenkins v. Brackin, 9 the District Court of Appeal, Second District, reversed a summary judgment for the defendant in a case involving an almost identical factual situation to the case Sub judice. There, the customer slipped on a string bean which was on the floor, two or three feet from the vegetable bin. At the time the accident occurred, the plaintiff and her husband were the only customers in the store for fifteen or twenty minutes prior to her fall. The court recited that there was no evidence from which it could be inferred that this bean was on the floor as a result of an act of the defendant or one of his employees, nor was there any evidence that the defendant had actual knowledge of the dangerous condition of his floor. The plaintiff's theory of liability depended upon whether the evidence brought the case within the rule that the proprietor of a public building may be held liable if, by the exercise of reasonable prudence, he should have discovered the dangerous condition. The Second District held:
10
The only circumstantial evidence in Jenkins was that, for a period of fifteen or twenty minutes prior to the plaintiff's fall, no one examined the floor in front of the vegetable bin where the plaintiff fell and no one swept the floor during that time.
In the other case relied on for jurisdictional purposes, Little v. Publix Supermarkets, Inc., 11 the District Court of Appeal, Fourth District, reversed a directed verdict for the defendant in a slip and fall case. Mrs. Little had fractured her ankle when she slipped on a clear liquid on the defendant's floor. During the time she was in the aisle where her fall occurred, she neither saw nor heard anyone except a woman with whom she spoke for some fifteen to twenty minutes. While she was having this conversation, she heard nothing drop, spill or break, and after her conversation she proceeded down the aisle and, upon encountering the liquid, fell. In holding that this evidence presented a jury issue, the court concluded that a permissible inference to be drawn from the evidence was that the liquid had been on the floor for at least fifteen or twenty minutes. The Fourth District held:
12
In a recent case, Winn-Dixie Stores, Inc. v. Williams, 13 the jury awarded a verdict for the plaintiff in a slip and fall case, and the defendant appealed. The plaintiff was a customer in a grocery store owned by the defendant and, after going to the checkout counter, she returned to pick up an item she had forgotten. While returning to the checkout lane, she slipped upon a sticky substance on the aisle floor and sustained injuries. The defendant's store manager, as in the instant case, testified he inspected the aisle in the area where the plaintiff fell fifteen to twenty minutes prior to the accident and saw no hazardous condition. After noting the general rule that the owner of premises will not be held liable if the record fails to show either how the condition was created, the length of time the condition existed before the accident,...
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