Owens v. Publix Supermarkets, Inc.

• Decision Date: 12 March 1999
• Docket Number: No. 98-683.,98-683.
• Citation: 729 So.2d 449
• Parties: Evelyn OWENS and John J. Owens, her husband, Appellants/Cross-Appellees, v. PUBLIX SUPERMARKETS, INC., Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

729 So.2d 449

Evelyn OWENS and John J. Owens, her husband, Appellants/Cross-Appellees, v. PUBLIX SUPERMARKETS, INC., Appellee/Cross-Appellant.

No. 98-683.

District Court of Appeal of Florida, Fifth District.

March 12, 1999.

Rehearing Denied April 22, 1999.

B.C. Muszynski, Kissimmee, for Appellants/Cross-Appellees.

Richard S. Womble and Gregory D. Prysock, of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appellee/Cross-Appellant.

ON MOTION FOR REHEARING EN BANC

HARRIS, J.

We grant the appellee's Motion for Rehearing En Banc filed with this court on December 21, 1998. We withdraw our previous opinion released December 4, 1998, and substitute this opinion. We deny appellee's Motion for Rehearing and Clarification. We also deny appellee's Motion for Certification.

The question in this case is whether a plaintiff who fell in a supermarket can get to the jury by merely showing that she fell on a "slightly discolored" banana fragment lying on the floor. The trial court granted a directed verdict for the defendant because the evidence was insufficient to show that defendant had any knowledge, actual or constructive, that the banana fragment was there.

The supreme court in Montgomery v. Florida Jitney Jungle Stores, Inc., 281 So.2d 302 (Fla.1973), established that there is no owner liability in situations such as this unless sufficient proof of knowledge of the dangerous condition, actual or constructive, is shown. The court stated:

There are a number of Florida cases holding that a store owner is not liable for injuries sustained by customers who slipped and fell as a result of a foreign substance on the floor, when the customers cannot prove how the foreign substance got on the floor, or who put it there, or how long it had been there. In each of these cases, however, when the facts are carefully analyzed, there is no proof, either direct or circumstantial that would give rise to an inference that the foreign substance had been on the floor for a sufficient length of time to charge the store owner with constructive knowledge of its presence.

Id. at 306.

Does the fact that a piece of discolored banana is found on the floor give rise to an inference that the banana fragment had been there long enough to give this critical constructive knowledge? The answer is that it depends on the other circumstances of the case. In Montgomery, the plaintiff was able to present additional circumstances to establish the span of time the leaf had been on the floor. These additional circumstances were:

(1) Plaintiff and her husband had been in the area of the fall for fifteen minutes prior to the accident;

(2) No other shoppers were around the area where she fell;

(3) No one swept the floor during that period;

(4) During this period, two store employees were in the area;

(5) Not only was the leaf wilted but it was also "dirty looking."

This testimony indicates that if the plaintiff is believed, the leaf was on the floor for at least 15 minutes and that it was, or should have been, observed by two of the store's employees. The supreme court approved the holdings of other slip and fall cases holding that if something is on the floor for 15-20 minutes, the store may be charged with such knowledge. Montgomery is consistent with those cases. But in this case, there was simply no additional circumstantial evidence to raise an inference of constructive knowledge which would permit plaintiff to withstand a motion for directed verdict.

In Bates v. Winn-Dixie Supermarkets, Inc., 182 So.2d 309 (Fla. 2d DCA 1966), the court was asked by plaintiff to infer that the banana peel had been on the floor long enough to give constructive knowledge because the peel was "dark," "over ripe," "black," "old," and "nasty looking." The court refused stating:

We are not permitted to indulge in constructing one inference upon another. Food Fair Stores, Inc. v. Trusell, 131 So.2d 730 (Fla.1961). There the Florida Supreme Court stated, at page 733:

"* * *It is apparent that a jury could not reach a conclusion imposing liability of the petitioner without indulging in the prohibited mental gymnastics of constructing one inference upon another inference in a situation where, admittedly, the initial inference was not justified to the exclusion of all other reasonable inferences. * * *"

In the instant case, to infer from the color and condition of the peeling alone that it had been there a sufficient length of time to permit discovery, we would first have to infer that the banana peel was not already black and deteriorated when it reached defendant's floor. This is the type of "mental gymnastics" prohibited by the Trusell decision, supra, since the latter inference, under the circumstances, is not to the exclusion of all other reasonable inferences.

Id. at 310-11.

To justify the inference sought by plaintiff herein, we would have to assume that the aging of the banana fragment occurred on the floor of the market and not in the store's fruit bin from which it was taken by a customer and a portion given to an infant being pushed in a shopping cart who dropped it on the floor shortly before plaintiff came along. Although either possibility exists, since it is plaintiffs obligation, in order to show constructive knowledge, to prove that the aging occurred on the floor, the directed verdict was proper.

AFFIRMED.

GRIFFIN, C.J., COBB, GOSHORN, PETERSON, THOMPSON and ANTOON, JJ., concur.

W. SHARP, J., DISSENTS, WITH OPINION, IN WHICH DAUKSCH, J., concurs.

W. SHARP, J., dissenting.

In my view, the trial court erred in directing a verdict for appellee, Publix, because there was sufficient evidence adduced at trial to support a finding by the jury that the piece of banana which caused the appellant, Owens, to slip and fall in the store, had been lying on the floor a sufficiently long time to charge Publix with constructive notice of its presence. The majority opinion ignores precedent in this state and elsewhere, and embraces the impermissible inference on an inference rationale, which was abandoned twenty years ago. I submit this is a great leap in the wrong direction.

Owen's theory of liability in this case turned solely on the theory that the offending piece of banana had been on the floor of the supermarket a sufficiently long time that Publix in its capacity as owner-operator of the store, should have discovered it and cleaned it up, and that failure to do so under the circumstances constituted negligence on its part.¹ Although Owens did not see the substance on which she slipped and fell, another customer in the store, Mrs. Alma Jean Ross, testified she was next to Owens in the chips and bread aisle when Owens fell. She stayed with her until the ambulance came, and she saw the substance that had caused the fall.

Ross testified she observed no one in the aisle where the fall occurred when she entered the store. The piece of banana was discolored, kind of mushed, and squashed down. When asked if it was discolored, she said: "Very much, uh-huh. It wasn't black but it was dark." The squashed part was darker, the color of wood. She surmised "it had been there a bit."

In granting a directed verdict for Publix, the trial court (as well as the majority opinion in this appeal) relied on Bates v. Winn-Dixie Supermarkets, Inc., 182 So.2d 309 (Fla. 2d DCA 1966). There an argument similar to the one put forward by Owens in this case was made by a plaintiff-customer who had tripped on a black, discolored banana peel in the store. The court said such an argument would require the jury to "tack" an impermissible inference on an inference.

[T]o infer from the color and condition of the peeling alone that it had been there a sufficient length of time to permit discovery, we would have to infer that the banana peel was not already black and deteriorated when it reached defendant's floor.

Bates, 182 So.2d at 310. In other words, reliance on the aged appearance of the food item on the floor was not a sufficient basis to infer it had been there any time at all.

In support of this inference-on-an-inference rationale, the Bates court cited Food Fair Stores, Inc. v. Trusell, 131 So.2d 730 (Fla.1961). In that case there was no evidence about who dropped the offending piece of lettuce, and no evidence concerning the age or dirty condition of the lettuce. Thus the court affirmed a summary judgment for the defendant store. This case clearly does not support the inference-on-an-inference rationale articulated in Bates.

In the Trusell case, Justice Thornal cited to a prior case in which he had written the majority opinion, Food Fair Stores of Florida, Inc. v. Patty, 109 So.2d 5 (Fla.1959). There he explained that in slip and fall cases in a supermarket, a plaintiff can establish negligence in one of two ways. First, by proving that an employee or agent of the store dropped the food item on the floor, i.e., direct negligence. In such cases, the length of time it remained on the floor...