Owens v. Publix Supermarkets, Inc., No. SC95667

• Court: United States State Supreme Court of Florida
• Citation: 802 So.2d 315
• Docket Number: No. SC96235., No. SC95667
• Parties: Evelyn OWENS and John Owens, Petitioners, v. PUBLIX SUPERMARKETS, INC., Respondent. Elvia Soriano and Angel Soriano, Petitioners, v. B & B Cash Grocery Stores, Inc., etc., Respondent.
• Decision Date: 15 November 2001

802 So.2d 315

Evelyn OWENS and John Owens, Petitioners, v. PUBLIX SUPERMARKETS, INC., Respondent.

Elvia Soriano and Angel Soriano, Petitioners, v. B & B Cash Grocery Stores, Inc., etc., Respondent.

Nos. SC95667, SC96235.

Supreme Court of Florida.

November 15, 2001.

Rehearing Denied December 14, 2001.

B.C. Muszynski, Kissimmee, Florida; and Bambi G. Blum, and Simon & Dondero, P.A., Miami, FL, for Petitioners.

Michael V. Hammond and Richard S. Womble of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, FL, for Respondents.

Joseph H. Williams of Troutman, Williams, Irvin, Green & Helms, P.A., Winter Park, FL, for the Academy of Florida Trial Lawyers, Amicus Curiae, in support of Elvira Soriano, et al., Petitioners.

PARIENTE, J.

We have for review Owens v. Publix Supermarkets, Inc., 729 So.2d 449 (Fla. 5th DCA 1999) (en banc), and Soriano v. B & B Cash Grocery Stores, Inc., 757 So.2d 514 (Fla. 4th DCA 1999), based on express and direct conflict with Teate v. Winn-Dixie Stores, Inc., 524 So.2d 1060 (Fla. 3d DCA 1988), on the issue of whether, in a slip and fall case, the condition of a transitory foreign substance¹ is itself sufficient to establish constructive knowledge. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.² For 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.

FACTS

1. Owens

Evelyn Owens ("Owens"), along with her husband John Owens, brought this personal injury action against Publix Supermarkets, Inc. ("Publix"). Owens was a part-time employee in the Publix bakery. On March 4, 1995, after she completed her work for the day, Owens "clocked out" but stayed at Publix to do some grocery shopping. While walking down an aisle, Owens slipped and fell on a discolored piece of banana lying on the floor.

At trial, Owens did not present any direct evidence of the length of time the piece of banana was on the floor. In fact, Owens testified that she did not see the substance that had caused her to fall. Owens did, however, present the testimony of Alma Jean Ross, another shopper in the store, who testified that she was walking down the chip and bread aisle at the same time as Owens and that Owens had slipped on "a piece of banana" without the peel, which was about an inch or longer and "kind of mushed ... where she hit it ... kind of squashed down." When asked if the banana was discolored, Ross responded, "Very much, uh-huh. It wasn't black, but it was dark." Ross further testified that she had been at Publix "[a]bout three or four minutes" before encountering Owens, but admitted she had no knowledge of how long the banana had been on the floor.

As to the maintenance and inspection of the floors, there was evidence that it was the responsibility of Publix employees to look out for items on the floor and that managers would walk the store, "inspecting everything." However, Publix did not keep inspection records and there was no evidence presented as to when the particular aisle was last inspected.³

After Owens presented her case-in-chief, Publix moved for a directed verdict on liability, arguing that Owens failed to present any evidence that Publix had actual or constructive knowledge that the banana piece was on the floor. Finding that the evidence of the condition of the banana was insufficient to establish a basis for Publix's liability, the trial court directed a verdict and entered final judgment for Publix.

On appeal, a panel of the Fifth District reversed the granting of the directed verdict, see Owens v. Publix Supermarkets, Inc., 23 Fla. L. Weekly D2655 (Fla. 5th DCA Dec.4, 1998), reh'g en banc granted and opinion withdrawn, 729 So.2d at 449, but upon rehearing en banc, the Fifth District affirmed the trial court's directed verdict in favor of Publix. In affirming the trial court, the Fifth District framed the issue in the case as follows: "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?" Owens, 729 So.2d at 449. The Fifth District answered the question by explaining, "it depends on the other circumstances of the case." Id. Based upon the other circumstances in this particular case, the Fifth District concluded that because at least two theories existed as to how the banana peel got on the floor, it was the plaintiff's obligation to prove that the aging occurred on the floor. See id. at 450. The Fifth District held that to justify the inference that Publix had constructive knowledge of the condition,

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 plaintiff's obligation, in order to show constructive knowledge, to prove that the aging occurred on the floor, the directed verdict was proper.

Id. at 450.

In reaching this result, the Fifth District distinguished our opinion in Montgomery v. Florida Jitney Jungle Stores, Inc., 281 So.2d 302 (Fla.1973), reasoning that the plaintiff in Montgomery, who slipped and fell on a collard leaf 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."

Owens, 729 So.2d at 449-50.

In a dissenting opinion, Judge Sharp disagreed with the majority that our decision in Montgomery necessarily stood for the proposition that additional circumstances other than the aged condition of the foreign substance were required in order to survive a directed verdict or summary judgment motion. See id. at 452 (Sharp, J., dissenting). Judge Sharp concluded that in Owens, the aged food item or its deteriorated condition was sufficient evidence to create a jury issue on constructive notice from which a jury could find that the "offending piece of banana" had been on the floor of the supermarket a sufficiently long period of time so that Publix, in its capacity as owner-operator, should have discovered it and cleaned it up. See id. at 452 (Sharp, J., dissenting).

2. Soriano

Like Evelyn Owens, Elvia Soriano also injured herself when she slipped and fell on a discolored piece of banana in a grocery store. See Soriano, 757 So.2d at 515-16

. As stated in the Fourth District's opinion:

The store employee who helped Mrs. Soriano to her feet took a piece of banana peel off her shoe. Mrs. Soriano described the piece of peel as being brown with very little yellow in color.

The store manager testified that the store tried not to sell brown bananas, as customers generally do not like to buy bananas after they turn brown. Mrs. Soriano acknowledged, however, that the store did sell brown bananas with skin like the piece on which she slipped.

Id. at 515.

At trial, Jose Alvarez, the former store manager of B & B Cash Grocery Store ("B & B") testified that the store kept daily inspection reports "to remind us to check the store on an hourly basis." Nevertheless, when asked if the store in general was swept hourly, Alvarez replied, "To be honest, no. We try to do it but, no. We tried to sweep as many times as we could." Alvarez conceded that no one was assigned the duty to sweep the floors at a certain time every day, and that all of the daily inspection reports were completed at one time. He admitted that the reports, which indicated that someone went around inspecting at a specific time, were false. Alvarez further stated that he was aware that these inspection reports were being falsified, that everyone at the management level of the store knew about it, and that an assistant manager who came from another store told him that it was done that way in every store in which he had worked. Moreover, Alvarez conceded that there were no sweeping records for the day of Soriano's accident.

In addition, Alvarez testified that customers "all the time" would "partake of the food in the store before they get to the cash registers." He also admitted that on occasion customers would eat the fruit that was for sale in the store and on occasion customers would drop the food they were eating.

After the close of Soriano's case, the trial court directed a verdict for B & B, concluding that the evidence was insufficient to show actual or constructive notice. In affirming the granting of a directed verdict, the Fourth District adopted the reasoning of Owens that "in order to show constructive knowledge, the plaintiff had the obligation to prove that the aging occurred on the floor." Soriano, 757 So.2d at 516. The Fourth District rejected Soriano's contention that the circumstantial evidence was sufficient for the jury to infer constructive notice:

We conclude that the circumstantial evidence in this case required the impermissible stacking of inferences to establish constructive notice. As such, we cannot infer, as Appellant contends, that the supermarket only sells yellow bananas, that it must have been yellow when it reached the floor, and that it sat on the floor until it turned brown. The inference is just as likely in such a case that someone had purchased the brown banana and dropped it on the floor in that

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