Pensacola Restaurant Supply Co. v. Davison

• Decision Date: 14 September 1972
• Docket Number: No. Q--313,Q--313
• Citation: 266 So.2d 682
• Parties: PENSACOLA RESTAURANT SUPPLY CO., Inc. and Insurance Company of North America, Appellants, v. Verna Mae DAVISON and J. L. Davison, Appellees.
• Court: Florida District Court of Appeals

Page 682

266 So.2d 682

PENSACOLA RESTAURANT SUPPLY CO., Inc. and Insurance Company of North America, Appellants, v. Verna Mae DAVISON and J. L. Davison, Appellees.

No. Q--313.

District Court of Appeal of Florida, First District.

Sept. 14, 1972.

Rehearing Denied Oct. 13, 1972.

Robert P. Gaines, of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellants.

Haygood Thornton, of Hipsh & Thornton, Pensacola, for appellees.

JOHNSON, Judge.

In this negligence action, appellants appeal from a final judgment, entered pursuant to a jury verdict, awarding appellees $11,000.00 for injuries sustained when Mrs. Davison fell in appellant's store.

There are two issues presented for our consideration. The first is whether a verdict should have been directed for appellants under the theory that a mere change in elevation of the floor of a public place cannot constitute negligence as long as it is open and obvious. The second issue is whether the trial court erred in instructing the jury that such a change in elevation can become negligence depending upon circumstances surroundings and other distracting elements or physical features.

The facts of this case are not in dispute. Mrs. Davison was a customer in appellant's store for the purpose of purchasing items which were on display. She had already selected certain items for purchase and was proceeding north toward another area which contained merchandise displayed on a higher level when she struck her toe on the edge of a wooden platform and tripped and fell, sustaining injuries. The floor to the south of the platform was covered with asphalt tile primarily gray in color with some other colors in it. The platform, which was two and one half inches high, was made of wood. The top surface of the platform was painted yellow and the edge of the platform was painted black.

Appellants first state the general rule that a change in elevation cannot constitute negligence unless it is in some way hidden or concealed. It is contended that inasmuch as this particular change in elevation was open and obvious, a verdict should have been directed for the appellants. We do not agree and feel that the issue was one for determination by the jury.

It is common knowledge that there are steps and uneven floor levels in many public places. When these are readily visible, they do not constitute negligence per se on the part of the proprietor. Matson v. Tip Top Grocery Co., Inc., 151 Fla. 247, 9 So.2d 366 (1942); Murdoch v. City of Jacksonville Beach, 197 So.2d 845 (Fla.App.1st, 1967). There is no duty to warn of an obvious condition which is not in itself dangerous. A customer is obligated to exercise a reasonable degree of care for his own safety, which includes observing the obvious and apparent condition of the premises. In cases such as the one presently under consideration, the whole issue is whether the proprietor exercised ordinary care to protect its patrons from injury. It must be determined whether or not the step-down or, as in this case, the step-up under the circumstances, constituted a hidden danger of which a warning should have been given. It must further be determined whether or not the patron exercised reasonable care for his own safety. These are matters to be decided by a jury under appropriate instructions from the court. Van Horn v. Food Service Equipment, Inc., 177 So.2d 528 (Fla.App.2nd, 1965); McRae v. Winn-Dixie Stores, Inc., 227 So.2d 214 (Fla.App.4th, 1969).

This then brings us to the second point on appeal herein, to wit: did the trial judge properly instruct the jury? The instruction given to the jury was as follows:

'It is not negligent to have in a store or other building one floor at a level a few inches different from another floor as long as the difference in elevation is not hidden or concealed, but such may become negligence depending upon circumstances and surroundings and other distracting elements or physical features.'

Appellant contends that it was error to instruct the jury that an elevation change can become negligence if there are 'other distracting elements or physical features.' With this contention, we agree.

An exception to the general rule that it is not negligence per se...