Pogue v. Great Atlantic & Pacific Tea Company

• Decision Date: 10 May 1957
• Docket Number: No. 16254.,16254.
• Citation: 242 F.2d 575
• Parties: Marie E. POGUE and William T. Pogue, Appellants, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

242 F.2d 575 (1957)

Marie E. POGUE and William T. Pogue, Appellants, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, Appellee.

No. 16254.

United States Court of Appeals Fifth Circuit.

April 2, 1957.

Rehearing Denied May 10, 1957.

Paul G. Hyman, R. E. Hodges, Miam, Fla., Britton, Hodges & Hyman, Miami, Fla., for appellants.

Goble D. Dean, Miami, Fla., Brown, Dean, Adams & Fischer, Miami, Fla., for appellee.

Before RIVES, TUTTLE and BROWN, Circuit Judges.

RIVES, Circuit Judge.

In an action by a customer against a storekeeper to recover for injuries suffered when the customer slipped and fell in the store, one district judge, Honorable John W. Holland, denied defendant's motion for summary judgment on November 16, 1953, but two and one-half years later, on June 19, 1956, another district judge, Honorable Joseph P. Lieb, entered summary judgment for the defendant. From that judgment this appeal is prosecuted.

In reviewing the summary judgment, we need consider only that evidence most favorable to the party against whom the judgment was rendered, giving that party the benefit of all favorable inferences that may reasonably be drawn from the evidence.¹ So considering the record, the appellee does not controvert, and we find supported, the following facts as stated in appellants' brief:

"On December 24, 1951, the defendant owned and operated a supermarket in Coral Gables, Florida. On that date the plaintiff wife went into such market as a customer.

This was the first time that she had ever been in this store. From the point of entry to the store aisle approximately 20 feet wide extended lengthwise across the front of the store with the entrance into the shopping area at the end opposite from the outdoor entrance. Nine check out booths and exit aisles were located along the inner side of such aisle. All customers entering the store were required to pass through this front aisle in front of the check out booths in order to pass into the store proper.

"The regular and customary operation of the store required that the customers would secure a basket, push it through the store placing their purchases therein and then check out by pushing these baskets through the exit aisles adjacent to the check out booths. Defendant\'s employees removed the purchased articles from the baskets, totaled the bill, collected therefor, and placed the articles in paper sacks.

"Fresh vegetables, including lettuce and carrots were not packaged, and pieces of such vegetables frequently broke off in the baskets and remained there after the purchases had been removed.

"The exit aisles were narrow and a customer could not pass out of them unless and until the basket was first pushed out. This was sometimes done by the customer, but often by an employee of defendant. After the baskets were pushed out of the exit aisle, they were often permitted to accumulate in the main entrance aisle across the front of the store.

"As they were pushed out into the main entrance aisle, the baskets often bumped into and against other baskets which had accumulated there. The bumping together of the baskets frequently caused pieces of vegetables remaining therein to fall onto the floor of the main entrance aisle. As a result of the customary operations of the defendant, the aisle was often littered with such pieces of vegetables. The manager of the store was familiar with this condition and had instructed the checkers and bag boys to pick up the pieces of vegetables remaining in the basket.

"The number of baskets permitted to accumulate in the main entrance aisle and number of pieces of vegetables that accumulated on the floor of such aisle, were directly proportionate to the amount of business the store was doing on any given day. December 24, 1951, the day of the injury, was an extremely busy day."

It further appears, that on that day at about 1:45 P.M., the plaintiff wife, 70 years of age, entered the store as a customer and what happened when she was about halfway across the main entrance aisle, walking toward a check out booth which was not in operation, is best described in her own words:

"Well, when I first went into the store I looked at the location and how things were. I wanted to locate the bakery department. I saw the vegetable department there, and I saw the stile — the entrance to the main part of the store — but I didn\'t want to go that far down. I was looking for a place where there was no checking, so I could go through there and locate the bakery department and pick up the pie if they had one. I was about halfway in when I slipped on this lettuce and carrot tops — I found them clinging to my foot afterwards — and when I first slipped on it, it threw me backwards, but I caught myself. I felt that I had injured my back at the time through my running forwards on my toes, to catch myself. Then I put my right foot down again flat, thinking that perhaps I had lost whatever it was I had stepped on, and I slipped again and went backwards right into some baskets, and I fell from one basket to the other, and then onto the floor."

She was badly injured.

Apparently Judge Lieb accepted the argument of defendant's counsel, renewed upon appeal, that during the two and one-half years after Judge Holland had denied the defendant's first motion for summary judgment, "considerable new Florida law was in effect." In effect, the position of the defendant, appellee, is that before liability can be fastened on the storekeeper he must have had notice or knowledge of the presence of the debris on the floor, and that to establish notice or constructive knowledge, there must be evidence that it had been there a sufficient time for the storekeeper, in the exercise of reasonable care and diligence, to have found and removed it. The plaintiff, appellant, concedes that, as to the particular lettuce leaf and carrot tops, no such evidence was available. She relies instead upon evidence tending to show that the storekeeper, by his method of operation, had created a dangerous condition which caused the presence on the floor of the foreign material in question, and that, under such circumstances, the plaintiff is not required to introduce further proof.

Similar contentions were presented to the Florida Supreme Court in 1948 in an action for personal injuries brought against the operator of a dog race track, and were thus answered by the Court:

"The motion for an instructed verdict appears to have been made and granted on the theory that the evidence in a case like this must show that the owners of the race track or their agents must have had actual or constructive knowledge of the presence of the bottle from which plaintiff was injured, and that if constructive knowledge is relied on, the evidence must show that it had been there a sufficient time for the owners, in the exercise of reasonable care and diligence, to have found and removed it. They contend that the evidence in this case is completely devoid of any such showing.

"It is true that such a rule has been imposed on stores, banks, shops and other business places of that character, but we think a different rule applies to a place of amusement like a race track where patrons go by the thousand on invitation of the proprietors, and are permitted to purchase and drink bottled beverages of different kinds and set the empty bottles anywhere they may find space to place them. It is charged that the day that plaintiff was injured was the last day of the racing season, that the crowd was large and that many patrons were directed to sit in the exit aisles, drink from bottles and deposit the empty bottles anywhere they could find space for them.

"Places of amusement where large crowds congregate are required to keep their premises in reasonably safe condition commensurate with the business conducted. If the owner fails in this, and such failure is the proximate result of injury to one lawfully on the premises, compensatory damages may be recovered if the one injured is not at fault. J. G. Christopher Co. v. Russell, 63 Fla. 191, 58 So. 45, text 47, Ann.Cas.1913C, 564. One operating a place of amusement like a race course where others are invited is charged with a continuous duty to look after the safety of his patrons. Both sanitary and physical safety of its patrons require that receptacles be provided for bottles and that they be so placed.

"We do not mean to imply that they are insurers of the safety of their patrons, but we do say that reasonable care as applied to a race track requires a higher degree of diligence than it does when applied to a store, bank or such like place of business. Numerous cases support this conclusion. * * *." Wells v. Palm Beach Kennel Club, 160 Fla. 502, 35 So.2d 720, 721.

In 1951 in the case of Carl's Markets v. DeFeo, Fla., 55 So.2d 182, Mrs. DeFeo had received her injuries from slipping on a string bean while shopping in the defendant's self-service grocery store. Upon original hearing, a judgment for the plaintiff was reversed, apparently because the Florida Supreme Court considered both that the evidence was insufficient to prove negligence, and that the plaintiff was guilty of contributory negligence, as a matter of law. Rehearing was granted and the judgment affirmed per curiam without opinion, except for a special concurring opinion in which Mr. Justice Terrell expressed the view that the rule of Wells v. Palm Beach Kennel Club, supra, should be applicable, stating:

"In Wells v. Palm Beach Kennel Club, 160 Fla. 502, 35 So.2d 720, we rejected the reasonable care rule which appellant seeks to invoke in this case for reasons not materially different. True the patron in that case slipped on a bottle in the aisle of the grand stand at a race course. It was not shown how long the bottle had been there, but we held that the diligence required of the proprietor must be comparable to that necessary under the circumstances to prevent accidents. In this case the evidence shows a complete lack

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