Ress v. X-Tra Super Food Centers, Inc., X-TRA
| Citation | 616 So.2d 110 |
| Decision Date | 24 March 1993 |
| Docket Number | No. 91-2312,X-TRA,91-2312 |
| Parties | 18 Fla. L. Week. D794 Joan RESS, et al., Appellants, v.SUPER FOOD CENTERS, INC., a foreign corporation, Appellee. |
| Court | Florida District Court of Appeals |
Steven R. Berger of Wolpe, Leibowitz, Berger & Brotman and Nuell, Baron & Polsky, Miami, for appellants.
Mark R. Antonelli of Gaebe, Murphy, Mullen, Antonelli & Gerlin, Coral Gables, for appellee.
Appellants, Joan and William Ress, appeal from a summary judgment entered against them in a slip and fall case which they filed against appellee, X-tra Super Food Centers, Inc.
While walking through an aisle of X-tra's super market, Joan Ress stepped on a substance on the floor which appeared to be sauerkraut and fell, injuring herself. Joan had been in that particular aisle for at least five minutes, during which time no one passed her. Prior to the time that she slipped and fell she had been looking up at a "huge display" of paper towels which reached "up to the rafters." Joan testified in a deposition that the substance she fell on looked like sauerkraut and it was "gunky, dirty and wet and black." The deposition evidence further showed that the store sold hot dogs to customers for consumption on the premises. There were condiments and customers could request sauerkraut. Customers were free to either sit on the benches near the area where the hot dogs were sold or walk around the store while consuming hot dogs.
Joan and William sued for damages based upon X-tra's negligence in allowing the aforesaid condition to exist. In due course X-tra filed a motion for summary judgment, the thrust of which contended that there was no genuine issue of material fact existing because there was no proof that X-tra actually or constructively knew of the presence on the floor of the substance causing Joan's fall. It is conceded there was no actual notice; the issue presented is whether X-tra had constructive notice of the condition.
On the record presented to the trial court we conclude that X-tra did not successfully carry its burden of conclusively demonstrating that there was no existing genuine issue of material fact. Moore v. Morris, 475 So.2d 666 (Fla.1985); Cufferi v. Royal Palm Development Co., Inc., 516 So.2d 983 (Fla. 4th DCA 1987); Suggs v. Allen, 563 So.2d 1132 (Fla. 1st DCA 1990).
The pleadings, depositions and other matters contained in the record show that the substance which caused Joan to slip and fall, a substance she perceived to be sauerkraut, had been there for at least five minutes. Furthermore, the substance was black which could lead one to conclude that it had been stepped on before and thus had been there for longer than the five minutes Joan...
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