Rowe v. Winn-Dixie Stores, Inc., WINN-DIXIE

• Decision Date: 03 August 1998
• Docket Number: WINN-DIXIE,No. 97-1473,97-1473
• Citation: 714 So.2d 1180
• Parties: 23 Fla. L. Weekly D1848 Irma ROWE and her husband, Wallace Rowe, Appellants, v.STORES, INC. and Winn-DIXIE Montgomery, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 1180

714 So.2d 1180

23 Fla. L. Weekly D1848

Irma ROWE and her husband, Wallace Rowe, Appellants, v. WINN-DIXIE STORES, INC. and Winn-DIXIE Montgomery, Inc., Appellees.

No. 97-1473.

District Court of Appeal of Florida First District.

Aug. 3, 1998.

Pamela Dru Sutton of Stone & Sutton, P.A., Panama City, for Appellants.

Richard N. Blank of Richard N. Blank, P.A., Ft. Lauderdale, for Appellees.

ALLEN, Judge.

The appellants challenge a summary final judgment entered for the appellees in a slip and fall action. Because we conclude that the "negligent method of operation" theory of recovery upon which the appellants rely is not applicable to supermarket slip and fall cases, we affirm the summary final judgment.

The undisputed facts established that Irma Rowe was shopping at the appellees' supermarket when she slipped on seafood salad which was on the floor near a self-service display. The display was not attended by an employee of the appellees, and there was no evidence to suggest how long the salad had been on the floor, or that the salad had been dropped by an employee of the appellees, or that the appellees knew that the salad was on the floor, or that seafood salad had been found on the floor around the display in the past. In light of these facts, the appellants do not rely on the well-recognized rule that a store owner may be found liable for negligently failing to take reasonable steps to correct a dangerous condition on a floor after the owner, its agent, or employee has created the condition, or after the owner otherwise has actual or constructive notice of the condition. See, e.g., Food Fair Stores v. Patty, 109 So.2d 5 (Fla.1959); Brooks v. Phillip Watts Enterprises, 560 So.2d 339 (Fla. 1st DCA 1990). The appellants instead argue that a jury question was presented as to whether the appellees were negligent in the manner in which they operated the seafood salad display, and rely upon the "negligent method of operation" theory of liability expounded in Wells v. Palm Beach Kennel Club, 160 Fla. 502, 35 So.2d 720 (Fla.1948).

In Wells the Florida Supreme Court announced a special rule for slip and fall cases involving places of amusement where large crowds are invited to congregate. Imposing a higher duty of care upon the owners and operators of those establishments, the court indicated that such places of amusement have a continuous duty to look after the safety of their patrons, so that liability may be predicated on a negligent method of operation even without notice or knowledge of a dangerous condition. But the supreme court has declined to extend the special rule announced in Wells to slip and fall cases involving other business establishments, such as supermarkets. ¹ See Food Fair Stores v. Trusell, 131 So.2d 730 (Fla.1961); Patty; Carls Markets v. Meyer, 69 So.2d 789 (Fla.1953).

Although the third district recently applied the operational negligence doctrine to a supermarket in the slip and fall case of Publix Super Market v. Sanchez, 700 So.2d 405 (Fla. 3d DCA 1997), the court nevertheless found no liability on facts which are closely analogous to those in the present case. And in approving the operational negligence doctrine in Sanchez the third district apparently failed to give proper effect to the supreme court's prior rulings, as well as this court's decision in Schaap v. Publix Supermarkets, 579 So.2d 831 (Fla. 1st DCA 1991). The supreme court precedent, as cited above, suggests that the doctrine does not apply in this context, and Schaap, upon which the third district relied, is not authority for a contrary view. While one member of the appellate panel in Schaap would have applied the doctrine, another member of the panel concurred in the result only and the third member of the panel dissented. Because a concurrence in result only expresses agreement with the ultimate decision but not the opinion, see Gerald Kogan & Robert Craig Waters, The Operation and Jurisdiction of the Florida Supreme Court, 18 Nova L.Rev. 1151, 1175 (1994), there was no majority opinion in Schaap and the case does not stand as precedent for the individual views expressed in the separate opinions. See also, Greene v. Massey, 384 So.2d 24 (Fla.1980).

In accordance with our conclusion that the operational negligence doctrine does not apply to supermarket slip and fall actions of the type involved in the present case, the appealed order is affirmed.

BARFIELD, C.J., concurs.

LAWRENCE, J., dissents with written opinion.

LAWRENCE, Judge, dissenting.

I respectfully dissent. Irma Rowe was injured when she slipped on food on the floor of Winn-Dixie's Panama City store on October 3, 1990. Two issues remain to be determined by the finder of fact in this case, namely, whether Winn-Dixie reasonably could foresee that customers would spill seafood salad on the floor after serving themselves from an unsupervised self-serve display and, if so, whether Winn-Dixie failed to exercise reasonable care to prevent or minimize such spills. The granting of Winn-Dixie's motion for summary judgment therefore was error in my view.

The instant case is distinguishable from the usual slip-and-fall case: The defendant, in the usual case, is not charged with creating a hazardous condition, but only with having actual or constructive knowledge that such a condition exists. The Rowes, by contrast, allege that Winn-Dixie created the hazardous condition by negligently operating the seafood salad display. The Rowes urge that, despite that it is undisputed that the seafood salad was spilled by a customer, nevertheless Winn-Dixie created the risk that such spills would occur by offering food samples without stationing an attendant at the display, and without providing eating utensils, napkins, or any waste receptacle.

The Florida Supreme Court, addressing a similar claim in Wells v. Palm Beach Kennel Club, 160 Fla. 502, 35 So.2d 720 (1948), held that a jury question exists. The majority states that the Florida Supreme Court has "declined to extend the special rule announced in Wells to slip and fall cases involving other business establishments, such as supermarkets." Majority op. at 1181. The court indeed, in Food Fair Stores, Inc. v. Trusell, 131 So.2d 730 (Fla.1961), indicated that the Wells rule would "not apply when the dangerous condition was created by a third party and liability of the owner of the premises is conditioned upon actual or constructive knowledge of the danger." Trusell, 131 So.2d at 733. The Trusell court, however, distinguished the situation, such as the one in the instant case, where the dangerous situation was created by the shopkeeper, explaining that "the so-called 'dog track or public amusement rule' might be applicable to a situation where the creator of a dangerous condition would necessarily know about it and therefore be held responsible for his own creation." Id. at 733 (citing Carls Markets, Inc. v. Meyer, 69 So.2d 789 (Fla.1953)).

Meyer, the appellee-customer in Carls Markets, slipped and fell on vegetable leaves mixed with water. Meyer's original complaint alleged that Carls Market created the dangerous condition. Meyer subsequently amended her complaint and introduced the element of notice; the trial court however failed to instruct on notice. The Florida Supreme Court held that the trial court should have instructed the jury that it must find that the store had notice in order to find liability. The court explained:

Had the plaintiffs based their case solely on the creation of a hazard by the operator of the store as they first alleged, we would be inclined to agree that there was no occasion for the charge about notice for if the plaintiffs could convince the jury that the dangerous condition was created by persons connected with the store the matter of notice was inconsequential.

Carls Markets, Inc. v. Meyer, 69 So.2d 789, 791 (Fla.1953) (emphasis added). The court explained that the underlying principle in Wells would have applied to the plaintiffs' case had they not amended their complaint, because "the creator of a dangerous condition must by the very fact, know about and be responsible for his creation." Id. at 791. The court noted that "the dangerous obstacles [in Wells ] were the creations of the defendant who in effect was on notice as soon as the bottled refreshments were sold." Id.

It is undisputed in the instant case that, despite that the seafood salad Mrs. Rowe slipped on was spilled by a customer, Winn-Dixie nevertheless created the unsupervised display from which the customer spilled the seafood salad on which Mrs. Rowe slipped. Thus, just as the Wells jury was charged with determining whether the defendants were negligent in distributing bottled beverages to their patrons without providing proper waste receptacles, the fact-finder in the instant case should have the opportunity to decide whether Winn-Dixie was negligent in its method of operation--in creating an unsupervised self-serve food display without providing a waste receptacle, napkins, utensils, or other means of keeping food in its proper place.

The Florida Supreme Court, in Brisson v. W.T. Grant Co. 79 So.2d 771 (Fla.1955), described the Wells rule as follows where the possibility or probability of consequence can be reasonably foreseen, anticipated, or prevented, an actor who does not use ordinary and reasonable care to avoid such consequences will be deemed guilty of negligence.

Brisson, 79 So.2d at 772-73. The Brisson court was careful to note that proof of actual or implied knowledge would be required in "a case involving a fall because of a failure to remove a foreign substance whose presence on the floor was unexplained ...." Id. at 772 (emphasis added). The foreign substance on the floor in the instant case however, as in Wells, was not unexplained; it was dropped there from an unsupervised food display. This is not a case where a customer slips on an errant piece of lettuce or some other slippery...