Schaap v. Publix Supermarkets, Inc.

• Decision Date: 13 May 1991
• Docket Number: No. 90-2036,90-2036
• Citation: 579 So.2d 831
• Parties: Eileen M. SCHAAP and Martin Schaap, Appellants, v. PUBLIX SUPERMARKETS, INC., a Florida corporation, Appellee. 579 So.2d 831, 16 Fla. L. Week. D1348
• Court: Florida District Court of Appeals

Page 831

579 So.2d 831

Eileen M. SCHAAP and Martin Schaap, Appellants, v. PUBLIX SUPERMARKETS, INC., a Florida corporation, Appellee.

No. 90-2036.

579 So.2d 831, 16 Fla. L. Week. D1348

District Court of Appeal of Florida,

First District.

May 13, 1991.

Stephen C. Willis of Brooks & Leboeuf, P.A., Tallahassee, for appellants.

Charles A. Stampelos, Gerald B. Sternstein, Gary A. Shipman of McFarlain, Sternstein, Wiley & Cassedy, P.A., Tallahassee, for appellee.

WOLF, Judge.

The plaintiffs, Eileen M. Schaap and Martin Schaap (Schaaps), appeal from a summary judgment in favor of Publix Supermarkets, Inc. (Publix). The Schapps allege that they had raised a genuine issue of material fact concerning the mode of operation used by Publix from which a trier of fact could determine that Publix negligently caused Mrs. Schaap to slip and fall. We disagree and affirm.

On February 19, 1989, appellant, Eileen Schaap, while shopping at the Publix Supermarket on Thomasville Road in Tallahassee, slipped and fell on a piece of debris and was injured. On July 21, 1989, Schaap and her husband sued Publix, alleging that Schaap's injury was proximately caused by Publix's negligent failure to maintain the floors of its supermarket in a reasonably safe condition.

On October 25, 1989, Publix moved for summary judgment, arguing that the Schaaps failed to meet their burden of demonstrating that Publix had either actual or constructive knowledge of a hazardous condition, and that the Schapps failed to raise a genuine issue of material fact from which a trier of fact could determine that Publix was negligent. During the hearing on Publix's motion, the Schaaps presented a first amended complaint to the trial court for consideration. The trial judge granted the Schaaps leave to file the amended complaint.

In support of its motion for summary judgment, Publix relied in part on Mrs. Schaap's deposition: At approximately 5:30 p.m. on February 19, 1989, Schaap entered the Publix grocery store on Thomasville Road with her seven-year-old daughter, Stephanie. Schaap bought some groceries and went to the checkout lane with her daughter and the shopping cart. She had been inside the store for about 30 minutes. She then realized she had forgotten to get bread, so she left her daughter with the cart and went back to the bread aisle. She was walking in front of one of the aisles leading to a cash register carrying the bread in her left hand, when she fell. Neither her daughter nor anyone else saw Schaap fall. She did not recall the specific number of the aisle in which she fell, but stated that it was probably one of the middle aisles. The store was not very crowded at the time she fell, and she did not see any Publix employees nearby.

Schaap testified that she "slipped on something very slippery," but that before she fell, she had not seen anything on the floor. After she fell, she "saw something that appeared to be brown, and it was on the heel of [her] shoe. It appeared to be a cookie." She "didn't notice anything on the floor" such as water or other debris. She believed that "the object [she] slipped on made the floor slippery." Schaap said that the cookie reminded her of the cookies in the Publix Bakery. Part of the cookie was still on the floor, and she described it as "brown, mushy, slimy. It looked like one that had been spit out or chewed and thrown out, that type of thing." Schaap never showed the cookie to her daughter. She wiped the debris off her heel with a tissue and threw the tissue and debris away. She paid for her groceries and then proceeded to the office to fill out an accident report. She gave the assistant manager, William Curry, the details of what had happened, but did not show him or anyone else the spot where she fell.

The plaintiffs chiefly relied on deposition testimony of assistant manager Curry, which the Schaaps allege clearly demonstrated that Publix was on notice of the foreseeable danger created by the Publix cookie program. Curry stated that Publix had a store policy to dust mop every two hours, and that it was usually done on the even hour. As a general rule, the manager walks the floor to inspect, and there is always one manager on duty at each store. Curry was on duty on February 19, 1989, at 6 p.m., and he stated that he walked the floor periodically "all the time." He acknowledged that the terrazzo flooring was dangerous when there was food on the floor.

After Schaap reported the facts of her fall and left the store, Curry went to the area where Schaap said she had fallen. He found a small piece of cookie about the size of a quarter or a nickel. There was an insufficient amount of cookie to permit identification of where the cookie came from. Curry did not know how the cookie got on the floor nor how long it had been there. He testified that the piece of cookie may have come from the Publix bakery. Publix had a cookie club program in effect on February 19 by which any child under twelve accompanied by an adult could receive a free cookie at any time, and could eat the cookie anywhere in the store. Curry did not know how many cookies had been given out on February 19. He acknowledged that he expected children to spill cookies or portions of cookies as they were eating them throughout the store, but he said he was unaware that any other Publix customers had ever slipped and fallen on cookie debris.

The trial court concluded that there were no material facts in dispute, and that the Schaaps could not prevail as a matter of law. At the hearing, Judge Davey said,

[T]he fact that they have a cookie club, which I think is not a fact in dispute, I don't think that in and of itself, you know, would allow you to take that to the jury. That would be another fact that could be put before the jury, but there still has to be some connection, causal connection between her slipping and falling and something that Publix has done. And I think the fact that they have a cookie club is not enough in and of itself to establish that. You are talking about a jury making a quantum speculative leap from the fact that since there is a cookie club some kid must have dropped it. You know, in reality, you know, you see people buy things and eat them while they are shopping, I am sure I have done that. So the negligence comes in having a condition which they either don't warn or don't remedy. And as I said, I think it is much too speculative without any evidence whatsoever to indicate how long that cookie was there. Whether it came from the cookie club, was brought in prior to that or was dropped by, you know, somebody in line two shopping carts ahead of her, that is much [too] speculative to hold someone liable when there is no evidence to say, you know, how long it has been there. And that is where the case falls down. I don't think there are any facts in dispute. I mean, I think the facts are clear. The only problem is there is no evidence in the record to indicate that there has been a breach of duty by Publix. And according to Patty and some of the other cases, that [duty] has to be there. In other words, she has to have some evidence that they were negligent, and there isn't. And I'm not willing to hold, I think it would be erroneous to hold that the fact that you have this cookie club would in and of itself be negligence, nor would I think it would be negligent for failing to have a warning on the wall saying, 'We give those kids cookies, so watch out.'

(Emphasis added). We find no error in the analysis of the trial judge.

To recover for injuries incurred in a slip-and-fall case, the plaintiff must generally prove that the owner of the premises had actual or constructive notice of the dangerous condition. Brooks v. Phillip Watts Enters., Inc., 560 So.2d 339, 341 (Fla. 1st DCA 1990), rev. den., 567 So.2d 435 (Fla.1990). Constructive knowledge may be inferred from either 1) the amount of time a substance has been on the floor, or 2) the fact that the condition occurred with such frequency that the owner should have known of its existence. Brooks, supra, at 342. The owner of the store may also be held liable where an agent or employee of the store negligently caused the dangerous condition to exist. Publix Supermarkets v. Schmidt, 509 So.2d 977 (Fla. 4th DCA 1987). In addition, the method of operation of the owner may be so inherently dangerous that while the owner did not actually create the specific condition which caused the fall, they still may be held liable. Wells v. Palm Beach Kennel Club, 160 Fla. 502, 35 So.2d 720 (Fla.1948).

In the instant case, there is no proof of how long the item which allegedly caused the slip had been on the floor, that this had occurred with sufficient frequency that the storeowner should have known about the substance on the floor, or that the substance was placed on the floor as the result of the actions of employees or agents of Publix. Appellants argue, therefore, that their case is based on the method of operation of the Publix cookie program.

To establish negligence in this particular case based on a theory of method of operation, the appellant must prove:

1. Either the method of operation is inherently dangerous, or the particular operation is being conducted in a negligent manner; and

2. The condition of the floor was created as a result of the negligent method of operation.

The plaintiff in the instant case has not proffered evidence that would sufficiently prove either element.

The Schapps do not allege nor have they presented evidence which would indicate that Publix was negligent in the manner in which they operated the "cookie program." This case, therefore, is unlike Wells v. Palm Beach Kennel Club, supra, where the court held that the...