Schatz v. 7-Eleven, Inc., C-213

• Decision Date: 11 April 1961
• Docket Number: No. C-213,C-213
• Citation: 128 So.2d 901
• Parties: Martha W. SCHATZ et al., Appellants, v. 7-ELEVEN, INC. et al., Appellees.
• Court: Florida District Court of Appeals

Page 901

128 So.2d 901

Martha W. SCHATZ et al., Appellants, v. 7-ELEVEN, INC. et al., Appellees.

No. C-213.

District Court of Appeal of Florida, First District.

April 11, 1961.

Rehearing Denied May 8, 1961.

Raymond, Wilson & Karl, and Wesley A. Fink, Daytona Beach, for appellants.

Alfred A. Green, Alfred A. Green, Jr., and Marks, Gray, Yates, Conroy & Gibbs, Jacksonville, for appellees.

WIGGINTON, Chief Judge.

Plaintiff has appealed from a summary final judgment rendered in favor of defendant. It is contended that from the pleadings, answers to interrogatories, admissions contained in a pre-trial order, and affidavits before the court at the hearing upon the motion, there existed a genuine issue of the material fact relating to defendant's liability, and that the court erred in holding that defendant was entitled to judgment as a matter of law.

Plaintiff was a business invitee shopping in the drive-in food store controlled and operated by defendant. The building housing defendant's store was constructed in accordance with plans and specifications prepared and provided by it. Customers are on the paved area located in front of the on the paved area located in from of the building. A sidewalk ten feet wide and a curb 5 3/4 inches high separate the front of the building from the parking area furnished for the accommodations of defendant's motoring customers. Automobiles approaching the building park perpendicular to the curb. At the time alleged in the complaint an automobile operated by the third party defendant drove to a parking slot directly in front of the store and came to a stop at the curb at a point directly in front of the open and unobstructed entrance to the store building. When the operator of the vehicle later attempted to start her car and put it in operation, she negligently and carelessly caused it to be propelled forward over the curb and across the sidewalk into defendant's store striking plaintiff and pinning her against a fixture, inflicting upon her severe injuries.

It is the theory of plaintiff's action that defendant breached a duty owed plaintiff as a business invitee of its store in failing to either so regulate the parking of motor vehicles in front of the store in such manner that they would not be headed directly toward the interior of the store when in a parked position, or in the alternative, failing to provide an adequate curb, barrier, wall or other obstacle in front of the store adequate to prevent the entry therein of any motor vehicles parked at the curb in front of the building. It is alleged that as a result of the foregoing failures on the part of the defendant, it breached a duty owed plaintiff to maintain its premises in a reasonably safe condition for customers inside the store, which breach of duty was the proximate cause of the injuries suffered by plaintiff under the circumstances above related.

In opposition to defendant's motion for summary judgment plaintiff submitted an affidavit of the city engineer to the effect that the standard and ordinary sidewalk curbs in the area of defendant's business are constructed to a minimum of six inches in height. The affidavit of another engineer averred that in his expert opinion the nature of appellee's business, when considered in conjunction with the architectural design of the store building, required that reasonable precaution be taken to protect customers shopping inside the store against the danger of automobiles crossing the sidewalk, entering the store and injuring those who may be shopping therein. He further deposed that reasonably safe construction and engineering standards would require that a barrier of not less than eight inches in height be constructed along the curb, separating the sidewalk from the parking area. He stated that in his opinion the height of the curb constructed in front of defendant's store failed to comply with reasonably safe construction and engineering standards in the area, and was not sufficient to impede the entry of a motor vehicle into the store building from the parking area.

The prime question for our consideration is whether, upon the undisputed facts above related, there existed a genuine issue of a material fact from which a jury could have lawfully found that defendant breached a duty owed plaintiff, which breach was the proximate cause of plaintiff's injuries.

Plaintiff was a business invitee on defendant's premises at the time of her injury. The law imposes on defendant the duty of exercising ordinary care to maintain his premises in a reasonably safe condition for the purpose for which they are adapted. ¹ Defendant did not owe plaintiff a duty as insurer of her safety while on the premises in question, but is charged with the duty of guarding against subjecting plaintiff to dangers of which defendant is cognizant or might reasonably foresee. ²

In the Pope case ³ this court discussed the law of proximate cause and the several tests to be applied in determining whether a given act is the proximate cause of damages sustained. It was there pointed out that the two essential elements of proximate cause are causation and the limitation to foreseeable consequence. Causation is that act which, in the natural and continuous sequence, unbroken by any intervening cause, produces the injury, and without which the result would not have occurred. Even though the person charged may be guilty of a negligent act, there can be no recovery for an...