Walker v. Feltman, 58-633
| Decision Date | 21 April 1959 |
| Docket Number | No. 58-633,58-633 |
| Parties | Sarah WALKER and Melton Walker, Appellants, v. Walter FELTMAN and Harold Meltzer, d/b/a Lynns, Appellees. |
| Court | Florida District Court of Appeals |
Robert J. Ramer, Miami, for appellants.
Dixon, DeJarnette, Bradford & Williams and Charles A. Kimbrell, Miami, for appellees.
This appeal is from an order dismissing the plaintiffs' complaint with prejudice. The material allegations of the complaint are as follows:
doors opened, and, in addition, this advertisement stated that quantiites of the merchandise on sale were limited to only fifty pieces per item.
aforestated advertisement, Plaintiff, Sarah Walker, was present in the entryway of Defendants' store, in the front of a group of approximately one hundred persons which persons had also gathered in response to Defendants' advertisement.
opening time, the group above described became restive, boisterous and unruly and it began pushing and surging forward.
'7. That thereafter an employee of the Defendants opened the doors and shouted at the group 'go!'; whereupon, the group surged, pushed, shoved and rushed through the entrance of Defendants' store, which entrance was approximately six feet wide.
store, in the direct path of the entering crowd, Defendants maintained a movable table counter.
'9. That when the doors were opened, as aforesaid, Plaintiff, Sarah Walker, was thrown, pushed and shoved by the aforesaid crowd against the above described table counter, which was overturned, causing her to fall over said table counter and sustain personal injuries of a permanent and continuing nature; she suffered great physical and mental pain and anguish and will in the future continue to so suffer; she has incurred debts for medical expenses and will be compelled to incur debts in the future for further medical expenses.
'10. That the proximate cause of Plaintiff, Sarah Walker's injuries, suffering and damage was the negligence of the Defendants and the nuisance created thereby.
'11. That the Defendants were negligent as follows:
'(a) In admitting a large restive, boisterous and unruly crowd of people upon Defendants' premises without providing appropriate safeguards therefor.
'(b) In inviting a large restive, boisterous and unruly crowd of people to enter their premises in a dangerous and hazardous fashion.
'(c) In inciting a large restive, boisterous and unruly crowd of people to rush into their premises without restraint.
'(d) In maintaining upon their premises a trap; to-wit: a movable table-counter, in direct path of incoming crowds, without providing any notice of the hazard created thereby.
'(e) That the Defendants knew or, by the exercise of reasonable diligence, should have known, that all of the aforesaid acts and/or omissions rendered their premises hazardous and dangerous to their business invitees; and, notwithstanding, the Defendants committed said acts and/or omissions in willful and wanton disregard of the safety of their business invitees.'
A motion to dismiss admits, for the purposes of argument of questions of law raised therein, the truth of those allegations of the complaint that are well pled. As such, it only remains for the court to apply the law to the facts conceded.
A proprietor is not an insurer of the safety of his customers but is charged with the duty of maintaining his premises in a reasonably safe condition and guarding against subjecting a customer to dangers of which the proprietor is cognizant or might reasonably foresee. McNulty v. Hurley, Fla.1957, 97 So.2d 185, 187. See also J. G. Christopher Co. v. Russell, 63 fla. 191, 58 So. 45; Southern Express Co. v. Williamson, 66 Fla. 286, 63 So. 433, L.R.A.1916C, 1208; National Brands v. Norton Tire Co., for use of Ocean Accident & Guarantee Corporation, 150 Fla. 349, 7 So.2d 456; Hall v. Holland, Fla.1950, 47 So.2d 889; Earley v. Morrison Cafeteria Co. of Orlando, Fla.1952, 61 So.2d 477.
The facts, as alleged in the complaint, reveal that the defendants advertised a sale of certain merchandise at a special price but limited the quantity to fifty pieces per item. The advertisement apparently accomplished its designed effect as approximately a hundred persons responded and gathered themselves at the entrance to the defendants' store prior to opening time. It is alleged that the crowd became boisterous and unruly, a condition which must have been obvious to the defendants. It must have been equally obvious...
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