Westberry v. Great Atlantic & Pac. Tea Co.

• Decision Date: 01 November 1966
• Docket Number: No. 65--1001,65--1001
• Citation: Westberry v. Great Atlantic & Pac. Tea Co., 191 So.2d 613 (Fla. App. 1966)
• Parties: June I. WESTBERRY and James Westberry, Appellants, v. The GREAT ATLANTIC & PACIFIC TEA CO., Inc., a Maryland corporation, Appellee.
• Court: Florida District Court of Appeals

Page 613

191 So.2d 613

June I. WESTBERRY and James Westberry, Appellants, v.The GREAT ATLANTIC & PACIFIC TEA CO., Inc., a Maryland corporation, Appellee.

No. 65--1001.

District Court of Appeal of Florida, Third District.

Nov. 1, 1966.

Rehearing Denied Nov. 29, 1966.

Ser, Greenspahn, Keyfetz & Morrissey, Miami, for appellants.

Dean, Adams, George & Wood, Miami, for appellee.

Before HENDRY, C.J., and BARKDULL and SWANN, JJ.

SWANN, Judge.

Appeal from a final judgment directing a verdict for the defendant, The Great Atlantic & Pacific Tea Co., Inc.

The plaintiff, June I. Westberry, an employee of the defendant, was injured on the defendant's premises when she slipped and fell on the produce workroom floor while returning from the ladies' room.Inasmuch as the defendant had previously rejected the Workmen's Compensation Act, it was precluded by Section 440.06, Florida Statutes, F.S.A., from asserting such defenses as contributory negligence, assumption of the risk, or negligence of a fellow servant in the suit subsequently brought by the plaintiff.At trial, the court directed a verdict for the defendant upon the conclusion of the plaintiff's case, and the plaintiff now appeals.The sole question before us is whether the trial court erred in directing a verdict for the defendant at the close of the plaintiff's case.

The record indicates that on September 6, 1963the plaintiff had gone to the ladies' room after finishing lunch in the area designated by the defendant for its employees.She took the more direct of two routes and went through the work produce room.

For approximately six months prior to the accident, the produce workroom floor had been continually littered with vegetable and fruit materials.The plaintiff, who had made an average of three trips a day to the ladies' room via this route, was undoubtedly familier with these conditions.At the time of her fall, she was picking her way through the debris to return to her work.She claims that the floor was not completely covered with debris and that although she had been watching her steps carefully, she still stepped on what she believed to be a grape, slipped and fell.There is no conflict as to the fact that she suffered injuries from this accident.

The circumstances from which the case at bar arose bear a striking similarity to those in the case of Faltinali v. Great Atlantic & Pacific Tea Co., 55 R.I. 438, 182 A. 605(1936).In Faltinali, a co-worker had dropped a barrel of potatoes on the plaintiff's foot when he slipped on a piece of spinach which had been left on the defendant's floor by other workers.The spinach had been on the floor for some two hours, even though the defendant had instructed its workers to pick up anything they spilled...