Winer v. Walo, Inc., 57-331

• Decision Date: 09 September 1958
• Docket Number: No. 57-331,57-331
• Citation: 105 So.2d 376
• Parties: Irving M. WINER, Appellant, v. WALO, Inc., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 376

105 So.2d 376

Irving M. WINER, Appellant, v. WALO, Inc., a Florida corporation, Appellee.

No. 57-331.

District Court of Appeal of Florida, Third District.

Sept. 9, 1958.

Rehearing Denied Oct. 16, 1958.

Nichols, Gaither, Green, Frates & Beckham, Miami, for appellant.

Brown, Dean, Adams & Fischer, Miami, for appellee.

PEARSON, Judge.

This action was brought to recover damages arising out of a fall by a guest upon an outside terrazzo walkway maintained on the premises of a resort motel located in Miami Beach. At the conclusion of plaintiff's case, the trial judge directed a verdict for the defendant motel. Plaintiff appeals from the final judgment entered pursuant to this directed verdict.

Viewing the facts in the light most favorable to the plaintiff, the record shows the following circumstances. The plaintiff, a medical doctor, had been a guest at the defendant's motel for approximately two weeks. On January 7, 1956, shortly before noon, he was dozing on a lounge chair in the grass patio area. He was clad only in bathing trunks and was in his bare feet. He was awakened by the screams of a child some 20 to 30 feet away. The child was holding his wrist and crying, 'My arm! My arm!' The plaintiff rushed to the child's aid. In so doing he passed over a grass area that was being watered by a mechanical sprinkler, and onto a section of terrazzo walkway which was wet with spray blown by the wind from the sprinkler. The plaintiff slipped and was injured when his wet bare feet hit the wet terrazzo. In addition to these facts the plaintiff introduced the testimony of a builder in the area. His testimony was to the effect that the terrazzo is an unsuitable material for the construction of outside walkways because of its slippery condition when wet. He further testified that terrazzo may be coarsely or finely ground and that this particular walkway was the 'most finely ground' that he had encountered.

The trial judge based his directed verdict for the defendant upon two grounds: (1) that the plaintiff has not proved a prima facie case of negligence by the defendant, and (2) that the defendant was guilty of contributory negligence as a matter of law. A review of the evidence before the trial judge convinces us that he was correct upon the first ground.

A motel guest is a business invitee to whom the operator of the motel owes a duty to use ordinary or reasonable care to provide the guest with reasonably safe premises. See Goldin v. Lipkind, Fla.1950, 49 So.2d 539. Plaintiff's contention, as to the breach of this duty, is that the defendant constructed and maintained its outside walkway of a material that was not reasonably safe for such use. Therefore the controlling question is: was the plaintiff's evidence sufficient to establish that terrazzo was an unsafe material for use under the conditions in which it was used by the defendant? It was of course necessary for the plaintiff to show that his injury was proximately caused by the defendant's use of this material.

In the case of Bucholtz v. City of Jacksonville, Fla.1954, 72 So.2d 52, 53, the Supreme Court of Florida affirmed a final judgment based upon an order granting a motion to dismiss a complaint in which negligence was predicated upon the allegation that the city permitted the treads of the steps into the city hall to be worn slick and smooth. The reasoning of the Court is set out in the opinion as follows:

'It is a matter of common knowledge that constant use of steps, although properly constructed of proper material, will cause such steps to become slick amd smooth. The steps leading into the Supreme Court Building and most of the floors in such building are slick and smooth. The same can be said with reference to multiplied thousands of public buildings throughout the State of Florida. The hardwood floors or marble floors in...