Winn-Dixie Stores, Inc. v. Marcotte

• Decision Date: 02 November 1989
• Docket Number: No. 89-170,WINN-DIXIE,89-170
• Citation: 553 So.2d 213,14 Fla. L. Weekly 2543
• Parties: 14 Fla. L. Weekly 2543 STORES, INC., Appellant, v. Ramona F. MARCOTTE, Appellee.
• Court: Florida District Court of Appeals

Page 213

553 So.2d 213

14 Fla. L. Weekly 2543

WINN-DIXIE STORES, INC., Appellant, v.Ramona F. MARCOTTE, Appellee.

No. 89-170.

District Court of Appeal of Florida Fifth District.

Nov. 2, 1989.

Rehearing Denied Dec. 6, 1989.

James A. Young and Debra Kubicsek of Haas, Boehm, Brown, Rigdon, Seacrest & Fischer, P.A., Tampa, for appellant.

Marjorie E. Smith and Robert M. Moletteire of Reinman, Harrell, Silberhorn & Graham, P.A., Melbourne, for appellee.

COWART, Judge.

This case involves: torts--negligence--premises liability--duty to learn of dangerous premises conditions not created by the possessor or its agents--evidence of length of time the dangerous condition existed prior to the injury as compared to length of time between reasonable inspections.

A customer sued a supermarket because the customer slipped and fell on a slippery substance on the floor of the supermarket.Before and during trial, the customer produced no evidence that the supermarket's agents or employees caused the slippery substance to be on the supermarket floor or that they otherwise had actual knowledge of its existence before the accident.Neither did the customer produce evidence as to how or when the substance got on the floor or the length of time it was there before the accident.

The trial court denied the supermarket's motion for directed verdict, denied certain jury instructions requested by the supermarket, and, when the jury returned a verdict in favor of the customer, denied the supermarket's motion for a new trial.The supermarket appeals.We reverse.

An entity in the actual possession and control of a premises, such as a supermarket, to which members of the public are invited, is not an insurer of the safety of such persons, ¹ nor is the possessor strictly liable, or liable per se without fault, for injuries resulting to invitees from dangerous conditions on the premises; nevertheless, such a possessor basically has two legal duties to protect invitees from the harmful effects of dangerous premises conditions.First, such a premises possessor has a legal duty to ascertain that the premises are reasonably safe for invitees.This duty equates into a legal duty to use reasonable care to learn of (i.e., to acquire actual knowledge as to) the existence of any dangerous conditions on the premises.²Secondly, the premises possessor has a second, entirely different, legal duty to use reasonable care to protect invitees from dangerous conditions of which the possessor has actual knowledge.³This second duty is usually breached when the possessor fails to take reasonable care (a) to eliminate the known danger, (b) to protect invitees from the known danger by excluding them from the area of danger, (by fences, gates, walls, door, barricades, etc.), or by providing protective devices (safety glasses, ear muffs, breathing devices, hard hats, guardrails, covers on machinery, etc.), (c) to provide warnings as to the danger, or (d) to take some combination of these protective actions.

As to the premises possessor's first duty to use reasonable care to learn of the existence of dangerous conditions, a special situation exists when the circumstances are such that a reasonable and prudent person inviting members of the public to a premises would reasonably foresee that some such invitees (or third parties) might, from time to time, create dangerous conditions on the premises.In such situations, the premises possessor's legal duty is to use reasonable care to timely discover the existence of such dangerous conditions.⁴This legal duty is commonly conceptualized on the basis of "constructive notice" but that description is often misleading in this context.It is a distortion of sound negligence theory and a mischievous oversimplification to merely say that a premises possessor has "constructive notice" of dangerous conditions not created by the possessor or his agents and not actually known by them.Such oversimplification of the legal concept of "constructive notice" to a premises possessor can result in imposing strict liability on the possessor for all injuries resulting from every dangerous condition existing on every square foot of occupied premises at every moment of time.Rather, the legal liability of a premises possessor for injuries resulting from dangers not actually known by the possessor prior to the injury is based on a breach of the legal duty to use reasonable care to look for, and to discover, reasonably foreseeable but not actually known dangerous conditions.⁵This is a hypothetical "reasonable man" standard as to a duty of care.This duty of a premises possessor to look for unknown dangerous conditions not created by the...