ARVELLA BURMEISTER, ET AL., APPELLANTS,
v.
AMERICAN MOTORISTS INSURANCE COMPANY, ET AL., APPELLEES

Fla. 4th DCA | 1981-09-02
No. 79-1729
HERSEY and GLICKSTEIN, JJ., concur.
403 So. 2d 541 Florida District Court of Appeal, Fourth District (1981) Positive Treatment
Cited by 22 cases

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Synopsis

In this slip-and-fall premises liability case, the court reversed a directed verdict for the defendant store, holding that circumstantial evidence of a concrete sidewalk gouge's age was sufficient to allow a jury to determine whether the storekeeper had constructive notice of the dangerous condition.


Holding

The directed verdict was improper. The plaintiff presented sufficient circumstantial evidence—the husband's testimony regarding the absence of debris and the apparent age of the gouge—to permit the jury to infer that the dangerous condition existed long enough for the storekeeper to have had constructive notice of it.


Headnotes

[1] A storekeeper owes a duty to exercise ordinary and reasonable care to maintain the approaches to its premises in a reasonably safe condition.

[2] To recover in a slip and fall case, a plaintiff must demonstrate either actual notice of the dangerous condition or that the condition existed for a sufficient length of…

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Key Quotes

“a storekeeper must exercise ordinary or reasonable care to see that those portions of the premises which persons may be expected to use are reasonably safe”

Establishes the duty of care owed by storekeepers to patrons

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Facts & Procedural History

On April 5, 1977, Mrs. Burmeister slipped and fell on a concrete sidewalk at a Sears store while stepping up onto it. She fell into a gouge measuring …

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Opinion of the Court
HURLEY, Judge.

HURLEY, Judge.

At issue is whether the trial court erred in directing a verdict in favor of the defendants in a slip and fall case. We conclude that the plaintiff adduced sufficient circumstantial evidence to permit the jury to resolve the question of the storekeeper’s constructive knowledge of the dangerous condition and, consequently, we reverse.

On April 5, 1977, Mr. and Mrs. Burmeis-ter went to shop at the Sears Roebuck store in Fort Pierce. They parked in the lot and walked toward the store entrance. Mrs. Burmeister, however, slipped and fell as she attempted to step up onto a concrete sidewalk. Her husband testified that she stepped into a gouge in the edge of the sidewalk which measured approximately twelve to fourteen inches in length and about two to three inches in depth, he also testified that he looked in the gutter and in the vicinity of the gouge but did not see any debris. Though he had earlier stated in his deposition that the gouge “was new, sort of new, it was fresh,” he qualified this statement at trial by testifying, “It wasn’t old looking ... I can tell if it was fairly new but not real new.”

Defendants moved for a directed verdict at the close of the plaintiffs’ case and again at the conclusion of the entire case. The trial court, however, reserved ruling and submitted the case to the jury. The verdict was for the plaintiff with a finding that Mrs. Burmeister had been thirty per cent negligent. At a post-trial hearing, the court vacated the verdict and granted a directed verdict in favor of the defendants.

It is well accepted that a storekeeper must exercise ordinary or reasonable care to see that those portions of the premises which persons may be expected to use are reasonably safe. Unquestionably, this duty extends to the approaches to the premises. Winn-Dixie Montgomery, Inc. v. Petterson, 291 So. 2d 666 (Fla. 1st DCA 1974). But, “[i]n order to recover, a plaintiff must show either that the . . . [storekeeper] had actual notice of the condition or that the dangerous condition existed for such a length of time that in the exercise of ordinary care the . . . [storekeeper] should have known of it and taken action to remedy it or guard the plaintiff from harm therefrom.” Id., at 668.

Actual notice was not an issue in the case at bar and thus we are concerned only with the issue of constructive notice. In this respect, it is recognized that “[p]roof that a dangerous condition existed long enough so that it should have been discovered by the . . . [storekeeper] may be proved like any other fact, by circumstantial evidence.” Winn-Dixie Stores, Inc. v. Williams, 264 So. 2d 862, 863 (Fla.3d DCA 1972); Gaidymowicz v. Winn-Dixie Stores, Inc., 371 So. 2d 212 (Fla.3d DCA 1979). Also, since the issue on appeal is the propriety of granting a directed verdict, we must view the evidence and all reasonable inferences that can be drawn therefrom in the light most favorable to the Burmeisters and all conflicts in the evidence must be resolved in their favor. Marlowe v. Food Fair Stores of Florida, Inc., 284 So. 2d 490 (Fla.3d DCA 1973).

Applying these well known principles to the facts in the case at bar, we believe that the plaintiffs’ evidence, albeit circumstantial, was sufficient to require submission of the case to the jury. Cf. Miami Shores Village v. Lingler, 157 So. 2d 716 (Fla.3d DCA 1963). Mr. Burmeister’s testimony as to the absence of debris at the scene, coupled with his opinion that the gouge was “fairly new but not real new,” was an adequate evidentiary basis to support the jury’s implied finding that the condition had existed long enough to put the store on constructive notice of the danger involved. Therefore, we reverse the order on appeal and remand the cause with instructions to reinstate the jury’s verdict.

REVERSED AND REMANDED WITH INSTRUCTIONS.

HERSEY and GLICKSTEIN, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (11 total)

  • Anne E. Nance v. Winn Dixie Stores, Inc., 436 So. 2d 1075 (Fla. 3d DCA 1983)
    …atter fact may be proved by circumstantial evidence. Montgomery v. Florida Jitney Jungle Stores, Inc., 281 So. 2d 302 (Fla.1973); Camina v. Parliament Insurance Co., 417 So. 2d 1093 (Fla. 3d DCA 1982); Burmeister v. American Motorists Insurance Co., 403 So. 2d 541 (Fla. 4th DCA 1981); Winn-Dixie Stores, Inc. v. Guenther, 395 So. 2d 244 (Fla. 3d DCA 1981); Gaidymowicz v. Winn-Dixie Stores, Inc., 371 So. 2d 212 (Fla. 3d DCA 1979); Marlowe v. Food Fair Stores of Florida, Inc., 284 So. 2d 490 (Fla. 3d DCA 1973),…
  • Emmons v. Baptist Hosp. & Servicemaster Indus., Inc., 478 So. 2d 440 (Fla. 1st DCA 1985)
    …view the evidence and all reasonable inferences that can be drawn therefrom in the light most favorable to the non-moving party. Kolosky v. Winn Dixie Stores, Inc., 472 So. 2d 891 (Fla. 4th DCA 1985); Burmeister v. American Motorists Insurance Co., 403 So. 2d 541 (Fla. 4th DCA 1981). . Judge Cobb dissented in Merritt on the grounds that the fire code rule, in his view, was not applicable and, therefore, was inadmissable. Judge Cobb’s opinion makes a persuasive argument that, in the absence of the evidence o…
  • Levy v. Home Depot, Inc., 518 So. 2d 941 (Fla. 3d DCA 1987)
    …ess operator’s duty regarding the safety of his premises may “extend to the approaches to the premises also.” Winn-Dixie Montgomery, Inc. v. Petterson, 291 So. 2d 666, 667 (Fla. 1st DCA 1974). Accord Burmeister v. American [*943] Motorists Ins. Co., 403 So. 2d 541, 542 (Fla. 4th DCA 1981). An operator-tenant may possess a duty concurrent with the owner-landlord’s to provide reasonably safe premises, including a safe path of egress from the premises. Jackson v. K-Mart Corp., 182 N.J.Super. 645, 442 A. 2d 1087,…

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