NORTHWEST FLORIDA CRIPPLED CHILDREN'S ASSOCIATION, APPELLANT,
v.
ETHEL LEE HARIGEL AND VINCENT J. HARIGEL, APPELLEES
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The Association appealed the trial court's denial of its motion for directed verdict in a premises liability case where a customer fell from a platform while shopping. The court affirmed, holding that whether a step-down constitutes negligence depends on surrounding circumstances and is a jury question.
The court held that it is not negligence per se to have floor levels at different heights unless the character, location, or surrounding conditions are such that a prudent person would not anticipate the step-down. The surrounding conditions here—the elevated display rack directing customers' eyes upward and the rack's extension beyond the platform edge—created a jury question as to whether these circumstances transformed a normally non-negligent condition into a negligent one.
[1] A difference in floor levels does not, in itself, constitute a failure to use due care for the safety of persons invited to premises.
[2] The question of whether a step-down in a store constitutes a negligent condition is for the jury when surrounding circumstances, such as the placement of merchandise, cou…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is not negligence per se to have in a store or other building one floor at a lower level by a few inches than another unless the character, location or surrounding conditions of the step-down are such that a prudent person would not anticipate it.”
Establishes the governing legal standard that step-downs are not automatically negligent but depend on surrounding circumstances.
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Join FLexlaw to unlock all legal intelligenceMrs. Harigel was shopping at a bargain store operated by the Association. The store had an outdoor platform 6 inches high extending from the building'…
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MILLS, Judge.
Northwest Florida Crippled Children’s Association (Association) appeals from the trial court’s denial of its motion for directed verdict. We affirm.
Ethel Harigel was shopping in a “bargain store” operated by the Association for the sale of used clothing and merchandise. Abutting the outside west wall of the building was a platform 6 inches high, extending along the wall approximately 12 feet and out from the wall approximately 9 feet. Mounted on the wall at a height of about 5 feet, 7 inches was a pipe on which the Association hung articles of clothing offered for sale. The south end of the pipe extended past the edge of the platform, which was painted yellow, by Zlh or 4 feet.
Mrs. Harigel stepped up onto the platform and began browsing through the clothing hanging from the pipe, moving south along the platform as she did so, toward the 6 inch step-down. She stepped off of the platform and fell to the ground, striking a pipe and fracturing her arm and several ribs.
Mrs. Harigel sued the Association, alleging “negligent maintenance of the premises.” The case proceeded to trial, at the conclusion of which the Association moved for directed verdict in its favor, arguing that, as a matter of law, uneven floor levels do not constitute a negligent failure to maintain premises in a safe condition. Mrs. Harigel argued in opposition that the question of whether a step-down constitutes a negligent condition is one for the jury-
The trial court reserved ruling on the motion. The case was given to the jury, which returned a verdict awarding Mrs. Harigel $100,000 and finding her 52.5% negligent. The association moved for judgment in accordance with the previous motion for directed verdict. The trial court denied the motion and final judgment was entered for Mrs. Harigel in the amount of $47,500.
It is not negligence per se to have in a store or other building one floor at a lower level by a few inches than another unless the character, location or surrounding conditions of the step-down are such that a prudent person would not anticipate it. Milby v. Pace Pontiac, Inc., 176 So. 2d 554, 556 (Fla. 2d DCA 1965). Milby was cited with approval in Pensacola Restaurant Supply Co. v. Davison, 266 So. 2d 682 (Fla. 1st DCA 1972), wherein the plaintiff tripped on a 2½ inch platform in a store. The court, relying on Milby, framed the issue as “whether or not the step-down ... under the circumstances constituted a hidden danger,” and held that it was appropriately decided by a jury. Pensacola Restaurant at 684 (emphasis supplied).
In this case, there was an obvious issue as to whether the surrounding condi tions of the step-down — the elevation of the display rack so that a customer’s eye is naturally focused up and away from the approaching edge and the extension of the rack beyond that edge — were sufficient to transform a normally non-negligent condition into a negligent one. Harigel’s knowledge that she was on a platform, the edge of which was clearly marked, is not fatal to her cause of action. The question again for resolution by the jury is, given all the circumstances, did she exercise reasonable care for her safety? Pensacola Restaurant at 685 (emphasis supplied); Taylor v. Tolbert Enterprises, Inc., 439 So. 2d 991 (Fla. 1st DCA 1983) (that an alleged negligent condition is open and obvious does not negate a defendant’s potential liability but raises comparative negligence).
The Association argues that its position is mandated by Schoen v. Gilbert, 436 So. 2d 75 (Fla.1983). However, that case held only that “a difference in floor levels does not of itself constitute failure to use due care for the safety of a person invited to the premises.” Schoen at 76 (emphasis supplied). This clearly leaves room for a showing of accompanying circumstances which, together with the change in floor level, constitute a negligent condition. The sufficiency of the circumstances herein to constitute such a condition was a jury question and the motion for directed verdict was properly denied.
AFFIRMED.
SHIVERS and ZEHMER, JJ., concur.
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Citator
Cited By (13 total)
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Casby v. Flint, 520 So. 2d 281 (Fla. 1988)…district court correctly found that the owner had a duty to warn of the change in floor levels hidden by an unusual interior design which created an optical illusion of a level floor. In Northwest Florida Crippled Children’s Association v. Harigel, 479 So. 2d 831 (Fla. 1st DCA 1985), a display rack extended beyond a step down and distracted the. customer’s focus away from the step creating a negligent condition and giving rise to a duty to warn. Kupperman and Harigel each involved an uncommon design or mode…
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Aventura Mall Venture v. Olson, 561 So. 2d 319 (Fla. 3d DCA 1990)…ructed plaintiffs view). Furthermore, this was not a case where the surrounding conditions of the step-down were sufficient to transform a normally non-negligent condition into a negligent one. See N. W. Florida Crippled Children’s Ass’n v. Harigel, 479 So. 2d 831 (Fla. 1st DCA 1985) (surrounding conditions of step-down, namely, pipe which displayed clothes for sale and extended over step-down, could have transformed normally non-negligent condition into negligent one). On the day of Olson’s accident the weat…
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Gorin v. City OF ST. Augustine, 595 So. 2d 1062 (Fla. 5th DCA 1992)…ces surrounding an incident and alleged dangerous condition before determining whether the obvious danger doctrine applies or the condition is inherently dangerous as a matter of law. See Northwest Florida Crippled Children’s Association v. Harigel, 479 So. 2d 831 (Fla. 1st DCA 1985); Kupperman v. Levine, 462 So. 2d 90 (Fla. 4th DCA 1985). Such considerations maintain the equilibrium between competing policy considerations of protecting proprietary interests and preventing harm caused by unreasonable and unre…1 / 2
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Schoen v. Gilbert, 436 So. 2d 75 (Fla. 1983)
- Milby v. Pace Pontiac, Inc., 176 So. 2d 554 (Fla. 2d DCA 1965)
- Taylor v. Tolbert Enters., Inc., 439 So. 2d 991 (Fla. 1st DCA 1983)
- Pensacola Rest. Supply Co., Inc. v. Davison, 266 So. 2d 682 (Fla. 1st DCA 1972)