ROSIE LEE MCCANICK AND LUTHER MCCANICK, APPELLANTS,
v.
W.J.A. REALTY LIMITED PARTNERSHIP D/B/A MIAMI JAI-ALAI METROPOLITAN DADE COUNTY, APPELLEE
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Rosie McCanick was injured when she tripped over a partially detached abrasive floor strip at a Jai-Alai Fronton. The court reversed a directed verdict for the defendant, finding that evidence of improper installation—specifically that proper glue application would have prevented the strip from loosening—created a triable issue of active negligence.
The court reversed the directed verdict because evidence that properly applied glue would not have failed before the strip wore out created a triable issue of fact regarding whether the defendant was actively negligent in making an improper installation.
[1] Evidence that an abrasive strip's adhesive would not have failed if properly installed creates a triable issue of active negligence in its improper installation.
[2] A directed verdict is improper when evidence presents a jury question on the issue of active negligence.
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Join FLexlaw to unlock all legal intelligence“evidence that the glue used to install the strip would not, if correctly employed, have come loose before the strip itself wore out, created a triable issue as to whether the defendants were actively negligent in making the installation improperly”
Establishes the standard for when improper installation creates a jury question
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Join FLexlaw to unlock all legal intelligenceRosie McCanick, a patron at the defendant's Jai-Alai Fronton, tripped over an abrasive strip that had become partially detached from the floor. Eviden…
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SCHWARTZ, Chief Judge.
Rosie McCanick, a patron at the defendant-appellee’s Jai-Alai Fronton, tripped over an abrasive strip which had become partially detached from the floor. We reverse the directed verdict granted the defendant at the end of the plaintiffs’ case because evidence that the glue used to install the strip would not, if correctly employed, have come loose before the strip itself wore out, created a triable issue as to whether the defendants were actively negligent in making the installation improperly. Arnold v. Miami Beach Kennel Club, Inc., 88 So. 2d 617 (Fla.1956); Carls Markets, Inc. v. Meyer, 69 So. 2d 789 (Fla.1953); First Fed. Sav. & Loan Ass’n v. Wylie, 46 So. 2d 396 (Fla.1950); Fritts v. Collins, 144 So. 2d 850 (Fla. 2d DCA 1962); 41 Fla. Jur.2d Premises Liability § 21 (1983).1 The cause is therefore remanded for a new trial.
Reversed.
. Because of our conclusion that a jury question exists as to active negligence, it is unnecessary, see Carls Markets, 69 So. 2d at 789, to consider the plaintiffs alternative argument that the fronton was on constructive notice of the defect merely because over three hours elapsed between its last inspection of the area and the accident. We do observe, however, that although there is some indication to the contrary, see Winn Dixie Stores, Inc. v. Williams, 264 So. 2d 862, 864 (Fla. 3d DCA 1972), the fact that there is no inspection for a given length of time in itself provides no proof that the defect was actually there for a sufficient period to place the landowner on reasonable notice of its existence. In this case, for example, there is no showing that the defect did not come into observable existence immediately before or at the time of the accident, so that the absence of any previous inspection would have made no difference.
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Smith v. Winn Dixie Stores, Inc., 528 So. 2d 987 (Fla. 3d DCA 1988)…at there is no inspection for a given length of time in itself provides no proof that the defect was actually there for a sufficient period to place the landowner on reasonable notice of its existence.” McCanick v. W.J.A. Realty Limited Partnership, 516 So. 2d 1129, 1130 n. 1 (Fla. 3d DCA 1987). Affirmed.…
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Wal-Mart Stores, Inc. v. King, 592 So. 2d 705 (Fla. 5th DCA 1991)…vides no proof that the defect was actually there for a sufficient period to place a landowner on reasonable notice of its existence. Smith v. Winn Dixie Stores, Inc., 528 So. 2d 987 (Fla. 3d DCA 1988); McCanick v. W.J.A. Realty Limited Partnership, 516 So. 2d 1129, 1130 n. 1 (Fla. 3d DCA 1987). In addition, as the trial judge noted, there was no evidence of signs of age, such as skid marks, smudges, or the like. Thus, under Marcotte, Wal-Mart is entitled to a judgment as a matter of law. Judgment reversed an…
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Miller v. BIG C Trading, Inc., 641 So. 2d 911 (Fla. 3d DCA 1994)…vides no proof that the defect was actually there for a sufficient period to place a landowner on reasonable notice of its existence. Smith v. Winn Dixie Stores, Inc., 528 So. 2d 987 (Fla. 3d DCA 1988); McCanick v. W.J.A. Realty Limited Partnership, 516 So. 2d 1129, 1130 n. 1 (Fla. 3d DCA 1987). Wal-Mart Stores, Inc. v. King, 592 So. 2d 705, 707 (Fla. 5th DCA 1991), review denied, 602 So. 2d 942 (Fla.1992). In reaching this conclusion, we disagree with the statement in Greenleaf v. Amerada Hess Corp., 626 So.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carls Mkts., Inc. v. Meyer, 69 So. 2d 789 (Fla. 1953)
- First Fed. Sav. & Loan Ass'n v. Wylie, 46 So. 2d 396 (Fla. 1950)
- Winn Dixie Stores, Inc. v. Williams, 264 So. 2d 862 (Fla. 3d DCA 1972)
- Martha Fritts and her husband v. Collins, 144 So. 2d 850 (Fla. 2d DCA 1962)
- Arnold v. Miami Beach Kennel Club, Inc., 88 So. 2d 617 (Fla. 1956)