DORIS A. ABES AND BERNARD ABES, APPELLANTS,
v.
PUBLIX SUPERMARKETS, INC., APPELLEE
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Plaintiff's negligence claim against Publix for tripping over a watermelon carton on a wooden pallet was improperly dismissed on summary judgment because comparative negligence principles, not the complete bar rule from 1953, now apply in Florida.
Under Florida's comparative negligence doctrine, a plaintiff's failure to look for an obstacle does not bar recovery as a matter of law when the defendant's conduct also contributed to the injury.
[1] Under Florida's comparative negligence doctrine, a plaintiff's partial fault does not bar recovery but only reduces damages, and summary judgment is improper when both pl…
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Join FLexlaw to unlock all legal intelligenceAbes tripped over a large cardboard carton of watermelons placed on a wooden pallet that extended four inches from the carton's base with gaps between…
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PER CURIAM.
Abes, a customer in Publix, tripped over a large cardboard carton containing watermelons, which was placed on a wooden pallet in an aisle of the store. The pallet extended four inches out from the bottom of the carton and had gaps between the boards. Abes testified that she wasn’t looking for the box, she was looking for the potatoes when she tripped and fell. The trial court granted Publix’ motion for summary judgment citing Frederich’s Market v. Knox, 66 So. 2d 251 (Fla.1953). Abes appeals and we reverse.
The case upon which the trial court relied was decided in 1953 at a time when contributory negligence was a complete bar to recovery. Florida is now a comparative negligence state and a plaintiff’s contributory negligence does not totally bar recovery but may only limit the amount of recovery. See Winn-Dixie Stores, Inc. v. Miller, 220 So. 2d 680 (Fla. 4th DCA1969). We find that under these facts there was a jury question raised as to whether Publix’ use of the wooden pallet constituted comparative negligence and that the trial court erred in granting Publix’ motion for summary judgment.
We REVERSE and REMAND for further consistent proceedings.
HERSEY and WARNER, JJ., and WALDEN, JAMES H., Senior Judge, concur.
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Citator
Cited By
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Fenster v. Publix Supermarkets, Inc., 785 So. 2d 737 (Fla. 4th DCA 2001)…1st DCA 1986); see also Knight v. Waltman, 774 So. 2d 731 (Fla. 2d DCA 2000)(an invitee’s knowledge of a danger is not a complete bar to recovery, but rather triggers the application of comparative negligence). In Abes v. Publix Supermarkets, Inc., 610 So. 2d 709 (Fla. 4th DCA 1992), this court held that a summary judgment entered in favor of Publix and against the plaintiff was improper. Appellant was injured when she tripped over a large cardboard carton containing watermelons which had been placed on a wo…
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Richards and Harold Richards v. Walt Disney World Co., 139 So. 3d 476 (Fla. 5th DCA 2014)…fact exist as to what caused Appellant to trip and whether the object that caused the trip and fall was open and obvious. See Javits v. RSMO Independence Mgmt. Consultants, Inc., 738 So. 2d 521 (Fla. 4th DCA 1999); Abes v. Publix Supermarkets, Inc., 610 So. 2d 709 (Fla. 4th DCA 1992). REVERSED and REMANDED. TORPY, C.J., SAWAYA and WALLIS, JJ., concur.…
Authorities Cited
- Winn-Dixie Stores, Inc. v. Miller, 220 So. 2d 680 (Fla. 4th DCA 1969)
- Frederich's Mkt., Inc. v. Knox, 66 So. 2d 251 (Fla. 1953)