STANLEY ZUBOWICZ, APPELLANT,
v.
W. L. WARNOCK AND MARY G. WARNOCK, HIS WIFE, APPELLEES
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A tenant injured by stepping through a cracked concrete slab into a hole appeals from a directed verdict for his landlords. The court affirmed, holding that the tenant's evidence was insufficient to establish proximate causation between the landlords' alleged negligence and the injury, and that the tenant, as occupant, was in a better position to discover the latent defect.
The court held that the tenant's evidence was insufficient to establish proximate causation. The court found that while the tenant knew of the open hole, any negligence in failing to fill it was not the proximate cause of his injury because the breaking of the concrete slab was the direct cause. Additionally, as the occupant, the tenant was in as good or better position than the landlords to discover the latent defect in the slab.
“There is no evidence to such effect, nor is there evidence from which a reasonable inference to that effect can be drawn. No causal connection is shown between installation of the sewer line and the breaking of the concrete slab which resulted in this accident.”
The court rejecting the tenant's theory that the sewer line installation caused the concrete slab to break, finding only speculation and no evidence of proximate causation.
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Join FLexlaw to unlock all legal intelligenceOn February 19, 1958, Stanley Zubowicz, operating a launderette under lease from the Warnocks, went into the yard to turn on gas. Upon returning, he s…
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Stanley Zubowicz, plaintiff below, appeals from a judgment entered on a verdict directed for defendants, W. L. War-nock and Mary G. Warnock, his wife, at the close of plaintiff’s case in a negligence action for personal injuries.
Viewing the evidence in its most favorable light to appellant, we feel that a fair statement of the relevant facts is as follows.
Appellant was injured in an accident which occurred on February 19, 19S8, while operating a launderette at St. Petersburg Beach. At the time, he held the premises, consisting of a laundry building and a yard on its north side, under lease from appel-lees, non-resident owners thereof. Frank Dailey of Beach Realty Corporation, ap-pellees’ agent, managed the premises.
On the day of his injury, appellant went into the yard to turn on the gas, as he had done many times before. Upon returning, at the door of the building he stepped upon á concrete slab or apron which cracked, gave way, and caused him to be thrown forward into an open hole about five feet long, five feet wide and four feet deep. The hole was about two feet away from the spot where the concrete collapsed, *891and was separated from the slab by a concrete wall or sill approximately six inches high. Appellant had never noticed anything wrong with the concrete slab before the accident, but after the accident it was observed that it was a “hollow shell over a hole below.” Although he previously knew nothing of the defective slab or the hole under it, he did know of the open hole into which he fell and had previously requested Dailey to fill it. Dailey had seen the latter hole, measured it, and agreed to fill it, but apparently no one knew of the hole under the slab.
Dailey had arranged for the installation of a sewer line from the building to the street in 1957 or 1958 prior to the accident. The sewer line required an excavation from the building to the main sewer line. This ■sewer line, which was refilled as soon as ■completed, ran along the north side of the building but it is not clear just how it ran in relation to the point of the accident.
Appellant’s theory is that the sewer line was negligently installed, causing settling and erosion which undermined areas of the side yard, including the hole under the concrete slab which broke. This, however, is pure speculation and conjecture. There is no evidence to such effect, nor is there evidence from which a reasonable inference to that effect can be drawn. No causal connection is shown between installation of the sewer line and the breaking of the concrete slab which resulted in this accident.
It is clear that appellant well knew of the open hole into which he fell. Any negligence of appellees in not filling that hole was not the proximate cause of appellant’s injury, the proximate cause having been the breaking of the concrete slab on which he stepped. The defect in the slab or its support was a latent defect which may or may not have existed from the inception of the lease. In either event, however, appellant, being the occupant of the premises, was in as good or better position to know of such defect than were ap-pellees or their agent. Under the evidence adduced in the court below, the rule of caveat emptor applies and there can be no recovery. See Butler v. Maney, 146 Fla. 33, 200 So. 226; Brooks v. Peters, 157 Fla. 141, 25 So.2d 205; Sampson v. Stanley Corporation, Fla., 75 So.2d 186.
Having determined that appellant’s evidence was insufficient for a verdict in his favor, it is unnecessary that we consider the additional ground stated by the court below for its action.
Affirmed.
KANNER, A. C. J., and WHITE, J., concur.
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Citator
Cited By
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Gentile v. Austin, 166 So. 2d 155 (Fla. 3d DCA 1964)…PER CURIAM. The directed verdict in favor of the defendant entered at the conclusion of plaintiff’s case is affirmed under the rule stated in Zubowicz v. Warnock, Fla.App.1963, 149 So. 2d 890, to the effect that appellant, being the occupant of the premises, was in as good or better position to know of such defect as was appellee. See also Felshin v. Sir, 149 Fla. 218, 5 So. 2d 600. Affirmed.…
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Thomas v. McDONALD and Eunice R. McDonald, 309 So. 2d 192 (Fla. 1st DCA 1975)…he premises which the landlord had agreed to repair although the leased premises were in the exclusive possession of the tenant.) We have carefully read the numerous other cases cited by the parties, including Zubowicz v. Warnock, Fla.App.2nd 1963, 149 So. 2d 890, Diaz v. Hudson, Fla.App. [*195] 1st 1966, 191 So. 2d 277 and Perlman v. Kraemer, Fla.App.3rd 1958, 104 So. 2d 609, but we do not find those cases helpful in resolving the issue here under consideration. In the case sub judice the agreed facts supp…
Authorities Cited
- Butler v. Maney, 146 Fla. 33 (Fla. 1941)
- Brooks v. Peters, 157 Fla. 141 (Fla. 1946)
- Kinkelaar v. Luella S. Kinkelaar, 157 Fla. 141 (Fla. 1946)
- Sampson v. Stanley Corp., 75 So. 2d 186 (Fla. 1954)