JEANNE F. CONWELL AND ARTHUR JAMES CONWELL, HER HUSBAND, APPELLANTS,
v.
ZAYRE OF MIAMI, INC., A FLORIDA CORPORATION, APPELLEE
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Jeanne Conwell was injured after tripping over a dress rack left in an aisle by defendant's employees while she was lawfully in defendant's store as a business invitee. The trial court granted summary judgment for the defendant, but the appellate court reversed, holding that negligence and contributory negligence were triable issues precluding summary judgment.
The defendant was not free from negligence as a matter of law. The negligence of the defendant and the contributory negligence of the plaintiff were triable issues, and summary judgment was improper.
“The plaintiff was where she was entitled! to be, and concededly was a business invitee-The obstruction in the aisle was placed there by defendant's employees.”
Establishes that plaintiff had legal right to be in the location and that defendant created the hazard, supporting liability.
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Join FLexlaw to unlock all legal intelligenceJeanne Conwell was employed in a leased department within a store operated by Zayre of Miami, Inc. Before opening time, she went to an area operated b…
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The appellants were the plaintiffs below. They appealed from a summary judgment entered in favor of the defendant. The action was by the plaintiff Jeanne F. Conwell for personal injuries allegedly the product of defendant’s negligence, and by her husband for derivative damages. Jeanne Conwell, who will be referred to as the plaintiff, was employed in a separate leased department in a store establishment operated by the defendant corporation. One morning before the time for opening to the public, plaintiff went to an area or department operated by defendant to return to defendant an article belonging there which had been mistakenly left in her employer’s area. She was directed by one of the defendant’s employees to proceed down a certain aisle. In arranging merchandise there, the defendant’s employees had used a movable dress rack and had left it in such position that a leg or base thereof extended into the aisle. Plaintiff fell over it and was injured. The trial judge held that as a matter of law the defendant corporation was free of negligence. We cannot agree. The plaintiff was where she was entitled! to be, and concededly was a business invitee-The obstruction in the aisle was placed there by defendant’s employees. In the circumstances presented, the questions of negligence of the defendant and of contributory negligence of the plaintiff plainly were triable issues. See Brisson v. W. T. Grant Company, Fla.1955, 79 So.2d 771; McDermott v. Engstrom, Fla.1955, 81 So.2d 553; Sunday v. Ikinson, Fla.App.1958, 103 So.2d 669; Purdon v. Cohen, Fla.App.1961, 126 So.2d 575; Hanson v. Shell’s City, Inc., Fla.App.1961, 133 So.2d 573. Accordingly the summary judgment is reversed.
Reversed.
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Grall v. Risden, 167 So. 2d 610 (Fla. 2d DCA 1964)…laintiff had exercised due care and had looked, he would have seen the “tie-rod.” In failing to do so he was contributorily negligent, as a matter of law. The plaintiff directs the Court’s attention to Conwell v. Zayre of Miami, Inc., Fla.App.1964, 161 So. 2d 537. That case can be distinguished from the case at bar. In that case the object tripped over was a movable object, not a fixed one, and the plaintiff in the Conwell case was advised by the defendant’s employee to proceed down the aisle where the accid…
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McHARGUE v. The Great Atl. & Pac. TEA Co., Inc., 209 So. 2d 283 (Fla. 1st DCA 1968)…t. The judgment appealed is accordingly reversed and the cause remanded for a new trial. CARROLL, DONALD K., and RAWLS, JJ., concur. . Food Fair Stores, Inc. v. Trusell, (Fla.1961) 131 So. 2d 730. . Conwell v. Zayre of Miami, Inc., (Fla.App.1964) 161 So. 2d 537; McDermott v. Engstrom, (Fla.1955) 81 So. 2d 553; Brisson v. W. T. Grant Company, (Fla.1955) 79 So. 2d 771.…
Authorities Cited
- Purdon v. Cohen, 126 So. 2d 575 (Fla. 2d DCA 1961)
- Olive G. Brisson v. W. T. Grant Co., 79 So. 2d 771 (Fla. 1955)
- McDERMOTT v. Alf C. Engstrom and Florence Engstrom, 81 So. 2d 553 (Fla. 1955)
- Phillips v. Cnty. OF Dade, 133 So. 2d 573 (Fla. 3d DCA 1961)
- Hanson v. Shell's City, Inc., 133 So. 2d 573 (Fla. 3d DCA 1961)
- Sunday v. Ikinson, 103 So. 2d 669 (Fla. 3d DCA 1958)