SHERMAN L. VAN HORN, APPELLANT,
v.
FOOD SERVICE EQUIPMENT, INC., APPELLEE
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In this negligence action, the Florida District Court of Appeal affirmed summary judgment for a store proprietor where a customer fell after stepping down from one floor level to another that differed in appearance and substance. The court held that such a change in floor level, located well within the store and clearly distinguishable by surface material and color, did not constitute negligence per se.
The court held that the trial judge correctly entered summary judgment for the defendant because the step-down in this case did not constitute negligence per se. The step-down did not fall within the exception established in Milby v. Pace Pontiac Co. because it was well within the building, the surfaces were distinguishable by substance and color, and the customer had to traverse the step to reach the rear of the store.
“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”
Establishes the general rule that floor level differences do not constitute negligence per se absent special circumstances
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Join FLexlaw to unlock all legal intelligencePlaintiff Van-Horn entered defendant's store to make a purchase and proceeded down an aisle where he stepped up eight inches to reach the rear of the …
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This is an appeal by Sherman L. Van-Horn, plaintiff, from a summary final judgment in an action for negligence granted Food Service Equipment, Inc., defendant.
Plaintiff entered defendant’s store for the purpose of making a purchase. He proceeded down an aisle to the rear of the store where it was necessary that he step-up from one level of the floor to another, a difference of eight inches. After making his purchase and proceeding to leave the store, his attention was distracted in observing merchandise displayed for sale. In the course of examining a tag plaintiff forgot that there was a step down in the floor, and as a result lost his balance and fell. From the photographs it is possible to observe that the upper level of the step was concrete, and the lower level is of a marbleized appearing asphalt tile.
The matter came on for consideration on defendant’s Motion for Summary Judgment on the pleadings, the depositions and photographs of the interior of defendant’s store..
*529In Grail v. Risden, Fla.App.1964, 167 So. 2d 610, cert. dismissed Fla.1965, 174 So.2d 736, this court discussed the duties of a proprietor to keep the premises in a reasonably safe condition, and the invitee’s corresponding duty to exercise reasonable care for his own safety. In Milby v. Pace Pontiac Co., Fla.App.1965, 176 So.2d 554, opinion filed June 11, 1965, this court held that a jury could conclude that the defendant was negligent in maintaining multiple floor levels because of the “character, location [and] surrounding conditions” of the step-down. This recognized an exception to the general rule that “[i]t 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 * * *" Milby v. Pace Pontiac Co., supra; Jahn v. Tierra Verde City, Inc., Fla.App.1964, 166 So.2d 768; Matson v. Tip Top Grocery Co., Inc, 1942, 151 Fla. 247, 9 So.2d 366.
In the Milby case, supra, the step-down in question was just inside the door leading into the store and the floors were of the same color and substance. Furthermore, there was a jury question as to whether the step-down, under the circumstances, constituted a hidden danger of which a warning should have been given. In the case sub jrtdice, the step-down was well within the building itself, the surfaces of the two floor levels were of different substances and therefore distinguishable, and before one could step down from the higher to the lower level it was necessary to traverse the step, since the higher level was towards the rear of the establishment.
We are of the opinion that the case at bar does not come within the exception announced in the Milby case and that it is controlled by the case of Matson v. Tip Top Grocery Co, Inc, supra. For these reasons we hold that the trial judge was correct in entering a summary final decree for the defendant.
Affirmed.
SHANNON, Acting C. J, and SMITH, J, concur.
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Maas Bros., Inc. v. Bishop, 204 So. 2d 16 (Fla. 2d DCA 1967)…strip thereon, where the condition causing the fall is obvious to the sight. See, e. g., Earley v. Morrison Cafeteria Co. of Orlando, Fla. 1952, 61 So. 2d 477; Matson v. Tip Top Grocery Co., supra; Van Horn v. Food Serv. Equip., Inc., Fla.App. 1965, 177 So. 2d 528; Grail v. Risden, supra. It was the alleged slickness of the metal strip that was the dangerous condition, not its location or very existence. Whether such condition was discernible upon, casual observation of the premises was a question properly su…
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Pensacola Rest. Supply Co., Inc. v. Davison, 266 So. 2d 682 (Fla. 1st DCA 1972)…have been given. It must further be determined whether or not the patron exercised reasonable care for his own safety. These are matters to be decided by a jury under appropriate instructions from the court. Van Horn v. Food Service Equipment, Inc., 177 So. 2d 528 (Fla.App. 2nd, 1965); McRae v. Winn-Dixie Stores, Inc., 227 So. 2d 214 (Fla.App. 4th, 1969). This then brings us to the second point on appeal herein, to wit: did the trial judge properly instruct the jury? The instruction given to the jury was as…
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Trinity Episcopal Church OF Vero Beach v. Hoglund, 222 So. 2d 781 (Fla. 4th DCA 1969)…concluded, I conclude here that the character, location and surrounding conditions of the steps and hallway could justify reasonable men in concluding that the defendant was negligent. See also Van Horn v. Food Service Equipment, Inc., Fla.App.1965, 177 So. 2d 528. The foregoing, however, is not dispositive of whether plaintiff was guilty of contributory negligence as a matter of law. The majority relies heavily upon Delany v. Breeding’s Homestead Drug Co., Fla.1957, 93 So. 2d 116, and quotes extensively th…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Matson v. TIP TOP Grocery Co., Inc., 151 Fla. 247 (Fla. 1942)
- Grall v. Risden, 174 So. 2d 736 (Fla. 1965)
- Grall v. Risden, 167 So. 2d 610 (Fla. 2d DCA 1964)
- In re Application of Marion E. Sibley to Resign from the Bar of the State of Fla., 151 Fla. 225 (Fla. 1942)
- Milby v. Pace Pontiac, Inc., 176 So. 2d 554 (Fla. 2d DCA 1965)
- Jahn v. Tierra Verde City, Inc., 166 So. 2d 768 (Fla. 2d DCA 1964)