ALBERT BARS, APPELLANT,
v.
MORRISON-KNUDSEN COMPANY, INC., A DELAWARE CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF FLORIDA; PERINI CORPORATION, A MASSACHUSETTS CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF FLORIDA; HARDEMAN (PAUL), INC., A MICHIGAN CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF FLORIDA, FORMERLY KNOWN AS PAUL HARDEMAN, INC., A DELAWARE CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF FLORIDA, A JOINT VENTURE; UNITED STATES STEEL CORPORATION, ALSO KNOWN AS AMERICAN BRIDGE, DIVISION OF UNITED STATES STEEL CORPORATION, A DELAWARE CORPORATION, FORMERLY A NEW JERSEY CORPORATION, AUTHORIZED TO DO BUSINESS IN THE STATE OF FLORIDA, JOINTLY AND SEVERALLY, APPELLEES
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A worker employed to photograph construction at Cape Canaveral slipped on hydraulic oil on the 34th floor and sued the general contractor and subcontractors. The Fourth District Court of Appeal reversed a summary judgment for the defendants, holding that genuine issues of material fact existed regarding whether the defendants or their employees created or had knowledge of the dangerous condition.
Summary judgment was improper because genuine issues of material fact existed. The evidence supported two possible inferences: (1) that the oil was spilled by defendants' employees or leaked from their equipment, in which case defendants had actual knowledge and a duty to remedy it or warn; or (2) that the oil existed for more than 45 minutes, creating a factual question about whether defendants had constructive knowledge and the duty to correct or warn.
“This testimony requires an inference either that the oil was on the floor before plaintiff arrived, and hence had been there for a period of more than 45 minutes, or that the oil had been spilled on the floor by one of the workmen or had leaked from some equipment under the control of one of the workmen, since no one other than workmen had been in the vicinity since the plaintiff and his assistant arrived.”
Establishes that circumstantial evidence permits two alternative inferences regarding the source and duration of the hazard
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Join FLexlaw to unlock all legal intelligencePlaintiff was employed by the Army Corps of Engineers to photograph construction at the Vertical Assembly Building at Cape Canaveral. While on the 34t…
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Plaintiff appeals from a summary judgment for defendants in a slip and fall case. We are of the view that the record discloses genuine issues of material facts thereby precluding entry of a summary judgment for defendants.
Defendants were the general contractor and a subcontractor for the construction of the Vertical Assembly Building at Cape Canaveral. Plaintiff was employed by the Army Corps of Engineers to photograph the construction at various stages of completion. While plaintiff was engaged in this assignment on the 34th floor of the building, he stepped in some hydraulic oil which had accumulated on the concrete floor creating a slippery condition, causing plaintiff to slip and fall, thereby sustaining personal injuries.
The only identified persons having knowledge of the accident were the plaintiff and his camera assistant, David Rock, whose depositions were taken and were before the court at the time of hearing on defendants’ motions for summary judgment. These depositions disclose that neither the plaintiff nor his assistant had any knowledge as to how the oil got on the floor nor how long it had been there before the accident. Appellees contend that plaintiff’s inability to produce any evidence showing either how the oil got on the floor or for how long a period of time it had been on the floor prior to the accident entitled them to the summary judgment in their favor, citing in support of their position Food Fair Stores, Inc. v. Trusell, Fla.1961, 131 So.2d 730; and Food Fair Stores of Florida, Inc. v. Patty, Fla.1959, 109 So.2d 5.
Notwithstanding the inability of plaintiff to produce evidence on these matters, there was other testimony in this case which we believe clearly distinguishes it from the rationale of the cited cases relied upon by appellees. The depositions of plaintiff and his assistant establish that for a period of 45 minutes they had been on the 34th floor of the building in the immediate area where plaintiff fell, and that during that interval of time the only other *447persons who were in the area were workmen engaged in the construction. While the depositions did not establish the identity of any of these workmen by name, their protective helmets bore distinctive insignia and color to identify them as workmen for one or more of the defendants. Plaintiff also testified that when he first arrived in the area there were two hydraulic jacks standing near the spot where plaintiff subsequently fell, although he conceded that he did not know whether the hydraulic jacks contained oil or wheher the oil came from such jacks, and that he did not notice the oil on the floor at the time the jacks were taken away by some workmen.
This testimony requires an inference either that the oil was on the floor before plaintiff arrived, and hence had been there for a period of more than 45 minutes, or that the oil had been spilled on the floor by one of the workmen or had leaked from some equipment under the control of one of the workmen, since no one other than workmen had been in the vicinity since the plaintiff and his assistant arrived.
Under the latter inference, the dangerous condition having been created by the defendants’ employees, defendants would be chargeable with knowledge of its existence as well as the necessity of promptly correcting the condition or giving plaintiff adequate warning of it. Winn-Dixie Stores, Inc. v. Manning, Fla.App.1962, 143 So.2d 339; Food Fair Stores of Florida, Inc. v. Patty, supra. If the alternative inference is drawn, a clear factual issue exists as to whether the dangerous condition had existed for a sufficient period of time to impose upon the defendants constructive knowledge of its existence, and the subsequent duty to correct the dangerous condition or warn the plaintiff of it. Carls Markets v. Meyer, Fla.1953, 69 So.2d 789; Food Fair Stores of Florida, Inc. v. Patty, supra. Since the facts necessarily require that either one or the other of such inferences be drawn therefrom, such facts clearly distinguish the instant case from Food Fair Stores, Inc. v. Trusell, supra.
The summary judgment is reversed and the cause remanded for further proceedings.
CROSS, J., and HENSLEY, ROBERT E., Associate Judge, concur.
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Thee v. Manor Pines Convalescent Ctr., Inc., 235 So. 2d 64 (Fla. 4th DCA 1970)…making the admission was an employee of the defendant nursing home is prima facie established by the testimony of the plaintiff. See Mercury Cab Owners’ Association v. Jones, Fla. 1955, 79 So. 2d 782; Bars v. Morrison-Knudsen Company, Fla.App. 1969, 222 So. 2d 445. The person making the statement had on a uniform that the plaintiff identified as a nurse’s aide’s uniform. In response to a question put to her by her superior about the condition of the floor she stated, “Milk got spilled, but we mopped it up.”…
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Honesto Alegre v. Shurkey, 396 So. 2d 247 (Fla. 1st DCA 1981)…f the danger as a question to be resolved by a jury and have permitted the cases to be tried under the usual theories of negligence and contributory negligence. See Jenkins v. Brackin, 171 So. 2d 589 (Fla. 2d DCA 1965); Bars v. Morrison-Knudsen Co., 222 So. 2d 445 (Fla. 4th DCA 1969); Harvey Building, Inc. v. Haley, 175 So. 2d 780 (Fla. 1965). The latter cases, in effect, focus attention upon the knowledge of the condition which the landowner had, or with the exercise of reasonable care he should have had, no…
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Publix Super Mkts., Inc. v. Lindholm, 243 So. 2d 8 (Fla. 3d DCA 1971)…t in its rulings and in permitting the jury to determine the issues presented. See Voelker v. Combined Ins. Co. of America, Fla.1954, 73 So. 2d 403; Carls Markets v. Meyer, Fla.1953, 69 So. 2d 789; and Bars v. Morrison-Knudsen Company, Fla.App.1969, 222 So. 2d 445. Affirmed.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Food Fair Stores, Inc. v. Phoebe C. Trusell et vir, 131 So. 2d 730 (Fla. 1961)
- Food Fair Stores OF Fla., Inc. v. Patty, 109 So. 2d 5 (Fla. 1959)
- Carls Mkts., Inc. v. Meyer, 69 So. 2d 789 (Fla. 1953)
- Cape COD Tr. Co. v. Wixon, 143 So. 2d 339 (Fla. 2d DCA 1962)
- Winn-Dixie Stores, Inc. v. Manning, 143 So. 2d 339 (Fla. 2d DCA 1962)