JOY BROWN AND WILLIAM BROWN, HER HUSBAND, APPELLANTS,
v.
MCARTHUR DAIRIES, INC., A FLORIDA CORPORATION, AND WINN-DIXIE STORES, INC., A FLORIDA CORPORATION, APPELLEES

Fla. 3d DCA | 1973-07-10
No. 71-1079
Before PEARSON, CHARLES CARROLL and HENDRY, JJ.
280 So. 2d 520 Florida District Court of Appeal, Third District (1973) Positive Treatment
Cited by 16 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Joy Brown was injured when she tripped on a milk crate left in a supermarket aisle by McArthur Dairies' deliveryman. The trial court directed a verdict for McArthur and the jury returned a verdict for Winn-Dixie. The appellate court reversed both judgments, holding that proximate causation and contributory negligence were questions for the jury, not matters of law.


Holding

The court reversed both judgments, holding that proximate causation from the deliveryman's negligence was a question for the jury because the store's failure to remove the crate was not an independent, intervening, efficient cause as a matter of law. The court also held that contributory negligence was a jury question, not a matter of law, and that the trial judge committed error in denying a peremptory challenge and in instructing the jury on the plaintiff's duty to observe conditions.


Headnotes

[1] A directed verdict for a defendant is improper when a jury might reasonably find that the defendant's negligence continued and was joined by the negligence of another par…

[2] The negligence of a store operator in failing to discover a deliveryman's negligence does not necessarily constitute an independent, intervening, efficient cause that exp…

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Key Quotes

“a jury might reasonably find that McArthur was negligent and that its continuing negligence was later joined by the negligence of the store operator. Both McArthur and Winn-Dixie had a corresponding duty to conduct their business so that the plaintiff and others would not be exposed to unreasonable risks during the time that the supermarket was open to the public.”

Establishes concurrent duty and proximate causation principles; rejects intervening cause defense when both defendants had duties regarding the dangerous condition.

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Facts & Procedural History

On January 17, 1967, at approximately 3:00 p.m., Joy Brown entered a Winn-Dixie supermarket and was injured when she struck her leg against a metal mi…

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Opinion of the Court
PEARSON, Judge.

PEARSON, Judge.

The appellant, Joy Brown was injured when she tripped on a milk crate left in a supermarket aisle. She sued McArthur Dairies, Inc., whose deliveryman had left the crate in the aisle, and Winn-Dixie Stores, Inc., whose manager operated the supermarket. The defendant McArthur Dairies received a directed verdict in its favor at the conclusion of the plaintiff’s case. The jury returned a verdict for the defendant Winn-Dixie. The plaintiff has appealed the respective judgments entered for the two defendants at the conclusion of the trial. We reverse both judgments.

Mrs. Brown entered the Winn-Dixie supermarket at about three o’clock in the afternoon on January 17, 1967. She went directly to the dairy counter. As she turned to leave the counter she struck her leg against a milk crate and was injured. The crate was made of metal and was approximately one foot high. It had been left against the counter at about seven-thirty in the morning by the milk deliveryman.

The trial judge directed a verdict for McArthur upon the ground that the failure of the employees of the supermarket to remove the milk crate during a six hour period beginning at the time the supermarket opened and continuing until the injury occurred, constituted an independent, intervening, efficient cause of the injury. McArthur supports this view by the citation of Sea Board Air Line Ry. Co. v. Watson, 94 Fla. 571, 113 So. 716 (1927); Atlantic Coast Line R. Co. v. Webb, 112 Fla. 449, 150 So. 741 (1933), and Adair v. Island Club, Fla.App.1969, 225 So.2d 541.

There can be no doubt that under the law expressed in the cited cases the negligence of a defendant must be a proximate cause of the plaintiff’s injury in order for the plaintiff to recover. It is also clear that where there is the intervention of an independent efficient cause producing the plaintiff’s injury, then the defendant’s initial negligence cannot be said to be the proximate cause. The question here is: Does it appear as a matter of law from the plaintiff’s case that the failure of defendant Winn-Dixie to discover defendant McArthur’s negligence acted as an independent, intervening, efficient cause of the plaintiff’s injury? We think that it does not appear as a matter of law that it did so act. Therefore, the directed verdict for McArthur was improperly entered. We reach this conclusion because a jury might reasonably find that McArthur was negligent and that its continuing negligence was later joined by the negligence of the store operator. Both McArthur and Winn-Dixie had a corresponding duty to conduct their business so that the plaintiff and others would not be exposed to unreasonable risks during the time that the supermarket was open to the public. The alleged negligence of the operator of the store if found to be a cause of the plaintiff’s injury, does not constitute the type of conduct which expunges the alleged negligence of the deliveryman. Sardell v. Malanio, Fla.1967, 202 So.2d 746.

The appellant’s points directed to the final judgment for the appellee Winn-Dixie urge several errors. First, it is claimed that the court committed prejudicial error in admitting evidence of a prior accident in which the plaintiff was involved. We think that the testimony which was developed upon cross-examination was proper for the purpose of impeaching the prior testimony of the plaintiff. See Shalley v. Fiore, Fla.App.1964, 161 So.2d 18.

Second, it is urged that the court erred in denying the plaintiff-appellant the right to exercise one of her remaining peremptory challenges. The situation arose *522after the appellant had tendered the jury. It is pointed out that the appellant inaccurately used the words “[w]e will accept the jury, Your Honor”, but the court correctly stated “[pjlaintiff tenders”. Thereafter, but before the jury was sworn, the appellant attempted to use this remaining peremptory challenge. See Fla.Stat. § 53.011, F.S.A. The court denied the appellant’s right without stating the basis for his ruling. The denial of the right to use a remaining peremptory challenge was clearly error. Paris v. Bartfield, 160 Fla. 87, 33 So.2d 713 (1948); Barker v. Randolph, Fla.App.1970, 239 So.2d 110; Funland Park, Inc. v. Dozier, Fla.App.1963, 151 So.2d 460.

Another error assigned by the appellant should be discussed in view of the fact that this cause must be retried. We think that the trial judge improperly instructed the jury upon the duty of a plaintiff to observe existing conditions. The type of factual situation presented by the case at bar warrants the application of the principle of law set forth in City of Jacksonville v. Stokes, Fla.1954, 74 So.2d 278. See also McRae v. Winn Dixie Stores, Inc., Fla.App.1969, 227 So.2d 214.

The appellees have each contended that the judgments should be affirmed because it distinctly appears as a matter of law that the injured plaintiff was guilty of contributory negligence barring her recovery. Among the cases relied upon to support affirmance are Chambers v. Southern Wholesale, Inc., Fla.1956, 92 So.2d 188; Becksted v. Riverside Bank of Miami, Fla.1956, 85 So.2d 130; Earley v. Morrison Cafeteria Co. of Orlando, Fla.1952, 61 So.2d 477, and Isenberg v. Ortona Park Recreational Center, Inc., Fla.App. 1964, 160 So.2d 132. It is clear that there are cases where the obstruction causing injury is so large or so placed that a jury of reasonable men could not differ upon the issue, but we do not think that the instant cause is an example of such a case. Therefore, it is governed by the principles set forth in City of Jacksonville v. Stokes, supra; and Winn Dixie Stores, Inc. v. Williams, Fla.App.1972, 264 So.2d 862, and authorities cited therein. In the Williams case, the following points concerning contributory negligence are elucidated:

* * * * * *
“The question of contributory negligence is whether plaintiff used due care for her own safety taking into account all the circumstances, of which the visibility of the object encountered is an important one but still only one of the circumstances.”
* * * % * *
“Contributory negligence is normally a question for the jury and only when there is no basis upon which a plaintiff should be permitted to recover by virtue of her own negligence is a court justified in taking a cause from the jury on a plea of contributory negligence.”
# * * * * *

We therefore decline to hold, as the trial judge initially declined to hold, that the injured appellant was guilty of contributory negligence as a matter of law.

Since we have reached the conclusion that prejudicial error occurred during the trial the judgment for the defendant Winn-Dixie Stores, Inc., is reversed with directions to grant the plaintiff a new trial. As we have also reached the conclusion that the directed verdict for Mc-Arthur Dairies, Inc., was improperly entered, the judgment for McArthur is reversed with directions to proceed to trial thereon. Accordingly, the judgments appealed are reversed and the cause is remanded with directions.

Reversed and remanded.


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Citator

Cited By

  • Fla. Rock Indus., Inc. v. United Bldg. Sys., Inc., 408 So. 2d 630 (Fla. 5th DCA 1981)
    …rged and petition dismissed, 157 So. 2d 815 (Fla.1963), and var [*632] ious other appellate cases, held that the denial to a litigant of peremptory challenges to which he is entitled constitutes reversible error. In Brown v. McArthur Dairies, Inc., 280 So. 2d 520 (Fla. 3d DCA 1973), the plaintiff’s attorney questioned the jury and then tendered it to the court. Before the jury was sworn, the attorney attempted to exercise his remaining peremptory, and the trial court denied this motion without giving any bas…
  • Saborit v. Worthy Deliford, 312 So. 2d 795 (Fla. 3d DCA 1975)
    …s error. Mann v. State, 23 Fla. 610, 3 So. 2d 207; Grabow v. Lehrer, Fla.App.1969, 224 So. 2d 767; Barker v. Randolph, Fla.App. 1970, 239 So. 2d 110, 113; Cuervo v. Garcia, Fla.App.1971, 246 So. 2d 579; Brown v. McArthur Dairies, Inc., Fla.App.1973, 280 So. 2d 520. Thus in Barker v. Randolph, supra, the court said: “It is not infrequent that the answer to a question or questions propounded by opposing counsel develops a lead indicating a juror may not be impartial in his views or thinking.” In Brown v. McAr…
  • Lifschitz v. Filomena Troccoli and Emilio Troccoli, 436 So. 2d 951 (Fla. 3d DCA 1983)
    …ng that (1) the visibility of the danger Troccoli encountered and whether she used due care under the circumstances are issues properly left for the jury, see City of Jacksonville v. Stokes, 74 So. 2d 278 (Fla.1954); Brown v. McArthur Dairies, Inc., 280 So. 2d 520 (Fla. 3d DCA 1973); Bryant v. Florida Inland Theatres, Inc., 274 So. 2d 249 (Fla. 2d DCA 1973), and (2) Lifschitz has failed to meet his burden of demonstrating prejudicial error regarding comments of the trial court, see Thompson v. Martin, 216 So.…

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