NELLIE MCDERMOTT, APPELLANT,
v.
ALF C. ENGSTROM AND FLORENCE ENGSTROM, HIS WIFE, AND EVANS G. NELSON AND DOROTHEA NELSON, HIS WIFE (DOING BUSINESS AS CO-OWNERS JOINTLY UNDER THE FICTITIOUS NAME DIXIE CAFETERIA) AT 551 FIRST AVENUE NORTH, ST. PETERSBURG, FLORIDA, AND THE TIMES PUBLISHING COMPANY, AND WILLIAM STALKER, APPELLEES
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A woman was injured when her shoe caught on a newspaper rack in a cafeteria vestibule. The Florida Supreme Court reversed the trial court's dismissal of her complaint, holding that the complaint stated a viable cause of action for negligence despite the defendant's argument that the rack was plainly visible.
The complaint stated a sufficient cause of action for negligence. Although the rack may have been plainly visible from one direction, it was not visible from the direction from which the appellant approached, and the trial court erred in dismissing the complaint on the ground that the defendant's negligence would be counteracted by the appellant's failure to exercise care.
“We cannot agree with the view that the rack was not hidden but on the other hand was so plainly perceptible that even if there was negligence on the part of the appellees it would be counteracted by the failure of the appellant to care for her own safety by avoiding what she could have easily seen had she looked.”
The court's central holding rejecting the defendants' argument that obvious visibility defeats a negligence claim.
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Join FLexlaw to unlock all legal intelligenceThe defendants operated a cafeteria in St. Petersburg with a vestibule entrance 8 feet wide and 19 inches deep. A wire newspaper rack, 30 inches high …
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THOMAS, Justice.
The circuit judge granted the motions of the various defendants to dismiss the amended complaint and the appellant appealed from the final judgment that was then entered.
The appellees — 'Nelsons and Engstroms— operated in St. Petersburg a cafeteria on the north side of First Avenue North. Entrance to the doors opening into the cafeteria is gained through a vestibule that is 8 feet wide and 19 inches deep.
A wire rack 30 inches high and 19 inches wide, designed to display newspapers published by appellee — The Times Publishing Company — was set in the vestibule against the east wall and extended at the base 4 or 5 inches from the wall. At the time the appellant claims to have been injured, the rack contained no newspapers.
In the afternoon of 5 January 1954 the appellant approached the cafeteria from the east and started to enter for the purpose of buying food. She alleged that she was watchful of her own safety but that she did not see the rack. As she turned into the recess the toe of her shoe became caught in the wire supports of the rack and she fell with such force that her kneecap was broken and she was painfully injured. Such is the substance of the complaint which the judge thought failed to state a cause of action.
We cannot agree with the view that the rack was not hidden but on the other hand was so plainly perceptible that even if there was negligence on the part of the appellees it would be counteracted by the failure of the appellant to care for her own safety by avoiding what she could have easily seen had she looked. Earley v. Morrison Cafeteria Co. of Orlando, Fla., 61 So. 2d 477. Our difficulty in accepting appellees’ view comes from the nature of the rack when considered with the direction from which appellant approached it. Had she come from the west it would have been clearly in view, a framework of wires, 30 x 19 inches in size. But she came from the east and from that vantage point none of it was visible. Even as she rounded the corner and her shoe was caught, only the lowest part could well be seen. Cf. Brisson v. W. T. Grant Company, Fla., 79 So. 2d 771.
The circumstances detailed in the complaint formed, we think, sufficient basis for an answer. The judgment is
Reversed.
DREW, C. J., and HOBSON and THORNAL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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6345 Collins Ave., Inc. v. Murray A. Fein, 95 So. 2d 577 (Fla. 1957)…easonable care for his safety in view of them, and having failed to make use of his ordinary senses to see them he is guilty of contributory negligence. Plaintiff in his brief urges that the holding of this Court in McDermott v. Ergstrom, Fla.1955, 81 So. 2d 553, is applicable. In that case a newspaper rack protruding from a wall was plainly seen if approached from one direction, but could not be seen in advance when approached from another. This Court held that the rack constituted a trap when approached f…
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Sunday v. Ikinson, 103 So. 2d 669 (Fla. 3d DCA 1958)…reasonable men that he could not have seen the protruding portion of the table or taken more than one or two steps before tripping over it. The circumstances of the instant case are much closer to those set forth in McDermott v. Engstrom, Fla.1955, 81 So. 2d 553. Accordingly the summary judgment is reversed. Reversed and remanded. CARROLL, CHAS., C. J., and HORTON, T., concur.…
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McHARGUE v. The Great Atl. & Pac. TEA Co., Inc., 209 So. 2d 283 (Fla. 1st DCA 1968)…nd 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.…
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- Abarca v. Bass Pro Outdoor World, LLC (Fla. 3d DCA 2025)
- Olive G. Brisson v. W. T. Grant Co., 79 So. 2d 771 (Fla. 1955)