164 So. 2d 864 | Fla. Dist. Ct. App. | 1964
Appellants, the owners and operators of a self-service food market, have appealed a final judgment entered upon a jury verdict rendered in favor of appellees. It is contended, among other things, that the trial court erred in denying appellants’ motions for a directed verdict on each of the two causes of action alleged in the complaint filed against them, which motions were made at the conclusion of plaintiffs’ evidence and again at the conclusion of all evidence submitted by the parties.
This is a typical slip and fall case occurring on the premises of a food market. The complaint filed by appellees alleges that appellee Margaret Rogers was a customer in appellants’ store, and as she walked along one of the aisles near the produce department she stepped on a piece of vegetable matter which caused her foot to slip from under her throwing her heavily and violently to the floor resulting in bodily injuries for which she claimed damages. Ap-pellees’ complaint alleges two distinct causes of action (a) for operational negligence in that the defendants or their employees negligently placed vegetable matter on the floor thereby creating a dangerous condition which proximately resulted in the injuries sustained by appellee, or, in the alternative, (b) for negligent acts of omission in that the defendants knew, or through the exercise of reasonable care should have known, of the presence of vegetable matter on the floor which constituted a dangerous condition, which condition existed for a period of time sufficient to have allowed appellants to remedy the condition and prevented the ensuing injury to appellee.
Appellants contend upon the authorities hereinafter mentioned that plaintiffs’ proof was wholly insufficient to establish a cause of action for operational negligence as alleged in their complaint, and that the court erred in denying their motion for directed verdict on this cause of action for which appellees claimed damages.
In Food Fair Stores, Inc. v. Trusell
In Trusell there was evidence to the effect that bag boys were supposed to empty the shopping buggies of paper, debris, loose particles of vegetables or greens before stacking them, and that sometimes loose leaves did fall from the buggies to the floor, being shaken loose by the stacking process. In holding that the evidence in Trusell was not sufficient to support a cause of action on the theory of operational negligence the Supreme Court, speaking through Justice Thornal, said:
“ * * * It is apparent that a jury could not reach a conclusion imposing liability on the petitioner without indulging in the prohibited mental gymnastics of constructing one inference upon another inference in a situation where, admittedly, the initial inference was not justified to the exclusion of all other reasonable inferences. If permitted, this would be directly contrary to the cases which we have cited. Hence the direct conflict between the instant case and our prior decisions.”
The case of Winn-Dixie Stores, Inc. v. Manning
“In the present case, wherein plaintiffs also rely on operational procedure of defendant as creating a hazardous condition, there was, as was true of the lettuce fragment in the Trusell case, no testimony as to how the grapes came to be on the floor, how long they had lain there, or who placed them there. No testimony indicated whether they were caused to be on the floor by an employee or a customer. As related, this case is not concerned with the question of either actual or constructive knowledge.
“A conclusion that the presence of the grapes on the floor was a result of operational negligence through employees of defendant that created the hazard claimed would necessitate conjecture. Circumstantial evidence in a civil action will not support jury inference if that evidence is purely speculative and is inadequate to produce an inference outweighing all contrary or opposing inferences. * * * ”
It is our view that the decision in the case sub judice should be and is controlled by the decisions rendered in the Trusell and Manning cases, supra. The evidence is wholly insufficient to establish the cause of action alleged in the complaint which is based upon the claim of operational negligence by defendant and its employees. As a matter of fact the correctness of this conclusion is conceded by appellees who, after discussing in their brief the proof offered at the trial in support of their cause of action premised upon operational negligence, say: “If this was the only evidence and issue in this case, then the plaintiffs would be forced to concede that a verdict should be directed against them.” Appellees contend, however, that the evidence is sufficient to establish a prima facie case of liability on the cause of action premised on constructive knowledge and based upon the claim that defendant and its employees negligently permitted the vegetable matter creating a dangerous condition to remain on the floor of their store an unreasonable length of time during which they could have removed
It is our view that the trial court erred in denying appellants’ motion for a directed verdict on the cause of action alleged in the complaint charging defendants with operational negligence. This error was compounded by the trial judge in his instructions to the jury wherein he fully charged the jury on the law relating to operational negligence and instructed that if the jury found plaintiffs had proved the allegations of their complaint by a preponderance of the evidence, then a verdict should be rendered for them. Since the evidence was insufficient to establish a prima facie case of operational negligence, this cause of action should have been withdrawn from jury consideration and no instructions relating to the law governing this issue should have been given to the jury. In the case of Sirmons v. Pittman,
As clearly implied by the trial judge in the course of the conference settling the instructions in this cause, the only theory upon which he denied plaintiff’s motion for a directed verdict was that there existed competent material evidence from which the jury might conclude that Mrs. Sirmons met her death as the result of an ‘unavoidable accident’ (see the above quoted colloquy). As we have said, however, the evidence is insufficient to support that premise. Where the operator of an automobile, through his negligence, has produced a situation of danger, he cannot avoid liability for the resulting accident on the ground that after the situation had arisen the accident was unavoidable, or that he did all he could, or all that could be expected of him, to avoid it; nor is a collision unavoidable, so as to relieve a motorist of liability, if he was guilty of negligence proximately contributing to the collision. 60 C.J.S. Motor Vehicles § 256, p. 623. The conclusion is therefore inescapable that giving the instruction in question was prejudicial error in that it tended to mislead and confuse the jury.
“The final judgment in favor of defendant Drummond is reversed and the cause remanded for a new trial.”
For the reasons set forth above, the judgment appealed is reversed and the cause remanded for further proceedings consistent with the views set forth herein.
Reversed.
. Food Fair Stores, Inc. v. Trusell (Fla.1961), 131 So.2d 730.
. Winn-Dixie Stores, Inc. v. Manning et al. (Fla.App.1962), 143 So.2d 330.
. Sirmons v. Pittman et al. (Fla.App.1962), 138 So.2d 765.