548 So. 2d 689 | Fla. Dist. Ct. App. | 1989
Lead Opinion
These are consolidated appeals from a final judgment for the defendant and a final judgment on defendant’s motion to tax costs. We will address appellants’ second point first, as that will be dispositive of both issues on appeal.
Appellants were attending the dog races at appellee’s facility, Palm Beach Kennel Club, when Mrs. McCurry allegedly slipped and fell on a liquid allowed to accumulate on the floor. Although Mrs. McCurry could not identify the exact substance which caused her to slip, she testified as to the back of her pants being wet immediately after the fall. Mr. McCurry testified that beer and Coca-Cola were on the floor, as well as betting tickets that were allowed to pile up from race to race. Appellants do not contend that Mrs. McCurry slipped on a betting ticket, but offered that evidence to support their theory of constructive notice to appellee.
Appellants offered testimony at trial to the effect that other patrons of the kennel club, on the night of the accident, were walking back and forth across the area where Mrs. McCurry fell with their beverage cups, and were drinking their beverages in the aisles. There was no specific offer of testimony that any particular patron was seen spilling his beverage. The trial court sustained appellee’s objection on grounds of relevancy.
At the close of appellants’ case, the trial court granted a directed verdict in favor of appellee, relying on Publix Super Markets, Inc. v. Schmidt, 509 So.2d 977 (Fla. 4th DCA 1987).
We find that this matter is most closely related to the supreme court case of Wells v. Palm Beach Kennel Club, 160 Fla. 502, 35 So.2d 720 (1948), and our own opinion in Fazio v. Dania Jai-Alai Palace, Inc., 473 So.2d 1345 (Fla. 4th DCA 1985). In the Wells case, the court said:
One operating a place of amusement like a race course where others are invited is charged with a continuous duty to look after the safety of his patrons. Both sanitary and physical safety of its patrons require that receptacles be provided for bottles and that they be so placed.
We do not mean to imply that they are insurers of the safety of their patrons, but we do say that reasonable care as applied to a race track requires a higher degree of diligence than it does when applied to a store, bank or such like place of business.
Id. 35 So.2d at 721. We find that it was error for the trial court to preclude appellants’ offered testimony as to what the other patrons were doing with their beverages on the night of the accident. Such testimony would be clearly relevant to the
Upon admission of such testimony, we could not then say it would be proper for the trial court to grant a directed verdict in favor of appellee. This additional evidence, coupled with evidence in favor of appellants that was adduced at the first trial, and the permissible inferences the jury might draw therefrom, may be sufficient upon retrial so as to preclude the granting of a directed verdict.
We therefore reverse and remand for a new trial consistent with this opinion.
Rehearing
ON REHEARING
In its motion for rehearing, appellee correctly identifies error in our opinion dated July 7, 1989, wherein we said:
Mr. McCurry testified that beer and Coca-Cola were on the floor as well as betting tickets that were allowed to pile up from race to race.
While Mr. McCurry did refer to seeing the betting tickets on the floor, our incorrect reference to his testifying to seeing beer and Coca-Cola on the floor was inadvertently derived from the following exchange in the testimony:
Q. Now, do you know what kind of substance it was that she slipped on?
A. No, I’m not sure what it was. I always thought it was coke or beer.
Q. Why do you say that?
A. Well there was a lot of people around there drinking coke and beer. You hardly ever see anybody drinking water.
Appellants offered testimony that on the night of the accident, other patrons of the Kennel Club were drinking beverages in the aisles and carrying beverage cups while walking back and forth across the area where Mrs. McCurry fell. There was no specific offer of testimony that any particular patron was seen spilling his or her beverage. The trial court sustained appel-lee’s objection to the testimony on grounds of relevancy.
On rehearing, we must recede from that portion of our July 7, 1989, opinion finding it was error for the trial court to exclude such testimony. Appellee having brought to our attention that Mr. McCurry never testified as to having actually seen Coke or beer on the floor, it would have been at best discretionary for the trial court to allow the proffered testimony about what the patrons were doing concerning their beverages.
Having made this correction, we are still of the view that it was error for the trial court to grant a directed verdict in favor of appellee. The testimony that there were betting tickets on the floor would still give rise to an inference that appellee’s personnel were negligent as to their maintenance of the area in which Mrs. McCurry fell. We still find Wells v. Palm Beach Kennel Club, 160 Fla. 502, 35 So.2d 720 (1948), and Fazio v. Dania Jai-Alai Palace, Inc., 473 So.2d 1345 (Fla. 4th DCA 1985), support our conclusion that the question of liability was one for the jury and would preclude the granting of a directed verdict.
Accordingly, the result as stated in our opinion of July 7, 1989, stands. The cause is reversed and remanded for a new trial consistent with this opinion.
