Summary
affirming summary judgment in favor of defendant where plaintiff alleged a shoe mark was present near the liquid causing her injury
Summary of this case from Hernandez v. Sam's E., Inc.Opinion
No. 91-341.
October 22, 1991. Rehearing Denied November 21, 1991.
Appeal from the Circuit Court of Dade County, Ronald M. Friedman, J.
Miguel A. Suarez, Miami, for appellant.
Robert A. Ginsburg, County Atty., and Robert G. Davies, Asst. County Atty., for appellee.
Before BARKDULL, HUBBART and COPE, JJ.
The final summary judgment entered in favor of the defendant Jackson Memorial Hospital in this slip-and-fall negligence action is affirmed based on the following briefly stated legal analysis.
First, we conclude (a) there are no genuine issues of material fact on the issues of adequate inspection and constructive notice, and (b) the defendant is entitled to a judgment as a matter of law on these issues. Unlike a supermarket or retail sales store, the hospital hallway where the subject accident happened did not have nearby food, sales products, or other substances on shelves or anywhere else in the hallway which might drop to the floor and thus create a dangerous condition thereon. This being so, an intensive floor inspection program to discover foreign substances on the floor was, as a matter of law, unnecessary. Moreover, the defendant's employee had cleaned the subject hallway at least twelve hours before the subject accident, and the defendant had a routine inspection system in place, although at unstated intervals, to discover foreign substances in the subject hallway. Beyond that, we are not persuaded by the claim that a shoe mark in some clear liquid discovered about a foot away from where the plaintiff slipped and fell raises a triable issue as to whether the liquid on which the plaintiff slipped and fell was there for sufficient length of time to give the defendant constructive notice of its presence. Unlike Winn Dixie Stores, Inc. v. Guenther, 395 So.2d 244 (Fla. 3d DCA 1981), and Zayre Corp. v. Bryant, 528 So.2d 516 (Fla. 3d DCA 1988), (a) there were no extensive track marks through the liquid in question, but only a single shoe mark, and (b) the accident occurred in a hospital hallway [as opposed to a supermarket or retail store] where, as a matter of law, an intensive floor inspection program was not required to discover spilled liquids. See Winn-Dixie Stores, Inc. v. Marcotte, 553 So.2d 213, 215 (Fla. 5th DCA 1989); Emmons v. Baptist Hosp., 478 So.2d 440, 442 (Fla. 2d DCA 1985), rev. denied, 488 So.2d 67 (Fla. 1986).
Second, we cannot agree that the defendant's employees created the dangerous condition by waxing the floor upon which the plaintiff slipped and fell. The dangerous condition in this case was not the waxed hallway which, indeed, the plaintiff and others were able to traverse without incident. Nonskid wax was used to wax the hallway and there is no indication of any waxy buildup or slipperiness in the hallway outside the place where the clear liquid was located. The dangerous condition herein was therefore the clear liquid in the waxed hallway upon which the plaintiff slipped and fell. Accordingly, the defendant was entitled to a summary judgment on this issue. See Publix Super Markets, Inc. v. Schmidt, 509 So.2d 977 (Fla. 4th DCA 1977); Padilla v. Tulso Enter., 307 So.2d 884 (Fla. 3d DCA 1974); cf. Partelow v. Edgar, 219 So.2d 72 (Fla. 4th DCA 1969). But cf. First Fed. Sav. Loan Ass'n of Miami v. Wylie, 46 So.2d 396 (Fla. 1950) (where plaintiff, unlike here, presented extensive evidence regarding known unsafe application of wax, and there was no other substance of which defendant had notice involved in the fall).
Affirmed.
BARKDULL and HUBBART, JJ., concur.
I respectfully dissent. In my view there are disputed issues of material fact which preclude entry of summary judgment in favor of defendant Jackson Memorial Hospital.
It is axiomatic that in considering a motion for summary judgment, all factual inferences must be drawn in favor of the nonmoving party, in this case the plaintiff. The burden rests on the defendant, as movant for summary judgment, to demonstrate the nonexistence of any disputed issue of material fact.
The plaintiff in this case proceeded essentially on the theory that the fall was caused by improper waxing of the floor, or a water spill on the floor, or both. As to the first contention, the deposition testimony of one of the witnesses, Juan Jimenez, indicated that the floor had too much wax on it and that the wax was slippery. Both Jiminez and the plaintiff testified that at the site of the fall, there was a slippery mixture of water and wax, rather than simply water on wax.
The hospital's defense on this point was that it uses a nonskid wax on the floors, which is not slippery. The hospital's affidavit said that much and no more. It may be that the hospital will prevail at trial, but I do not think the hospital's affidavit is sufficient to overcome the testimony of the plaintiff and the witness, particularly given the testimony suggesting excessive or improper application of the wax. If a slippery condition was caused by improper or excessive application of wax, then that would constitute actionable negligence.
Plaintiff's alternative argument is that the water spill (or water combined with wax) had been on the floor long enough that the hospital should have discovered it and cleaned it up. On that point I also believe that there is a disputed issue of material fact. This court has said:
Defendants, relying on Food Fair Stores of Florida, Inc. v. Patty, Fla. 1959, 109 So.2d 5, contend that the established slip and fall rule in Florida is that if a dangerous condition exists on the floor in an area open to the public, the owner or occupant of the property will not be held liable for ensuing injuries if the record fails to show how the condition was created, the length of time the condition existed before the accident or whether the store or some other agency was responsible for the condition. While this is the general rule, a defendant owner or occupant of a store may still be held liable for injuries if the dangerous condition on the floor existed for a sufficient length of time to charge defendant with constructive knowledge. Carls Markets, Inc. v. Meyer, Fla. 1953, 69 So.2d 789; Haley v. Harvey Building, Inc., Fla. App. 1964, 168 So.2d 330. Proof that a dangerous condition existed long enough so that it should have been discovered by the owner defendant may be proved like any other fact, by circumstantial evidence. Jenkins v. Brackin, Fla.App. 1965, 171 So.2d 589.Winn Dixie Stores, Inc. v. Williams, 264 So.2d 862, 863 (Fla. 3d DCA 1972), cited with approval in Montgomery v. Florida Jitney Jungle Stores, Inc., 281 So.2d 302, 305 (Fla. 1973); see also Broz v. Winn Dixie Stores, Inc., 546 So.2d 83 (Fla. 3d DCA 1989).
Plaintiff submitted an interrogatory answer stating that where she fell, "the water area had a dark color strip, depicting that some one had walked over it before I did." The foot mark was within one or two feet from plaintiff's position where she fell. At deposition she testified that the foot mark was like "when somebody slips and there is a dark shadow like. . . . It is from . . . the bottom of the shoe that slips like that. . . ." The color was black or brown. Plaintiff also testified that she had waited at the entrance to the hallway for about ten minutes before walking down the hallway, and did not see either a spill or any cleaning activity in the area. In my view, given the interrogatory answer and deposition testimony, there is a disputed issue of material fact on the issue of constructive notice.
The hospital argues that plaintiff retreated from her interrogatory answer during her deposition by testifying that the skid mark was next to the wet area, not in it. After review of the plaintiff's testimony, I do not think it is susceptible of the reading the hospital gives it, and thus the interrogatory answer stands as stated above.
Based on the record as it now stands, I would reverse the summary final judgment.