Opinion
No. 3D00-963
Opinion filed February 14, 2001.
An Appeal from the Circuit Court for Dade County, Alan Postman, Judge. Lower Tribunal No. 98-27993.
Pierce E. Rivera, for appellant.
Haliczer, Pettis White and Debra Potter Klauber and Amy B. Halisman (Fort Lauderdale), for appellees.
Before SCHWARTZ, C.J., and SHEVIN and RAMIREZ, JJ.
After visiting a friend at the Miami Heart Institute, Ms. Troya slipped, fell and was injured as she was leaving the patient's room. According to the plaintiff's deposition, as soon as she fell, an otherwise unidentified hospital employee exclaimed that there had been "too much wax" on the floor. On the ground that this statement was alone sufficient to create an issue as to the defendant's liability for the fall, we reverse a summary judgment entered below for the hospital.
The decided cases clearly establish that the statement about the excess wax was admissible as a party admission under section 90.803(18)(d), Florida Statutes (2000). See Chaney v. Winn Dixie Stores, Inc., 605 So.2d 527, 529 (Fla. 2d DCA 1992) (statement of apparent but unidentified store employee that "[she] called that boy a few minutes ago to come here and clean this up" admissible against employer to establish actual or constructive notice of dangerous condition); Thee v. Manor Pines Convalescent Center, Inc., 235 So.2d 64, 65 (Fla. 4th DCA 1970) (statement of unidentified person dressed as nursing home employee that accident happened because "milk got spilled, but we mopped it up" admissible against employer to establish actual or constructive notice of dangerous condition); Shuck v. Texaco Refining Marketing, Inc., 178 Ariz. 295, 872 P.2d 1247 (1994); cf. Ortiz v. Winn Dixie Stores, Inc., 511 So.2d 765, 765 (Fla. 3d DCA 1987) (Schwartz, C.J., dissenting).
In another version of the employee's statement, Ms. Troya testified that she had said simply that the floor was "waxy." A good deal of the appellee's argument is based on the contention that evidence only that an offending floor was "slippery" or "waxy" is insufficient to raise a liability issue. We disagree for two reasons.
First, because the record must be viewed in the light most favorable to the appellant, the "too much wax" version must be accepted as gospel on this appeal. Even were this not so, however, the Florida law clearly indicates that testimony that a floor upon which a fall occurred was "slippery" — and thus "waxy" — is enough. In Torrence v. Sacred Heart Hospital, 251 So.2d 899, 901 (Fla. 1st DCA 1971), the court held:
[The plaintiff's] first notice of anything wrong was when "My feet started slipping." When she tried to catch herself, she grasped the wall. When she did this, she could not maintain her balance. "It was too slippery." She had no knowledge of anything wrong with the floor at that time. "Just that it was slippery. I seen nothing but it just felt slippery." "It would feel as though I had mopped my house and had a lot of wax." [e.s.]
See First Fed. Sav. Loan Ass'n v. Wylie, 46 So.2d 396 (Fla. 1950); Fritts v. Collins, 144 So.2d 850 (Fla. 2d DCA 1962). The question need not be reached here because the floor was more than just "waxy": too much wax had been applied.
It is clear also that it was sufficient to provide a competent evidentiary basis for the conclusion that the defendant, the only entity which would have put the wax there, was negligent in doing so excessively. See Ladenson v. Eder, 195 So.2d 211 (Fla. 1967); Chaney; Torrence v. Sacred Heart Hospital, 251 So.2d 899 (Fla. 1st DCA 1971);Thee; see also First Fed. Sav. Loan Ass'n v. Wylie, 46 So.2d 396 (Fla. 1950); Fritts v. Collins, 144 So.2d 850 (Fla. 2d DCA 1962). This evidence therefore requires the reversal of the summary judgment granted below and a remand for trial. See Chaney; Thee.
Reversed and remanded.
SCHWARTZ, C.J., and SHEVIN, J., concur.
I respectfully dissent because the majority improperly equates an excessively waxy floor with a slippery and dangerous one.
Appellant Miriam Troya admitted in her deposition that she did not see anything out of the ordinary on the floor where she fell. She did not see any water or other substance on the floor. She also did not see anyone cleaning the floor during her forty-five minute visit with the patient. She did testify, however, that an unidentified hospital employee declared that the floor was "waxy." At the time of the fall, Troya was overweight and wore strapless, spiked two or three-inch heeled shoes.
At another point in her deposition, Troya testified that "they said that floor had too much wax on it."
Raquel Berman, a physical therapist present in the patient's room when Troya fell, but who did not witness the fall, immediately assisted Troya. In her affidavit, Berman stated that when Troya fell, the floor did not have any debris, foreign objects or clutter on it, and there was no water, liquid or build up of wax on the floor. Berman testified that, prior to Troya's fall, she traversed the area where Troya fell and did not notice anything out of the ordinary about the floor. Berman also testified that the floors were always kept clean and shiny, and were mopped every day. Berman has never seen the maintenance workers actually buff the patient room floors with their equipment and does not know when the rooms are buffed, but she believes that the rooms are buffed when empty.
According to Timothy Parker, the director of the hospital's housekeeping and management services, the patient room floors are never waxed. Instead, the floors are dry mopped and occasionally spray-buffed with a slip-resistant product. Pursuant to the hospital's housekeeping services agreement, the patient room floors are to be spray-buffed at least once per week. All traffic areas, including corridors and nursing stations, are to be spray-buffed at least twice per week.
I agree that the concession by the hospital employee that the floor was "waxy" or "too waxy" falls under the hearsay exception of section 90.803(18)(d), Florida Statutes (1999), as an admission by the hospital's agent or servant concerning a matter within the scope of the agency or employment. See Thee v. Manor Pines Convalescent Ctr., Inc., 235 So.2d 64 (Fla. 4th DCA 1970). But this statement does not demonstrate that a "waxy" floor, even an excessively waxy floor, is necessarily a dangerous condition. The American Heritage Dictionary of the English Language (3d ed. 1996) defines "waxy" as "1. Resembling wax, especially: a) Pale. b) Smooth and lustrous. c) Pliable or impressionable. 2. Consisting of, abounding in, or covered with wax." There is nothing inherently dangerous about a floor being "waxy." "Waxy" is not synonymous with slippery.
The majority has not cited to any case which holds that an excessively waxed floor is inherently dangerous. However, there is support for a contrary conclusion. See Hinson v. Cato's, Inc., 157 S.E.2d 537, 538 (N.C. 1967) (The plaintiff saw a waxy, slick spot on the floor and a skid mark made by her heel through the spot where she fell. The court stated, "[t]he mere fact that one slips and falls on a floor does not constitute evidence of negligence, nor does the fact that a floor is waxed make the owner liable.").Therefore, I would hold that Troya's evidence was not sufficient to create an issue of fact in order to avoid the entry of summary judgment.