Slip and fall cases against supermarkets in Florida are governed by an area of the law known as torts–specifically, premise liability. When someone brings a claim against a grocery store, shopping mall, fast-food restaurant, or gas station for a personal injury and sues the defendant, several defenses are typically asserted to try to prevent the injured person from ever getting the case to a jury.
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FLORIDA LAW FOR BUSINESS OWNERS IN SLIP AND FALL CASES
Under Florida law, businesses owe two “separate and distinct” duties to their customers:
1) to warn of concealed dangers which are or should be known to the owner and which are unknown to the customer; and
2) to use ordinary care to maintain the premises in a reasonably safe condition.
More than a half-century ago, Florida’s Supreme Court recognized that a business invitee is entitled to expect that the owner will take “reasonable care to discover the actual condition of the premises and either make them safe or warn of dangerous conditions.” It is equally well settled that the business property owner has a right to assume that the invitee will perceive that which would be obvious to him upon the ordinary use of his own senses.
This means that Winn-Dixie and other Florida business owners have no duty to warn against an “open and obvious condition which is not inherently dangerous.”
Courts have gone on to clarify that the dangerous condition of an object–not simply the object itself–should be considered in either granting or denying a motion for summary judgment. The courts are likewise clear that a duty to warn is different than the duty to maintain the premises.
The motion for summary judgment is a potent defensive move used by Florida businesses that are sued for slip and fall injuries; the motion can often get a personal injury case dismissed, allowing a corporate defendant entirely to escape having to pay an injured plaintiff in a premise liability case. The law in Florida basically holds that a defendant is not responsible for a slip-and-fall or trip-and-fall accident that occurs when the cause of the accident is a condition that was “open and obvious” to the plaintiff–in other words, when the condition’s dangerousness was equally known to both parties.
A case in point is the claim of Thomas Brookie, who was injured when he tripped and fell over a pallet, which he testified he had previously seen and walked around before he fell at his local Winn-Dixie supermarket. Our Miami personal injury law firm does not represent Mr. Brookie, but according to the court’s records, Mr. Brookie went to Winn-Dixie to make a purchase and get empty boxes. During this visit, he made a total of four trips into and out of the store. On the first trip, Appellant made his purchase and took it to his car; he then made three more trips into the store to get some empty boxes. Simultaneous to his last journey into the store, a beer delivery was being made on a pallet that was stacked approximately five feet high between Winn-Dixie’s entrance and exit doors. An empty pallet was left to the right of the exit.
Mr. Brookie testified that he had not seen the empty pallet until his third trip into the store, when he tripped and fell over the pallet’s extended prongs (as opposed to the pallet itself), thus suffering serious personal injuries. He then sued Winn-Dixie for negligently failing to warn him of the alleged dangerous condition (beer pallet) and for negligently failing to make the sidewalk safe for him to cross.
Filing a Motion for Summary Judgement in a Slip and Fall Case
It comes as no surprise that Winn-Dixie moved for summary judgment and that the trial court granted summary judgment in its favor. Specifically, the trial judge found that Winn-Dixie owed no duty to warn Mr. Brookie of the pallet or its prongs because he testified that he was aware of the alleged dangerous condition. The trial judge found the condition to have been “so open, obvious, and ordinary” that it was “inherently not dangerous as a matter of law.” Mr. Brookie appealed.
In this case the appellate court also found that Winn-Dixie did not violate any legal duty to Mr. Brookie because he had observed the pallet but was injured by failing to use due care for his own safety. The court reasoned that a reasonable person could have easily avoided the obstacle and thereby prevented an injury since in this case, Mr. Brookie admitted that he saw the empty pallet when he exited the store and took four more steps before tripping over it.
I disagree with the result in this case after reading a lengthy and somewhat over-the-top opinion by Judge B. L. Thomas from Florida’s First District Court of Appeal. His majority opinion seemed hell-bent on making sure Mr. Brookie’s case was dismissed, and I respectfully suggest it conflated the duty to warn with the duty to maintain the premises. The opinion went on and on about how Mr. Brookie knew of the pallet before he fell and if the court were to allow this one case to go to the jury, a floodgate of litigation would open against premise owners, converting their duty to warn into effectively becoming outright insurers of any customers who visit their stores.
But what about the fact that Winn-Dixie left a beer pallet in its entrance way–where it knew or should have known that customers like Mr. Brookie would be forced to cross to enter its store? This dissimilar logic simply makes no sense, and the dissenting opinion authored by Judge Bilbrey articulates why the summary judgment should have been reversed.
In the end, I believe this case–like many premise liability cases that are dismissed in favor of business owners and cruise lines–demonstrates the unfortunate, conservative, pro-business culture running rampant in many courtrooms across the country. This decision deprived Mr. Brookie of his true day in court. If a jury had turned him away after a fair trial, I could accept it and agree with the result, but I cannot accept depriving him of a trial in its entirety. This is the reality that injured plaintiffs like Mr. Brookie and their lawyers must consider when evaluating their cases: What is the likelihood they will ever get their case to a jury versus the chance it will be dismissed by a judge on summary judgement?
This is an evaluation and decision we must make in our personal injury cases every time we file a lawsuit on behalf of an injured cruise ship passenger–because many of these legal concepts are the same in Federal maritime passenger injury claims.
Hiring an Attorney for a Slip and Fall at a Florida Grocery Store
If you have been injured by slipping, tripping, or falling at a business in Florida, it is important that you consult with and hire an experienced premise liability attorney. Our Miami personal injury law firm has over 30 years of combined legal experience representing people from around the world in slip, trip, and fall cases across the State of Florida, from Jacksonville to Key West.
Call our office today and speak with a Miami personal injury lawyer–toll-free at 1-866-597-4529, locally at 305-441-0440–or reach us by email [email protected] or SKYPE. We are passionate about holding business owners responsible when they put their profits ahead of people’s safety. Call us today–we are ready to help you recover from your accident and receive monetary compensation for your time lost from work, medical expenses, changes in the quality of your life, pain, and suffering.