Nunez v. GF Car Center, Inc is an appeal after Justo Nunez sued G.F. Car Center, Inc. d/b/a Exxon Gas station. ” D/b/a” means “doing business as.” The gas station was a franchisee of Exxon.
This means they likely had a commercial general liability (CGL) insurance policy. It may be easier to get money from an insurance company than a huge corporation like Exxon.
The District Court of Appeal (DCA) of Florida, Third District, issued its opinion on June 2, 2004. This case is still good law.
The 3rd DCA located in Miami, encompasses Dade and Monroe Counties. Thus, this accident likely happened in either Dade or Monroe county.
Both the injured man and the Exxon gas station were represented by Miami lawyers. This is not my case. However, I have settled many Florida slip and fall claims.
Nunez had a slip and fall that resulted in a fracture of his leg and knee. He claimed that either grease, water, or some form of liquid on the five-inch raised sidewalk outside the store had remained there for an unreasonable amount of time so as to create a dangerous condition.
Tip: If the condition that you slip on is not dangerous, then you do not have a slip and fall case. There needs to be something dangerous about the floor that you fell on. Sometimes this can be liquid, water or grease.
Although Nunez could not identify what made him fall, his wife observed a grease spot on the right seat of his blue jeans and on the bottom of his right sneaker.
My thoughts: It is not good for your case if you, or a witness, cannot identify what may have caused you to fall.
Because Nunez had been taken directly to the hospital after his fall, and the grease stains were discovered while he was still hospitalized, it is a reasonable inference that Nunez had fallen as a result of grease accumulating in that area.
This was sufficient to create a general issue of material fact sufficient to let the case go to a jury. This was a great result for the injured man.
One of the judges wrote a dissent. A dissent is a minority opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment.
The dissenting judge said he thought the case should be dismissed. Essentially, he disagreed with the result. Unfortunately, I think that every judge today would agree with the dissenting opinion and dismiss this case.
Dissenting Opinion
The dissenting opinion said that Nunez claimed that the Exxon gas station was negligent in allowing a dangerous condition to exist for an unreasonable length of time on a raised sidewalk from which he fell. However, there is no direct evidence that there was a substance of any type at the spot where Nunez said he fell.
Indeed, the direct evidence is to the contrary. Nunez testified that prior to the accident, he traversed the path where he fell on his way to the bathroom and did not see anything on the raised sidewalk.
Tip: Your case is generally worth less if, shortly before you fell, you walked through the area where you ultimately fell. The gas station will argue that you should have seen the substance before you fell if you previously walked in the area.
Moments later, after his fall on his return trip from the bathroom, he still could not identify what may have caused him to slip and fall.
The gas station attendant who came out to help Nunez likewise stated that she saw no foreign substance in the area where Nunez fell.
It hurts your slip and fall (on a substance) case if a gas station employee says that they did not see a foreign substance where you fell.
The gas station attendant said that a routine inspection of the premises earlier that morning also revealed no foreign matter or debris.
This also hurt her case because the gas station claimed that its morning routine inspection was reasonable.
The dissenting judge said that Nunez had no direct evidence, and he seeks to rely upon circumstantial evidence to prove his case, namely the testimony of his wife, who, though not having witnessed the slip and fall, claims that she observed a greasy substance on his pant seat bottom and sneakers when she received these items from the hospital several days later.
It seems that the judge would have given more weight to the wife’s testimony if she had witnessed the fall. The judge also seems uncomfortable with the fact that the wife claimed she saw a greasy substance on his clothing and shoes several days after the fall.
You should always inspect your clothing as soon as possible following the fall. Don’t wait days to inspect it, like the man’s spouse did, in this case.
She threw away his shoes and pants.
Warning! Do not throw away your clothes. It may bother the judge and can kill your case.
Based on her testimony, the majority concluded that there exists a “reasonable inference that Nunez fell as a result of grease accumulating in that area.” The dissenting judge disagreed.
He said that negligence may not be inferred from the mere happening of an accident. Winn Dixie v. White, 675 So.2d 702 (Fla. 4th DCA 1996). (Learn about slip and fall injury claims against Florida Winn Dixie stores).
Circumstantial evidence “will not support a jury inference if the evidence is purely speculative and, therefore, inadequate to produce an inference that outweighs all contrary inferences.” Food Fair Stores, Inc. v. Trusell, 131 So.2d 730, 733 (Fla.1961). (Learn about slip and fall injury claims against Florida supermarkets).
The dissenting judge said that in order to find the gas station liable in this case, the jury would necessarily have to infer:
(1) that the purported greasy substance existed in the area where plaintiff lost his footing,
(2) that the plaintiff slipped and fell as a result of directly stepping on the assumed substance, and
(3) that the defendant either caused the assumed substance to be on the sidewalk or had actual or constructive notice of such assumed dangerous condition. He said that such stacking of inferences is impermissible from the evidence.
He said that Florida courts have long held that in order to sustain a prima facie showing of negligence, a party can rely on circumstantial evidence, however the initial inference must be established to the exclusion of any other reasonable theory or inference. Hurst v. Astudillo, 631 So.2d 380 (Fla. 3d DCA 1994).
“The established rule of evidence is that we cannot construct a conclusion upon an inference which has been superimposed upon an initial inference supported by circumstantial evidence unless the initial inference can be elevated to the dignity of an established fact because of the presence of no reasonable inference to the contrary.”Commercial Credit Corporation v. Varn, 108 So.2d 638, 640 (Fla. 1st DCA 1959).
This statement essentially means that the initial inference be established to the exclusion of any other reasonable theory or inference. Publix Super Markets, Inc. v. Schmidt, 509 So.2d 977, 978 (Fla. 4th DCA 1987) (“cannot construct a further inference upon the initial inference in order to establish a further fact unless it can be found that the original, basic inference was established to the exclusion of all other reasonable inferences”). (Learn more about Publix slip and fall injury claims in Florida).
Otherwise, summary judgment dismissal for the gas station is proper. Summary judgement dismissal would mean that the case is dismissed because there are no genuine issue of material fact.
In this case, the parties agree that there is no direct evidence of a foreign substance being on the ground at or near the spot where Nunez fell.
However, the majority believes that we must infer that either “grease, water, or some form of liquid” existed on the raised sidewalk “for an unreasonable amount of time” based on the wife’s testimony that some kind of greasy substance was on the missing clothing that she received from the hospital a few days after the accident.
This inference cannot “be elevated to the dignity of an established fact” in this case. The dissenting judge said that for example, Nunez may have tracked the greasy substance from some other location prior to the fall.
The judge also said that the hospital or ambulance service may have rubbed a greasy substance on the clothing in the removal process or in giving aid.
These alternative explanations, i.e. contrary reasonable inferences, prevent the elevation of the initial inference concerning grease at the exact spot where Nunez stepped “to the dignity of an established fact.”
Florida law, in very similar factual circumstances, has not allowed such a loose inference to be drawn and raised to the level of an established fact. See Hamideh v. K-Mart Corp., 648 So.2d 824, 825 (Fla. 3d DCA 1995) (even though plaintiff described a “clear liquid” on the floor and on her shoe, the court affirmed (approved) dismissal since an employee stocking shampoo “is insufficient, without more, to create an inference that … the shampoo-like substance was on the floor”); Publix Super Markets, Inc. v. Schmidt, 509 So.2d 977, 978 (Fla. 4th DCA 1987) (though plaintiff did not know what caused her to slip near the deli counter, and noticed grease on her skirt at the hospital, the court ruled against the plaintiff, finding that she “failed to show how the dangerous condition, if any, was created”).
The dissenting judge said that secondly, even assuming the existence of a foreign substance in the vicinity of where Nunez fell, it would be a pure guess for a jury to then conclude that the accident occurred as a result of Nunez stepping on a foreign substance, as opposed to, for example, a misstep. See Winn Dixie Stores, Inc. v. White, 675 So.2d 702, 703 (Fla. 4th DCA 1996) (customer could not identify what caused her to slip and fall, and an employee with a buffer nearby was insufficient to establish negligence since the inference “could only be drawn through speculation and conjecture”); Hurst v. Astudillo, 631 So.2d 380 (Fla. 3d DCA 1994) (court could not infer negligence by inferring that a defective or inadequate ladder was provided, and then further inferring that such negligence was the proximate cause of plaintiff’s fall, when the first climb up the ladder proved successful, and plaintiff did not know if the ladder slipped, or what caused it to slip on the second ascent).
My thoughts: The dissenting judge took issue with the fact that Nunez could not identify what made him fall.
The wife’s testimony of the alleged stains on the vanished apparel, even assuming their truthfulness in favor of the plaintiff, is insufficient to infer negligence to the exclusion of any other reasonable theory, such as tracking grease from some other location, application of grease by the hospital or ambulance staff, collecting grease on impact, or an unfortunate misstep and fall, irrespective of the assumed grease.
The judge is saying that sometimes a gas station customer may have an unfortunate misstep and fall. It is not always due to a gas station’s carelessness.
The dissenting judge said that because the first inference, as well as the second, are shaky, the last inference of adequate notice is essentially a moot point. Nevertheless, here also, Florida case law would demand a dismissal for the gas station owner. See Publix Super Markets, Inc. v. Schmidt, 509 So.2d 977, 978 (Fla. 4th DCA 1987) (court ruled against plaintiff with grease on her skirt, finding that she “failed to show how the dangerous condition, if any, was created, who caused it, how long it existed, or that the store was responsible”); Hamideh v. K-Mart Corp., 648 So.2d 824, 825 (Fla. 3d DCA 1995) (even though plaintiff described a “clear liquid” on the floor and on her shoe, the court dismissed the case since an employee stocking shampoo “is insufficient, without more, to create an inference that the gas station caused the shampoo-like substance to be on the floor or that store owner had either actual or constructive notice of dangerous condition”).
Nunez, himself, testified that he saw nothing on the raised sidewalk on his walk to the facility’s restroom. Only moments later he crossed the same platform before his fall, and he still did not know what caused him to fall, and could not identify any substance in the vicinity.
The gas station employee said that she saw nothing post-fall, and her earlier inspection revealed no dangerous condition. It would now be pure guesswork to believe that he fell as a direct result of stepping on an assumed greasy substance, and then to assume the defendant had adequate notice of this “possible” substance.
The dissenting judge said that in sum, his effort to launch a premises liability case based upon his wife’s circumstantial testimonial evidence must fail. Any verdict bottomed thereon in this case would be “purely speculative.” The dissenting judge said that he would dismiss the case.
My thoughts: As I said earlier, I am almost 100% certain that today’s judges would agree with the dissenting judge. This is why I shared his opinion.
This appeal was Nunez v. GF Car Center, Inc., 877 So. 2d 31 – Fla: Dist. Court of Appeals, 3rd Dist. 2004.
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