Update 8/6/15: I only talk about the parts of the case that are still good law. Even though this case was decided years ago, for purposes of slip and fall law, the parts that I discuss are as if this case was decided yesterday.
Understanding this case is important to understanding Florida slip and fall cases against Publix and other supermarkets. You should know this case.
In Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 329 (Fla. 2001), Evelyn Owens and John Owens sued Publix Supermarket. The case was ultimately decided by the Florida Supreme Court.
This is not my case. However, though I have handled Florida slip and fall cases against Publix Supermarkets.
Attorneys
Mr. and Mrs. Owens were represented by two attorneys: one from Kissimmee, Florida and another from Miami, Florida.
Publix was defended by the Rissman law firm, which is located in Orlando, FL. Publix still uses the Rissman firm (now known as Rissman Barrett) to defend it in Florida slip and fall cases and other personal injury cases. Publix uses several other law firms as well.
Another case was combined into this appeal. It is Elvia Soriano and Angel Soriano v. B & B Cash Grocery Stores.
(B & B Cash Grocery Stores owns Handy Food Stores. All Handy stores sell gasoline. All properties and operations are located in central and southwest Florida.) Learn about personal injury claims against Florida gas stations.
The court held that, in a slip and fall case, the condition of a transitory foreign substance is itself sufficient to establish constructive knowledge. By “transitory foreign substance,” the court meant any liquid or solid substance, item or object located where it does not belong. See Black’s Law Dictionary 660 (7th ed. 1999) (A foreign substance is “a substance found … where it is not supposed to be found”).
FACTS
1. Owens
Evelyn Owens (“Owens”), along with her husband John Owens, brought this personal injury lawsuit against Publix Supermarkets, Inc. (“Publix”). Owens was a part-time employee in the Publix bakery.
On March 4, 1995, after she completed her work for the day, Owens “clocked out” but stayed at Publix to do some grocery shopping. While walking down an aisle, Owens slipped and fell on a discolored piece of banana lying on the floor.
Tip: Since Owens slipped and fell after she clocked out, she is not entitled to workers compensation benefits.
At trial, Owens did not present any direct evidence of the length of time the piece of banana was on the floor. In fact, Owens testified that she did not see the substance that had caused her to fall.
Tip: You may still have a case even if you did not see the substance that caused you to fall. However, you will generally need another individual who saw the substance.
However, Alma Jean Ross, another shopper in the store, testified that she was walking down the chip and bread aisle at the same time as Owens and that Owens had slipped on “a piece of banana” without the peel, which was about an inch or longer and “kind of mushed … where she hit it … kind of squashed down.”
When asked if the banana was discolored, Ross responded, “Very much, uh-huh. It wasn’t black, but it was dark.” Ross said that she had been at Publix “about three or four minutes” before encountering Owens, but admitted she had no knowledge of how long the banana had been on the floor.
As to the maintenance and inspection of the floors, there was evidence that it was the responsibility of Publix employees to look out for items on the floor and that managers would walk the store, “inspecting everything.”
However, Publix did not keep inspection records and there was no evidence presented as to when the particular aisle was last inspected.
In addition, Owens presented evidence that nine slip-and-fall accidents had occurred at that Publix within the last nine months, but none of these occurred on the aisle in which she fell and no other details were provided as to the nature of these accidents, including whether the individual fell on a transitory foreign substance.
These 9 past slip and fall accidents did little to help Owens in this case. This is because they did not occur where she fell. She also had no details about the cause of the fall.
The court said that “Actual or constructive knowledge is irrelevant in cases not involving transitory, foreign substances (i.e., the typical banana peel case), if enough evidence of negligent maintenance can be shown.” Mabrey v. Carnival Cruise Lines, Inc., 438 So.2d 937, 938 (Fla. 3d DCA 1983). (Learn about slip and fall injury claims against Carnival Cruise lines).
After Owens presented her case-in-chief, Publix moved for a directed verdict on liability, arguing that Owens failed to present any evidence that Publix had actual or constructive knowledge that the banana piece was on the floor.
Finding that the evidence of the condition of the banana was not enough to establish a basis for Publix’s liability, the trial court directed a verdict and entered final judgment for Publix.
The appeals court compared this case to Montgomery v. Florida Jitney Jungle Stores, Inc., 281 So.2d 302 (Fla.1973), reasoning that the plaintiff in Montgomery, who slipped and fell on a collard leaf was able:
“to present additional circumstances to establish the span of time the leaf had been on the floor. These additional circumstances were:
(1) Plaintiff and her husband had been in the area of the fall for fifteen minutes prior to the accident;
(2) No other shoppers were around the area where she fell;
(3) No one swept the floor during that period;
(4) During this period, two store employees were in the area;
(5) Not only was the leaf wilted but it was also ‘dirty looking’.”
(Side Note: Winn-Dixie bought Jingle Jitney in 2000. Learn about slip and fall injury cases against Winn Dixie in Florida).
2. Soriano
Like Evelyn Owens, Elvia Soriano also injured herself when she slipped and fell on a discolored piece of banana in a grocery store. See Soriano v. B & B Cash Grocery Stores, Inc., 757 So.2d 514 (Fla. 4th DCA 1999).
Florida’s 4th District Court of Appeal (DCA) handles appeals from Palm Beach, Broward, St. Lucie, Martin, Indian River, and Okeechobee Counties. The 4th DCA is located in West Palm Beach, Florida.As stated in the Fourth District’s opinion:
“The store employee who helped Mrs. Soriano to her feet took a piece of banana peel off her shoe. Mrs. Soriano described the piece of peel as being brown with very little yellow in color.
The store manager testified that the store tried not to sell brown bananas, as customers generally do not like to buy bananas after they turn brown. Mrs. Soriano acknowledged, however, that the store did sell brown bananas with skin like the piece on which she slipped.
At trial, Jose Alvarez, the former store manager of B & B Cash Grocery Store (“B & B”) testified that the store kept daily inspection reports “to remind us to check the store on an hourly basis.”
Nevertheless, when asked if the store in general was swept hourly, Alvarez replied, “To be honest, no. We try to do it but, no. We tried to sweep as many times as we could.”
Alvarez said that no one was assigned the duty to sweep the floors at a certain time every day, and that all of the daily inspection reports were completed at one time.
He admitted that the reports, which indicated that someone went around inspecting at a specific time, were false.
Alvarez further stated that he was aware that these inspection reports were being falsified, that everyone at the management level of the store knew about it, and that an assistant manager who came from another store told him that it was done that way in every store in which he had worked.
Moreover, Alvarez said that there were no sweeping records for the day of Soriano’s accident. Alvarez said that customers “all the time” would eat food in the store before they get to the cash registers.
He also admitted that on occasion customers would eat the fruit that was for sale in the store and on occasion customers would drop the food they were eating.
There was “no additional evidence to establish that the banana peel was on the floor for any length of time, such as cart tracks, foot prints, dirt, or even grit.
As to Soriano’s additional contention that there was evidence that B & B employees had failed to fill out inspection reports and sweep on a regular basis, the Fourth District, relying on Rowe v. Winn-Dixie Stores, Inc., 714 So.2d 1180 (Fla. 1st DCA 1998), held that it would not apply a theory of negligent mode of operation as “an alternative to requiring actual or constructive notice where injuries result from slipping on a foreign substance in a market setting.”
Analysis
The Florida Supreme Court explained the following:
A. Florida’s Slip and Fall Law
1. Actual or Constructive Notice Requirement Related to Transitory Foreign Substances
All premises owners owe a duty to their invitees to exercise reasonable care to maintain their premises in a safe condition. See, e.g., Everett v. Restaurant & Catering Corp., 738 So.2d 1015, 1016 (Fla. 2d DCA 1999).
Despite this general rule, when a person slips and falls on a transitory foreign substance, the rule is that the injured person must prove that the premises owner had actual knowledge or constructive knowledge of the dangerous condition “in that the condition existed for such a length of time that in the exercise of ordinary care, the premises owner should have known of it and taken action to remedy it.” Colon v. Outback Steakhouse of Florida, Inc., 721 So.2d 769, 771 (Fla. 3d DCA 1998).
Constructive knowledge may be established by circumstantial evidence showing that:
(1) “the dangerous condition existed for such a length of time that in the exercise of ordinary care, the premises owner should have known of the condition;” or
(2) “the condition occurred with regularity and was therefore foreseeable.” Brooks v. Phillip Watts Enter., Inc., 560 So.2d 339, 341 (Fla. 1st DCA 1990).
In the latter category, evidence of recurring or ongoing problems that could have resulted from operational negligence or negligent maintenance becomes relevant to the issue of foreseeability of a dangerous condition. See generally Wal-Mart Stores, Inc. v. Reggie, 714 So.2d 601, 603 (Fla. 4th DCA 1998); Nance v. Winn Dixie Stores, Inc.,436 So.2d 1075, 1076 (Fla. 3d DCA 1983). Check out Walmart slip and fall accident claims in Florida.
The Florida Supreme Court then talked about the Montgomery case.
In Montgomery, it upheld a jury verdict for the injured person where she had evidence that she had been in the area of the fall for fifteen minutes before falling; no other shoppers were in the area when she fell; no employee swept the floor while she was there; two employees were nearby when the accident occurred; the collard leaf upon which she slipped was old, wilted and dirty looking; and water was on the floor where she fell.
The court did not determine in Montgomery whether the condition of the collard leaf alone would have been enough to establish constructive notice of a dangerous condition. Owens.
Instead, they noted that constructive notice “may be proved, like any fact, by circumstantial evidence.” Montgomery, 281 So.2d at 304. They stated that since there was a conflict in the evidence, the jury should decide the case.
Tip: You want the jury to decide your case.
Why is it important to have a jury to decide your Florida Publix slip and fall case?
If your case can get past dismissal and to a jury, this usually gets Publix to make an offer. You have a chance of winning at trial.
Also, it should get Publix to make an offer to settle. They may also make an offer before you sue.
Depending on the description of the transitory foreign substance, some appellate courts have concluded that the appearance of the transitory foreign substance may in itself be sufficient to create a jury question on constructive notice. See:
- Ramey v. Winn Dixie Montgomery, Inc., 710 So.2d 191, 192-93 (Fla. 1st DCA 1998) (partially melted butter with lumps in it);
- Woods v. Winn Dixie Stores, Inc., 621 So.2d 710, 711 (Fla. 3d DCA 1993) (unidentified substance described as “very dirty,” “trampled,” “containing skid marks, scuff marks,” and “chewed up”);
- Ress v. X-tra Super Food Ctrs., Inc., 616 So.2d 110, 110-11 (Fla. 4th DCA 1993) (substance that appeared to be sauerkraut was “gunky, dirty and wet and black”);
- Hodges v. Walsh, 553 So.2d 221, 222 (Fla. 2d DCA 1989) (sticky substance in bowling alley had dried). See claims for slip and fall accidents at bowling alleys in Florida.
- Washington v. Pic-N-Pay Supermarket, Inc., 453 So.2d 508, 509 (Fla. 4th DCA 1984) (collard green leaves were “old, nasty” and “looked like they had been there for quite a while”);
- Camina v. Parliament Ins. Co., 417 So.2d 1093, 1094 (Fla. 3d DCA 1982) (ice cream was thawed, dirty, and splattered).
The Third District’s decision in Newalk v. Florida Supermarkets, Inc., 610 So.2d 528 (Fla. 3d DCA 1992), shows a case where the court found that the condition of a transitory foreign substance created a jury question on constructive notice. (This means that the jury was allowed to decide this case, which is what the injured person wants.)
In Newalk, the court held that testimony that oil spots were on the floor and that the spots appeared old was in itself sufficient for the question of liability to go to the jury. In determining that the trial court correctly denied the supermarket’s motion for directed verdict, the court stated:
“Newalk’s friend’s testimony that oil spots were on the floor and that the spots appeared old was as least some evidence indicating the unidentified spots were present for a sufficient length of time for the owners in their exercise of reasonable care to have acted to remedy the condition.
Thus, because the testimony of Newalk’s friend was at least some evidence of negligence, the question of the market’s liability properly went to the jury.
It was up to the jury to conclude whether the substance had been on the floor for a sufficient length of time that the owner should have known of the condition and corrected the condition regardless of who created it.”
On the other hand, where there was nothing about the description of the substance that would indicate the length of time it was on the floor, courts have dismissed cases before they get to a jury on deciding the issue of negligence. See:
- Publix Super Market, Inc. v. Sanchez,700 So.2d 405, 406 (Fla. 3d DCA 1997) (a piece of cake was on the floor, but there was no evidence as to how long it had been on floor);
- Wal-Mart Stores, Inc. v. King,592 So.2d 705, 707 (Fla. 5th DCA 1991) (slippery, oily, clear substance, but no evidence of “signs of age, such as skid marks, smudges, or the like“);
- Winn-Dixie Stores, Inc. v. Marcotte, 553 So.2d 213, 215 (Fla. 5th DCA 1989) (slippery substance, but no evidence as to how or when it got on the floor, or the length of time it was there before the fall);
- Winn Dixie Stores, Inc. v. Gaines, 542 So.2d 432, 432 (Fla. 4th DCA 1989) (loose dried rice and beans, but no evidence that they appeared old or were ground into the floor or crushed, and no evidence of broken packages).
The question of whether a jury issue is created in any given case may still depend on the transitory foreign substance showing some signs of deterioration or aging.
Thus, with Florida case law making constructive notice of the dangerous condition the vital thing for liability, an injured person‘s ability to establish constructive notice is often dependent on the being lucky and observing the substance’s condition.
The Cases on Review – Owens and Soriano
In both Owens and Soriano, evidence of the deteriorated condition of the foreign substance provided a sufficient basis for the plaintiff’s in these cases to let the jury decide the case.
The aging condition of the banana in each case gave rise to a reasonable inference that the aging occurred on the floor. If the aging occurred on the floor, this would provide circumstantial evidence of constructive notice; that is, that it was on the floor a sufficient period of time so that the defendant knew or should have known of its existence.
The fact that there may be other explanations inconsistent with the deterioration occurring on the floor does not make the circumstantial evidence of constructive knowledge fatally deficient. Teate v. Winn-Dixie Stores, 524 So.2d 1060 (Fla. 3d DCA 1988).
Rather, the condition of the substance gives rise to an inference that the aging occurred on the floor and allows the jury to make the ultimate determination as to whether the dangerous condition resulted from the store’s failure to properly maintain and inspect the floors. This analysis is consistent with the Florida Supreme Court’s opinion in Montgomery.
Often, the outcome of whether the case will be decided by the jury depends on the exact description of the transitory foreign substance.
Under Florida law, all premises owners owe a duty to their invitees to exercise reasonable care to maintain their premises in a safe condition. The existence of a transitory foreign substance on the floor is not a safe condition.
At a supermarket, customers get products directly from the store’s displays, which are arranged to invite customers to focus on the displays and not on the floors.
Want to Learn more about Publix injury claims in Florida?
Check out these articles:
- Slip and falls at Florida Publix Supermarkets
- Trip and falls at Florida Publix Supermarkets
- Publix Supermarket Injury Claims for Florida Accidents
- $31,000 Verdict : Slip and Fall at Publix Resulted in Back Surgery
- Herniated Disc Slip and Fall Claims with Publix Supermarket in Florida
- Publix Supermarket Shoulder Injury Claims from Slip and Falls in Florida
- $96,000 Verdict : Hip Fracture from Trip and Fall at Publix in Miami, Florida
- Florida Court Dismissed Slip and Fall near Deli Counter at Florida Publix
Did a Florida Publix’s carelessness cause you to slip or trip and fall and suffer an injury in Florida? Were you injured somewhere else and/or in another type of accident?
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