If you slip on a waxy floor, fall and get hurt, you may have a case. This article focuses on slip and falls on wax at premises in Florida or on a cruise ship.
A great way to talk about whether you have a case is to look at a past Florida cases.
Kitchen v. Ebonite Recreation Ctrs., Inc., 856 So. 2d 1083, 1085 (Fla. 5th DCA 2003)
In Kitchen, Kay Ann Kitchen sued Ebonite Recreation Centers. Florida’s District Court of Appeal, Fifth District issued an opinion on October 17, 2003.
The Fifth District Court of Appeal is comprised of Hernando, Lake, Marion, Citrus and Sumter Counties; Flagler, Putnam, St. Johns and Volusia Counties; Orange and Osceola Counties; and Brevard and Seminole Counties.
Kay Ann Kitchen appealed a final order entered by the trial court granting Ebonite Recreation Centers’ motion for summary judgment (dismissal) and dismissing her personal injury lawsuit.
Appeals Court Says Case Shouldn’t Be Dismissed
The appeals court determined that genuine issues of material facts are in dispute, and the case shouldn’t be dismissed.
This means that the appeals court let the case continue to trial. Kitchen filed suit against Ebonite asserting a claim of premises liability and seeking damages for injuries which she sustained when she slipped and fell while at its bowling alley.
The lawsuit claimed that Ebonite had negligently maintained the lanes on which Kitchen was bowling by allowing the floor behind the bowling line to be waxed causing Kitchen to slip and fall.
In her deposition, Kitchen said that on the day of the accident, after about 30-45 minutes at the bowling alley, she attempted to help a student learn how to throw the ball correctly by showing her to take a few steps and then let the ball go, “and that’s when I slipped, and I was not across the line.”
She Said She’d Never Been on a Bowling Floor That Was Slick Like Grease
She stated that she had “never been on a bowling floor that was slick like that, greasy like.” Kitchen stated that there wasn’t any question that “there was something on the floor.”
When asked if she saw any substance on the floor before she slipped, Kitchen stated: “It was real shiny, but I couldn’t—very shiny…. It looked like grease to me, and that’s all I can tell you. And it wasn’t just in my lane, it was in a lot of lanes.”
Bowling Center’s Insurer Probably Cut Claim Value in Half
Since she said that she saw the grease looking substance on the floor before her fall, the claims adjuster probably cut the full value of the case in half for this fact.
The bowling alley could argue that she should have stopped bowling if she saw a substance “that looked like grease” to her and “it “wasn’t just in her lane, it was in a lot of lanes.”
The court said that Kitchen’s testimony was sufficient to create a genuine issue of material fact as to Ebonite’s liability. See Troya v. Miami Beach Health Care Group, Inc., 780 So.2d 228 (Fla. 3d DCA 2001).
This means that the appeals court let her case to trial.
Court Lets Slip and Fall on Floor Continue; Floor May Have Had “Too Much Wax”
In Troya v. Miami Beach Health Care Group, Inc., 780 So.2d 228 (Fla. 3d DCA 2001), Miriam Troya sued Miami Beach Health Care Group, Inc.
The 3rd District is made up of Dade and Monroe Counties. Though this case is older, it is still good law.
In fact, the 2012 case of Benjamin v. Tandem Healthcare, Inc., 93 So.3d 1076, 1081 (Fla. 4th DCA 2012) recently cited Troya. Let’s look at the facts of the Troya case.
A Miami, Florida lawyer represented Troya. Fort Lauderdale attorneys represented Miami Beach Health Care Group, Inc.
Troya Was Visiting a Friend and Slipped While Leaving the Patient Room
After visiting a friend at a location owned by 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 statement, as soon as she fell, an otherwise unidentified hospital employee exclaimed that there had been “too much wax” on the floor.
A deposition is witness’s sworn out-of-court testimony. On the ground that this statement was alone sufficient to create an issue as to the defendant’s liability for the fall, the appeals court let the case continue towards trial.
The Goal is to Get the Case to Trial
The injured person wants his or her case to get to trial. The defendant tried to get the case dismissed before trial.
The appeals court said that the Florida decided cases clearly establish that the statement about the excess wax[1] was admissible as a party admission under section 90.803(18)(d), Florida Statutes (2000). This is good for the injured person.
Appeals Court Looked at 3 Other Cases to Prevent This Case From Being Dismissed
The appeals court cited the following Florida cases:
In Chaney v. Winn Dixie Stores, Inc., 605 So.2d 527, 529 (Fla. 2d DCA 1992), a statement of an apparent but unidentified Winn Dixie store employee that “[she] called that boy a few minutes ago to come here and clean this up” was admissible against employer to establish actual or constructive notice of a dangerous condition. (Learn more about slip and fall cases against Winn Dixie in Florida.)
In Thee v. Manor Pines Convalescent Center, Inc., 235 So.2d 64, 65 (Fla. 4th DCA 1970), a statement of unidentified person dressed as a 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 a dangerous condition.
In Ortiz v. Winn Dixie Stores, Inc., 511 So.2d 765, 765 (Fla. 3d DCA 1987), Ms. Ortiz stated after the incident “I heard somebody dragging something and they said, “They ought to move this s____t out of the way.” And the people said, “We was clearing the floor.”
The appeals court said that this should prevent dismissal on liability on the ground that only Winn-Dixie would have undertaken the responsibility of removing the offending object from the floor of its own establishment.
In Troya, the appeals court said that it is clear also that it was sufficient to provide an acceptable competent evidentiary basis for the finding that the defendant, the only entity that 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 prevented the court from dismissing the case. This is what the injured person wanted. I do not know whether this case eventually settled or went to trial.
One Judge Said Case Should Get Dismissed
One of the judges wrote a dissent. A dissent is a minority opinion written by one or more judges expressing disagreement with the majority opinion of the court.
The dissenting judge said he thought the case should be dismissed. Essentially, he disagreed with letting this case continue towards trial.
You should read this dissenting opinion because a judge in your case may have the same view.
The dissenting judge said that the other judges improperly think that an excessively waxy floor is slippery and dangerous.
Bowler Said She Didn’t See Anything Out of the Ordinary Where She Fell
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 said that the floor was “waxy.”[2] At the time of the fall, Troya was overweight and wore strapless, spiked two or three-inch heeled shoes.
Witness Said Nothing Was on the Floor
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 walked across the area where Troya fell.
- She did not notice anything out of the ordinary about the floor.
- 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.
Hospital Housekeeping Director Said Floors Are Never Waxed
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 hallways and nursing stations, are to be spray-buffed at least twice per week.
The dissenting judge agreed that the statement 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.
Minority Judge Said a Waxy Floor Isn’t Always Dangerous
But the dissenting judge said the 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.”
Minority Judge Says Waxy Doesn’t Mean Slippery
The dissenting judge said that:
- There is nothing inherently dangerous about a floor being “waxy.”
- “Waxy” does not mean slippery.
- The other judges have not cited to any case that says that an excessively waxed floor is inherently dangerous. However, there is support for the opposite conclusion. See Hinson v. Cato’s, Inc., 271 N.C. 738, 157 S.E.2d 537, 538 (1967) (Not a Florida case.)
In Hinson, the claimant 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, “the 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.”
The dissenting judge said that he would rule that Troya’s evidence was not enough to create an issue of fact in order to avoid the entry of summary judgment. This means that he would dismiss the case.
If another judge had agreed with him, the case would have been dismissed.
Footnotes
[1] 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 Miami Beach Health Care Group’s argument is based on the disagreement that evidence only that an offending floor was “slippery” or “waxy” is not enough to raise a liability issue. The appeals court disagreed with Miami Beach Health Group for two reasons.
First, because the evidence must be viewed in the light most favorable to the injured visitor, the “too much wax” version must be accepted as true on this appeal.
Case Gets to Trial if Floor is Slippery and Thus Waxy
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 injured person’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.”
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.
[2] At another point in her deposition, Troya testified, “they said that floor had too much wax on it.”
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