Publix Supermarkets, Inc. v. Jessie Bellaiche
43 Fla. L. Weekly D673a, March 28, 2018
The Third District Court of Appeal reversed plaintiff’s $1.5 million slip-and-fall verdict, holding that a jury may not stack inferences to determine that a party had actual knowledge of a dangerous condition, nor is the mere possibility of causation sufficient to establish liability.
Plaintiff was shopping at a Publix store with her husband. While walking up an aisle, the plaintiff slipped and fell on some water, which she did not see beforehand. Plaintiff and her husband both asserted, that after the fall, they saw a Publix employee with a mop in his hand. There was no evidence at trial that the mop was ever wet, or that the employee had been using it. Further, there was testimony by the store manager that Publix utilized dry rayon mops to mop the floors for purposes of not creating puddles of water from mopping. Video surveillance also showed that the only custodian, who duty it was to mop the floors, had only been using a broom and dustpan prior to the plaintiff’s fall. Plaintiff did testify that after she fell, her pants were wet. A jury found in favor of the plaintiff and awarded her $1,500,000. After trial Publix filed motion for a directed verdict, new trial, and remittitur, all of which the trial court denied.
Florida Statute 768.0755 codifies the burden of proof for plaintiff’s to establish in premises liability matters for slip and falls on transitory foreign substances in a business establishment. It states in relevant part:
- If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be provided by circumstantial evidence showing that:
- The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or
- The condition occurred with regularity and was therefore foreseeable.
Based on section 788.0755, Florida Statutes, plaintiff was required to prove that Publix had actual or constructive knowledge of a dangerous condition created by a transient foreign substance that caused her to slip and fall. During the trial and in her response to the post-trial motions, plaintiff stated that she was not proceeding under a theory of constructive knowledge, but under a theory of actual knowledge because she alleged that “the man standing with the mop” caused the water to be on the floor.
The Third District reviewed the denial of Publix’s post-trial motions and analyzed the testimony at trial. It found the evidence presented by plaintiff of Publix’s actual notice of the alleged water on the floor was plaintiff’s assertion that there was a man holing a mop standing in front of her after she fell, but the video evidence clearly demonstrated that the only janitor on duty at the time had not been using anything other than a broom and a dustpan leading up to the exact moment at which plaintiff fell, and not once person testified that the mop which the man was holding was wet. The Third District stated that “at best, a reasonable jury could only arrive at a verdict for [plaintiff] by stacking inferences drawn from purely circumstantial evidence presented, which it cannot do.”, and cited Montgomery v. Fla. Jitney Stores, Inc., 281 So. 2d 302, 305-06 (Fla. 1973) (A jury may not stack inferences to determine that a party had actual knowledge of a dangerous condition, nor is the mere possibility of causation sufficient to establish liability). The Third District reversed the trial court’s denial of Publix’s motion for direct verdict and remanded to the trial court with instructions to enter judgement in Publix’s favor.
Dawson v. Berg,
43 Fla. L. Weekly D641a, March 22, 2018,
In a case where plaintiff suffered a broken leg as a result of a collision with defendant’s dog, plaintiff appealed a trial court’s entry of final summary judgment in favor of defendant.
Plaintiff volunteered at the local Humane Society where she helped take care of a dog park. On the day in question, plaintiff was at the dog park while defendant’s dog and other dogs were present. Defendant’s dog was chasing other dogs at the park when it collided with plaintiff, resulting in plaintiff suffering a broken leg and requiring extensive medical care. Plaintiff filed a complaint against defendant under Florida Statue 767.01, which imposes liability on dog owners for damage their dogs cause to other persons or animals. The statute states:
Owners of dogs shall be liable for any damage done by their dogs to a person or to any animal included in the definitions of “domestic animal” and “livestock” as provided in Section 585.01.
Florida Statute 767.01 is strict liability statute that has consistently been construed to virtually make an owner the insurer of the dog’s conduct. Jones v. Utica Mut. Ins. Co., 463 S. 2d 1153, 1156 (Fla. 1985). The only total defense to liability available in section 767.01, is for the dog owner to have “displayed in a prominent place on his or her premises a sign easily readable including the words “Bad Dog.” Section 767.04, Fla. Statutes.
In this case, defendant presented evidence regarding two signs prominently displayed at the entrance to the dog park which listed ten and eleven rules for entrance to the dog park, respectively. Defendant also presented evidence that plaintiff had assumed the risk of injury. The rules listed on the signs noted that park use is at “the dog owner’s risk”, dogs “exhibiting aggressive behavior” were not permitted, and “rough play and chasing” were not allowed if owners were uncomfortable with the behavior. One sign included a rule which stated that visitors enter the dog park at their own risk. Plaintiff had seen and understood these signs prior to the incident at issue, and evidence demonstrated that plaintiff was aware that she could be injured in the course of her work. Evidence also demonstrated that plaintiff signed a volunteer application form acknowledging that she could be exposed to bites, scratches and other injuries, one year earlier she watched a dog collide with another individual resulting in a broken leg, and following that incident plaintiff spoke multiple times with others at the Humane Society about the dangers of being inside the dog park. Lastly, moments before her own collision, plaintiff noticed the dogs chasing each other and stated, “This looks like leg breaking territory. I better get out of here.” Based on the evidence presented the trial court granted defendant’s motion for summary judgment, finding that the dog park rules signs were sufficient under section 767.04, and that plaintiff had actually consented or assumed the risk of injury.
On appeal, the First District Court reversed the trial court’s order. The appellate court noted the purpose of the statutory sign requirement is to give “genuine, effective and bona fide” notice “that a bad dog is on the premises” (quoting Carroll v. Moxley, 241 So. 2d 681, 683 (Fla. 1970), and held that the trial court erred in finding that the dog park rules signs were sufficiently equivalent to the “Bad Dog” signs to preclude liability under section 767.01. As to the trial court’s finding that Plaintiff has assumed the risk of injury, the court noted that judicial authority in Florida has clearly laid out the rule that there are no common law defenses (i.e. assumption of risk) to the statutory cause of action based on sections 767.01 and 767.04. Noting that while there may be evidence to support the trial court’s conclusion that the Plaintiff did consent to the risk of injury, an actual consent or assumption of the risk defense cannot bar liability. Rather, the Legislature requires these facts to be presented to the jury for a determination of comparative negligence, in accordance with 767.04.
City of Boca Raton v. Basso,
43 Fla. L. Weekly D702a, April 4, 2018,
A plaintiff in a multi-count personal injury action who recovered money on at least one of the counts, but not all counts, was entitled to recover her costs pursuant to Florida Statute Section 57.041.
Plaintiff was arrested for driving under the influence. She subsequently filed a lawsuit against the City of Boca Raton, including two counts, false arrest and false imprisonment. At trial, a jury found that the City of Boca Raton had probable cause for initially arresting plaintiff, but it did not have probable cause for her continued restraint. Thus, plaintiff prevailed on her false imprisonment claim, but not on the false arrest claim. The jury awarded plaintiff $32,000.00 in damages. After the trial both parties filed motions for costs. The City of Boca Raton alleged it was entitled to costs because it prevailed on the false arrest claim, and plaintiff contended that she was entitled to costs because she was awarded $32,000.00 after prevailing on the false imprisonment claim.
The trial court ordered:
- Plaintiff was entitled to $2,494.83 (her costs incurred in her claim for false imprisonment),
- The City of Boca Raton was entitled to $8,611.87 (its costs incurred in defense of plaintiff’s false arrest claim), and
- A net cost final judgment be entered in favor of the City of Boca Raton, and against plaintiff in the amount of $6,117.04.
Section 57.041(1), Florida Statutes (2016), states in relevant part,
- The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment.
The statute expressly demands that the party recovering judgment be awarded costs, and this unambiguous language need not be construed. See Hendry Tractor Co. v. Fernandez, 432 So. 2d 1315, 1316 (Fla. 1983). On appeal, the Fourth District Court, relying on judicial authority from the Florida Supreme court as well as the Second and First District Courts of appeal, held that a plaintiff in a multicount personal injury action who recovers money judgment on at least one but not all counts in the cause of action, is the “party recovering judgment” for purposes of Section 57.041, and is therefore entitled to recover costs. The appellate court concluded that although the City of Boca Raton prevailed on one of the counts, plaintiff is entitled to all of her court costs because she recovered a $32,000.00 judgment against the City of Boca Raton based on the false imprisonment count.