In Publix Super Markets, Inc. v. Schmidt, 509 So. 2d 977 (Fla. 4th DCA 1987), Dorothy M. Schmidt and Walter C. Schmidt, her Husband sued Publix.
Before I get to the facts of the Schmidt case, I want to say that a 2015 Florida case, Garcia v. Wal-Mart Stores East, LP, Dist. Court, MD 2015 (in Orlando) cited the Schmidt case. (Learn about slip and fall injury claims against Florida Walmart stores.)
Even though this is an older case, it is still good law. Therefore, it applies to current slip and fall cases against Publix and other supermarkets.
Facts of Schmidt Case
In Schmidt, Dorothy was injured when she slipped and fell while shopping. Florida’s 4th District Court of Appeal handles appeals for these counties: Palm Beach, Broward, St. Lucie, Martin, Indian River, and Okeechobee Counties.
I assume that this slip and fall happened in one of these counties. The trial was prior to 1987.
My thoughts: Publix took this case to trial. If a settlement cannot be reached, they still will take a case to trial.
The accident occurred near the deli counter at the Publix’s store. The customer did not know what caused her to slip.
She testified she saw nothing, but she thought she had slipped on grease because of the way she fell. While at the hospital, the plaintiff noticed a greasy stain on her skirt.
Tip: Always preserve your clothes after a slip and fall. Put them in a sealed plastic bag. Then place them in a cardboard box. Do not wash them. Your clothes may be an important part of your case.
The other witnesses, including her husband, had seen nothing on the floor.
My thoughts: The fact that her husband did not see anything on the floor hurt her case. I assume that he looked at the floor after the slip and fall. It may have helped her case if her husband would have seen something on the floor after her fall. It would have helped if the substance had characteristics of aging, such as looking old, dirty, etc.
There was, however, testimony that a Publix employee later cleaned the area where the customer fell.
My thoughts: Though the Publix employee cleaned the area, I have no idea what he cleaned up. This hurt her chances of getting to her case to a jury.
A former employee testified that, on a few other occasions, he had seen some drops or spots on the floor in that area which he believed were caused by the overfilling of gravy on an employee’s food tray.
My thoughts: It may have helped her case if the employee said that on many occasions, he had seen drops or spots on the floor in that area which he believed were caused by the overfilling of gravy on an employee’s food tray.
However, there was no evidence of any recent spill.
In Publix Super Markets, Inc. v. Schmidt, 509 So. 2d 977 (Fla. 4th DCA 1987), the appeals court said that the evidence, taken in the light most favorable to the customer, was not enough to support a verdict in her favor.
The court held that a directed verdict should have been entered for Publix. This means that the trial court should have ruled in Publix’s favor, and dismissed the case.
The customer admitted that there was no proof of either actual or constructive notice. It was the customer’s burden to prove either direct negligence by Publix employees or notice of the condition causing the injury. Gaidymowicz v. Winn-Dixie Stores, Inc., 371 So.2d 212 (Fla. 3d DCA 1979). (Learn about slip and fall injury claims against Florida Winn Dixie stores).
The appeals court said that the customer failed to show how the condition, if any, was created, who caused it, how long it existed, or that the store was responsible. The testimony that the condition could have been gravy caused by overfilling a tray of food for an employee was merely speculative.
Regardless of whether the jury could conclude that plaintiff slipped on a greasy substance, there was no proof that Publix or its employees were at fault, or that the substance was on the floor for a sufficient length of time to put defendant on notice. Evens v. Eastern Airlines, Inc., 468 So.2d 1111 (Fla. 1st DCA 1985) (Learn about Florida slip and fall injury claims against airlines); Gaidymowicz, 371 So.2d at 212; McDaniel v. Great Atlantic & Pacific Tea Company, 327 So.2d 893 (Fla. 3d DCA 1976); Friedman v. Biscayne Restaurant, Inc., 254 So.2d 831 (Fla. 3d DCA 1971). (Learn about slip and fall injury claims against Florida restaurants).
The appeals court said that since there was no proof of actual nor constructive notice, the customer’s claim rests on an inference that Publix employees were negligent.
The jury would have had to build inferences on top of inferences to conclude that a dinner tray had been overfilled at the delicatessen, that drops of gravy spilled when the tray was raised over the counter to a Publix employee, and that this caused plaintiff to slip.
The appeals court cited the case of Nielsen v. City of Sarasota, 117 So.2d 731 (Fla. 1960), the supreme court summarized:
“In a civil case, a fact may be established by circumstantial evidence as effectively and as conclusively as it may be proved by direct positive evidence.
The limitation on the rule simply is that if a party to a civil lawsuit depends upon the inferences to be drawn from circumstantial evidence as proof of one fact, it 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.” Nielsen, 117 So.2d at 733. See also Gaidymowicz.
The jury verdict was reversed. This means that the appeals court determined that Publix won this case. The customer received nothing.
The Schmidt court held that there was “no proof that Publix or its employees were at fault, or that the substance was on the floor for a sufficient length of time to put a defendant on notice.” Because of this lack of proof, the jury’s verdict impermissibly relied on “inferences on top of inferences” to explain the fall.
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