Fenster v. Publix Supermarkets, Inc., 785 So. 2d 737, 739 (Fla. 4th DCA 2001) is an appeal after a customer filed a negligence lawsuit against Publix Supermarkets, Inc. She claimed that she suffered injuries when she tripped over a stock cart or “float” located near the refrigerated case from which she had selected eggs for purchase.
Florida’s Fourth District Court of Appeal (DCA) issued an opinion on May 30, 2001.
Florida’s 4th 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.
A Fort Lauderdale lawyer represented Fenster. A Fort Lauderdale attorney represented Publix. This was not my case. However, I have settled Florida supermarket slip and fall claims.
Although the Fenster case is older, it is still good law.
Tip: Since Publix’s claims adjuster may know about this case, you should also. Don’t give them the edge.
Florida courts have cited Fenster in many important cases, such as:
- Deleon v. Dollar Tree Stores, Inc., Fla: Dist. Court of Appeals, 4th Dist. 2012. (Learn more about slip, trip and fall claims against Dollar Tree Stores in Florida).
- Babalola v. Wal-Mart Stores East, LP, 2015 (Learn about trip and fall claims against Walmart stores in Florida).
Marilyn Fenster appeals an entry of final summary judgment (dismissal) granted in favor of Publix Supermarkets, in her negligence lawsuit against Publix. The appeals court ruled that there were disputed issues of fact, and they reversed and ordered a new trial. This was great for Fenster, and she wanted her case to get to trial.
Tip: Florida courts dismiss many trip and falls cases against Publix. The same is true for cases against Florida trip and fall cases against Walt Disney World, Target Stores, Winn Dixie, stores, hotels, motels, resorts, Costco and other business establishments.
In a Florida trip and fall case, half the battle is getting your case to a jury. If a judge doesn’t let your case get to a jury, you get nothing. If you a judge lets a jury decide your case, you may get compensation for your damages.
Fenster filed a negligence lawsuit action against Publix Supermarkets, Inc., for injuries sustained when she tripped over a stock cart or “float” located near the refrigerated case from which she had selected eggs for purchase.
In her lawsuit, Fenster claimed that Publix:
- negligently placed the “float” in her path
- allowed the “float” to remain in front of the refrigerated case in such a manner as to cause a dangerous condition
- failed to warn patrons of this dangerous condition
She also claimed that she was injured due to Publix’s negligence in failing to move the “float” out of her path.
In her deposition (sworn testimony), Fenster testified that she was shopping at Publix. In need of eggs, she approached the dairy case.
As she approached the case, she observed a stock clerk stocking eggs from a “float” or cart located next to the refrigerated case. The “float” was an open flat bed on wheels with a handle from which to push it.
She said that some eggs still remained on the cart. She stated that the cart was right in front of the egg display, flush against the case, and that the employee was standing to the left side of the cart unloading the eggs while talking to another employee.
Fenster approached the open end of the cart which still had eggs on it, opposite the back end where the handle was located. She asked the stock clerk unloading the eggs to move the cart so she could select eggs for purchase. The stock clerk started to move the cart, and she while facing the dairy case, side-stepped to her left into the space provided.
Fenster claimed the clerk only partially moved the cart, leaving her enough room to walk near the case. She then “assumed that he was going to continue to move it. I just went in and assumed that he would move it further.”
She did not wait until the clerk moved the cart all the way out, she just assumed he would do so. After moving in to select her eggs, she no longer continued to observe the clerk.
After selecting her eggs, she, without looking to her left, and rather than exiting the space in the same manner in which she had entered from her right, turned to her left and fell over the cart.
Publix claimed that there were no disputed issues of fact and that it had not breached either its duty to maintain the premises in a reasonably safe condition in that no dangerous condition existed or its duty to warn in that there were no concealed perils.
Publix Supermarket argued that the use of a “float” for stocking grocery items did not constitute a dangerous condition and that Fenster’s actions in turning the opposite direction and in not looking to see the location of the flat was a disregard for her own safety.
Publix argued that she knew the cart was behind her, and thus, since there was no hidden danger, there was no duty to warn.
In opposition to Publix’s motion for summary judgment (request for case dismissal), she claimed that unbeknownst to her, the stock clerk did not fully remove the “dangerous condition,” thereby causing her to fall and injure herself.
She claimed that issues of fact existed as to whether:
1) Publix was negligent in not giving her sufficient room to safely approach and walk away from the dairy case;
2) Fenster’s assumption that the clerk would fully pull the cart away was reasonable; and
3) She was negligent in making such an assumption and in failing to look to see if the cart was pulled away completely.
The appeals court agreed with her. Florida law says that summary judgments should be cautiously granted in negligence cases. The party asking the court to dismiss the case must show conclusively the absence of any genuine issues of material fact.
If the evidence raises any issues of material fact, if it is conflicting, if it will permit different inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by the jury. The trial court must interpret every possible inference in favor of the injured person.
As ruled by the same appeals court in Little v. Publix Supermarkets, Inc., 234 So.2d 132, 133-34 (Fla. 4th DCA 1970), “an inference is a permissible deduction from the evidence which the jury may reject or accord such probative value as it desires, and it is descriptive of the factual conclusion that a jury may draw from sufficient circumstantial evidence.”
It is well settled that a property owner owes two duties to an invitee, to use reasonable care in maintaining the premises in a reasonably safe condition and to give the invitee warning of concealed perils which are or should be known to the property owner, and which are unknown to the invitee and cannot be discovered by him through the exercise of due care. See Knight v. Waltman, 774 So.2d 731, 733 (Fla. 2d DCA 2000).
Publix still may be liable even if shopper knows of dangerous condition; Just raises issue of shopper’s fault
A customer’s knowledge of a dangerous condition does not negate Publix’s potential liability for negligently permitting the dangerous condition to exist; it simply raises the issue of comparative negligence and avoids summary judgment (dismissal). See Lynch v. Brown, 489 So.2d 65 (Fla. 1st DCA 1986); see also Knight v. Waltman, 774 So.2d 731 (Fla. 2d DCA 2000)(an invitee’s knowledge of a danger is not a complete bar to recovering compensation, but rather triggers the application of comparative negligence).
In Abes v. Publix Supermarkets, Inc., 610 So.2d 709 (Fla. 4th DCA 1992), the appeals court ruled that a summary judgment (dismissal) entered in favor of Publix and against the customer was improper.
The shopper was injured when she tripped over a large cardboard carton containing watermelons which had been placed on a wooden pallet and left in an aisle of the store. She testified that she was aware of the carton, but she testified that she wasn’t looking for the box, she was looking for potatoes when she tripped and fell.
The Abes Court concluded that under the facts of the case, there was a jury question raised as to whether Publix was negligent in its use of the wooden pallet. Thus, the trial court erred in granting Publix summary judgment (dismissal). See also Blankenship v. Roths, 634 So.2d 300 (Fla. 1st DCA 1994).
Abes presented a comparative negligence situation where the customer was aware of the carton in the aisle.
Like Abes, in this case, even though the customer was aware that the float existed, and that the pallet was moved so that she could approach the egg case, she assumed that Publix’s employee continued moving the pallet away from the egg section.
She explained that to her the assumption was reasonable since it would “make sense to move it pallet completely to the side so that a customer could get out and not have to walk sideways to get out.” Clearly, there remain questions of fact for the jury as to whether Publix breached its duty to maintain the premises in a reasonably safe condition and whether Fenster was comparatively negligent.
Because Publix has failed to meet its burden to prove conclusively the nonexistence of a genuine issue of material fact as to the existence of liability, the court reversed and ordered a trial.
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
- Slip and Fall on an Old Banana at Publix in Florida Claim
- Florida Court Dismissed Slip and Fall near Deli Counter at Florida Publix
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