Doty v. Dolgen Corp, LLC d/b/a Dollar General
5th DCA, 3/22/24
No. 5D22-2906, 2024 WL 1220889
Judge Jay
Topics: Directed Verdict; Premises Liability; Slip-And-Fall; Transitory Foreign Substance
Full Take: This is a slip-and-fall premises liability case by a customer against Dollar General, a store.
Dollar General displayed seasonal merchandise in two “U-boats”—carts shaped like hotel baggage carriers—outside the store's entrance. When it started raining, a Dollar General employee, Barbara Ralph, moved the U-boats indoors and placed a wet floor sign nearby. When the rain stopped, a different cashier, Robert Boarder, put the U-boats back outside and removed the wet floor sign.
Moments later, Kimberly Doty entered the store. She made it a few steps inside before she slipped and fell. She sued Dollar General for negligence, alleging that “a puddle of water near the main entrance” caused her to fall.
The case went to a jury trial. Boarder, the cashier who removed the wet floor sign and put the U-boats back outside, knew that there had been a “heavy downpour.” He knew Ms. Ralph put down a wet floor sign presumably because the floor was wet or could get wet from bringing the U-boats into the store.
At the close of Doty's case, Dollar General moved for a directed verdict, claiming there was no evidence that it knew about the water on the floor. The trial court denied the motion.
Ultimately, the jury found Dollar General liable for Doty's fall. Dollar General moved to set aside the verdict and enter judgment for Dollar General, again claiming there was no evidence showing that it knew about the water on the floor.
When seeking a directed verdict, the movant admits the truth of all evidentiary facts, as well as every reasonable conclusion or inference favorable to the opposing party from those facts. A directed verdict is proper only when the evidence, viewed in the light most favorable to the non-moving party, shows that a jury could not reasonably differ about the existence of a material fact and the movant is entitled to judgment as a matter of law. If there are conflicts in the evidence or if different reasonable inferences could be drawn from the evidence, then the issue is a factual one that should be submitted to the jury and not be decided by the trial court as a matter of law.
In a slip-and-fall case involving a transitory substance in a business, the plaintiff must get past section 768.0755, Florida Statutes. That statute requires the plaintiff to “prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.” A business owner has ‘actual knowledge’ of a dangerous condition when the owner or one of its agents ‘knows of or creates the dangerous condition.’” Eddings v. Target Corp., No. 8:22-cv-02060, 2024 WL 414529, at *4 (M.D. Fla. Feb. 5, 2024) (quotingBarbour v. Brinker Fla., Inc., 801 So. 2d 953, 957 (Fla. 5th DCA 2001)). “Although the statute codifying the actual ... knowledge requirement was enacted in 2010, Florida's courts have long recognized the requirement at common law.” Sutton v. Wal-Mart Stores E., LP, 64 F.4th 1166, 1169 n.1 (11th Cir. 2023); see also Eddings, 2024 WL 414529, at *4 (noting that as to the transitory foreign substance statute, “state court decisions prior to 2002 or after 2010 are informative”).
In Barbour, the Fifth DCA held that directed verdict was not proper where the plaintiff slipped on a roll of toilet paper with the roller mechanism inside the cardboard core lying on the floor of a restaurant's bathroom. No directevidence was introduced that showed that the defendant restaurant had actual knowledge of the toilet paper roll and roller mechanism being on the restroom floor, but the toilet paper dispensers were under the exclusive control of the restaurant, a key was needed to unlock the dispenser, and the plaintiff stated that she found the dispenser open immediately after her fall. Cleaning staff and servers were responsible for filling the dispensers. The jury could have reasonably concluded that the restaurant had actual knowledge of the dangerous condition, so a directed verdict for the defendant restaurant was improper. Id. at 959–60.
Here, a Dollar General employee placed a wet floor sign near the U-boats after she brought them inside “[p]resumably because [the floor] was wet.” The U-boats were “most likely” wet when they entered the store. After the U-boats were taken back outside by Mr. Boarder, he moved the wet floor sign to the side. The acting store manager authored an incident report in which she attributed Doty's fall to wet U-boats and no wet floor sign. Dollar General's corporate representative testified that Doty's accident occurred because product was brought in “from outside during a rain” and because it left “water behind through the transition.” This evidence, when viewed in a light most favorable to Doty, easily created a jury question about whether Dollar General had actual notice of the dangerous condition that caused Doty's fall. Dollar General's claim that it was entitled to a directed verdict “falls far short.” AFFIRMED.
