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The burden of slippery matters gets a slight shift
© St. Petersburg Times, On March 4, 1995, a woman named Evelyn Owens clocked out of her job in the bakery of a Publix supermarket in Osceola County, and decided to do a little grocery shopping. As Owens proceeded down the bread and potato chip aisle, she stepped on a small piece of banana. Another shopper later testified that the offending substance on the floor was "kind of mushed . . . kind of squashed down." Owens sued. She lost in trial court. The judge didn't even let the jury hear the case. Owens had failed to show evidence that Publix knew, or reasonably should have known, the banana was on the floor. The mere fact the banana was "discolored" was not enough proof it had been lying around long. The state's 5th District Court of Appeal in Daytona Beach wrestled with the case. The main precedent was a case from 1973, which involved collard greens. In that collard green case, there was other evidence. The customers had been alone in the store for 15 minutes or more, and no employee had been around to sweep. The collard leaf in question was not only wilted but "dirty looking." Enough to let a jury hear. But in Owens' case, the appeals court ruled, the only thing she had going for her was that the banana was discolored. That was not enough to take to a jury. Maybe the banana got brown up on the shelf and had just recently fallen, the court said. Maybe a kid just dropped it. Who knows? Owens' loss echoed around the state. The case of Owens v. Publix Super Markets Inc. was cited by the 4th District over in West Palm Beach, to rule against Elvia Soriano, a housewife who needed knee replacement surgery after slipping on a banana in a U-Save in 1992. Soriano's banana had been "brown with very little yellow in color." Yet the matter was not settled. The Owens and Soriano rulings seemed to be in conflict with a 1998 ruling involving frozen peas, from the 3rd District Court of Appeal in Miami. The frozen pea case was Teate v. Winn Dixie Stores Inc.. There was a puddle of water all around the package of peas. Had the peas been on the floor long enough to melt? Or was the water from the frost knocked off the outside of the package, which could have melted almost at once? The decision was, this is enough of a dispute to let a jury decide. Last month, on Nov. 15, the Florida Supreme Court brought all these conflicting cases together and settled everything. Maybe you saw it in the paper. Justice Barbara Pariente expertly steered her opinion through the slippery field. How much evidence, she asked, is enough to give a fallen-produce case to a jury, so the jury can decide whether the store knew or should have known of its presence? Pariente cited a 1982 case involving melted and "dirty" ice cream. A 1984 case involved "old, nasty" collard greens. In 1989, rice and dried beans, not on the floor long enough to get crushed. In 1993, the issue was sauerkraut that was "gunky, wet and black." In 1998, the issue was partly melted butter, yet with some unmelted lumps in it. Other states, Pariente wrote, have begun to move away from the ancient doctrine that a customer must prove a grocer knew, or should have known, about produce on the floor. This is an unfair burden -- once a customer proves a fall occurred, it should be up to the grocer to prove he had taken "reasonable" steps to keep the store safe. From now on, this will be the new rule for Florida. But even under the old rules, Owens and Soriano had a legitimate jury case, Pariente wrote: "The aging condition of the banana in each case gave rise to a reasonable inference that the aging occurred on the floor." So the Supreme Court unanimously reversed the rulings. New trials will be held. And so justice is served. This ruling does not mean open season on grocers; all they have to show is that they were "reasonable." But customers are spared the unfair (and sometimes impossible) burden of proving what a grocer knew, or should have known. Thus the march of the law toward perfection continues. For this, lettuce be grateful. -- You can reach Howard Troxler at (727) 893-8505 or at troxler@sptimes.com.
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Times columns today Howard Troxler Gary Shelton From the Times Metro desk |
