Torts
— Premises liability — Slip and fall on patch of laundry detergent that had
issued from the top of a bottle that had fallen from a shelf in defendant
supermarket — Use of ordinary care to maintain premises in reasonably safe
condition — Trial court erred in denying defendant’s motion for judgment in
accordance with motion for directed verdict where assistant manager ran to the
spot of the spill and righted the bottle nine seconds after the bottle fell,
and plaintiff slipped on the detergent four seconds later when the assistant
manager’s back was turned, so that liquid had been on floor only thirteen
seconds when plaintiff slipped and fell

CARIDAD MIYIRIAM DOMINGUEZ, Appellant/Cross-Appellee, vs.
PUBLIX SUPER MARKETS, INC., Appellee/Cross-Appellant. 3rd District. Case No.
3D14-2212. L.T. Case No. 08-46176. Opinion filed March 2, 2016. An Appeal from
the Circuit Court for Miami-Dade County, Peter R. Lopez, Judge. Counsel: Bolton
& Gross and Richard A. Bolton, for appellant/cross-appellee. Weiss Serota
Helfman Cole & Bierman, P.L., and Edward G. Guedes, for
appellee/cross-appellant.

(Before SHEPHERD, LAGOA and SCALES, JJ.)

(SHEPHERD, Judge.) This is an appeal by Caridad Miyiriam
Dominguez, the plaintiff below, from an award of attorneys’ fees to Publix
Super Markets, Inc., pursuant to a proposal of settlement in a slip and fall
case. Publix Super Markets, Inc., cross appeals the trial court’s denial of its
motion for judgment in accordance with its motion for directed verdict. We
affirm the award of attorneys’ fees to Publix Super Markets on the proposal for
settlement without the need for discussion. We reverse the order denying Publix
Super Markets’ Motion for Judgment in Accordance with Motion for Directed
Verdict, with directions to the trial court to enter judgment for Publix.

The dispositive facts of this case were recorded on the
store’s surveillance video camera. Caridad Dominguez slipped and fell on a
patch of laundry detergent that had issued from the top of a bottle that had
just fallen from a Publix Super Markets store shelf. The video recording of the
aisle shows that in the eight minutes preceding the incident, several customers
traveled through the aisle, including one who stopped in front of where the
bottle was located, reached up to a shelf, and then walked out of the aisle. At
the time the bottle fell, Publix assistant grocery manager, Keith Nation, was
examining shelves at the opposite end of the aisle.1 Upon hearing the crash, Nation ran to
the spot of the spill. The video shows Nation straddling the spill and bending
over to right the bottle nine seconds after the bottle fell. Four seconds
later, Ms. Dominguez rounds into the aisle and slips on the detergent. Nation’s
back is to Dominguez as she turns into the aisle. As evidenced by the video
camera, the entire incident, from the time Nation heard the bottle fall to the
time Dominguez slipped, consumed thirteen seconds.

“A directed verdict is proper only when the record
conclusively shows an absence of facts or inferences from facts to support a
jury verdict, viewing the evidence in a light most favorable to the nonmoving
party.” Sears, Roebuck & Co. v. McKenzie, 502 So. 2d 940, 941 (Fla.
3d DCA 1987) (citations omitted).

A
property owner owes two duties to its business invitees: 1) to warn of
concealed dangers which are or should be known to the owner and which are
unknown to the invitee and cannot be discovered through the exercise of due
care; and 2) to use ordinary care to maintain its premises in a reasonably safe
condition.

Rocamonde v. Marshalls of Ma, Inc.,
56 So. 3d 863, 865 (Fla. 3d DCA 2011) (citing Westchester Exxon v. Valdes,
524 So. 2d 452, 455 (Fla. 3d DCA 1988)).

The issue in this case is not whether Publix failed to warn
Dominguez of the substance on the store floor. The detergent patch was an open
and obvious condition. See Early v. Morrison Cafeteria Co. of Orlando,
61 So. 2d 477, 478 (Fla. 1952) (noting a store proprietor “has a right to
assume that the invitee will perceive that which would be obvious to him upon
the ordinary use of his own senses”) (citation omitted). Rather, the issue is
whether the store owner in this case used ordinary care to maintain its
premises in a reasonably safe condition.

In transitory foreign substance cases, courts look to the
length of time the condition existed before the accident occurred. See Gaidymowicz
v. Winn-Dixie Stores, Inc., 371 So. 2d 212, 214 (Fla. 3d DCA 1979). In Gaidymowicz,
Mary Gaidymowicz also slipped and fell on some liquid detergent in the aisle of
a grocery store. Harold Sobel, who had accompanied her to the store, testified
that upon noticing the substance, he immediately notified the store manager and
then returned to the aisle where he found his mother on the floor. Id. at
213. Sobel further testified it took him just over a minute to walk over to the
manager to inform him of the liquid and return to the aisle. Id. The
store manager testified that no more than five minutes prior thereto he had
walked down the same aisle and found nothing on the floor. Id. He also
testified that as soon as Sobel told him of the substance, he ordered an
employee to clean it up. Id. at 214. By that time, it was too late.
Based on these facts, “[w]e conclude[d] that with only one minute actual
notice, Winn-Dixie did not have sufficient opportunity to correct the dangerous
condition and, therefore, could not be liable on the basis of actual notice.” Id.
We further held that “Mrs. Gaidymowicz failed to present sufficient evidence as
to the length of time the liquid was on the floor for Winn-Dixie to be charged
with constructive knowledge of the condition and a reasonable time in which to
correct it.” Id.

Publix Supermarkets, Inc. v. Heiser,
156 So. 2d 540 (Fla. 2d DCA 1963) is also instructive. In Heiser, the
plaintiff slipped and fell on a broken jar of mayonnaise. A Publix Super
Markets’ stock man in the next aisle heard the mayonnaise jar fall and
immediately made his way to the site of the broken jar, where he found Mrs.
Heiser already on the ground. As to the time it took him to get to the site of
the incident, the stock man testified: “I would say a matter of seconds.
Probably a minute. Probably a minute and a half. Depends. The store was crowded
and the trouble — main trouble was you couldn’t get through right away.” Heiser,
156 So. 2d at 541. Relying upon Waters v. Winn-Dixie Stores, Inc., 146
So. 2d 577 (Fla. 2d DCA 1962), where the slip and fall occurred about four to
five seconds after a jar of baby food fell and broke on a floor near a checkout
counter, the Second District Court of Appeal in Heiser held that,
viewing the evidence in the light most favorable to plaintiffs, it could not be
said the Publix grocery store was “negligent [on] any theory.” Id. at
542. We likewise conclude, viewing the evidence in the light most favorable to
the plaintiff, that Publix Super Markets was not negligent and cannot be held
liable.

Nor does the fact that Publix Super Markets’ internal
operating procedures called for Nation to immediately block off the aisle where
the detergent issued change the result in this case. The evidence relating to
Publix’s procedures about blocking the aisle was certainly admissible and
relevant to the jury’s consideration of Nation’s conduct after the spill. See
Mayo v. Publix Super Markets, Inc., 686 So. 2d 801, 802 (Fla. 4th DCA
1997); Gunlock v. Gill Hotels, Inc., 622 So. 2d 163, 164 (Fla. 4th DCA
1993). However, internal safety policies do not themselves establish the
standard of care owed to the plaintiff. Mayo, 686 So. 2d at 802; Gunlock,
622 So. 2d at 164. If what Nation did, under the circumstances and within the
five seconds he was allotted by fate, was reasonable and demonstrated ordinary
care, then the fact he allegedly did not abide by Publix’s internal operating
procedure of blocking off the aisle does not create a heightened duty of care
in favor of Dominguez.

Affirmed in part, and reversed in part with directions.

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1The aisle is seventy-two feet long
and approximately seven feet wide.

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