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Tuesday, September 24, 2019

Appeals court says Winn-Dixie not liable for customer's injury

By Richard Jones | Apr 12, 2017

TALLAHASSEE — The Florida 1st District Court of Appeal has affirmed a lower court judgment in a premises liability case involving the Winn-Dixie grocery chain.

In Thomas Brookie v. Winn-Dixie Stores Inc. and The Lewis Bear Co., Judge Bradford L. Thomas, writing for the majority, found that the summary judgment issued by a lower court was a proper application of the law. 

The ruling was in response to a lawsuit in which a customer claims to have fallen over an empty pallet. The judge found that the store had not breached its duty to exercise care to maintain the premises in a reasonably safe condition.

According to the complaint, he went to Winn-Dixie to make a purchase and get empty boxes. In the course of making his purchase, he made a total of four trips into and out of the store. The last three trips into the store were to get boxes for storage.

During this same time, a Winn-Dixie supplier, Lewis Bear, was delivering a shipment of beer. The beer was stacked 5 feet high on a pallet, next to an empty pallet. The customer said he saw the empty pallet but still tripped and fell over it. He then sued, claiming Winn-Dixie and its supplier failed to warn of a dangerous condition and had failed to make the sidewalk safe to cross.  

The customer’s lawyer presented an expert who testified that the defendant had created an unsafe condition. The customer further testified that he didn't see the empty pallet until his third trip inside the store and that he actually tripped over the prongs from the tow motor sticking under the pallet.

In response, Winn-Dixie denied negligence and filed a motion for summary judgment.

The court, in granting the summary judgment, said the defendants had no duty to warn the customer because he was already aware of the conditions. The court said the condition was “so open and obvious … that it (was) inherently not dangerous.”

On appeal, Thomas said the customer admitted that he saw the pallet, and the store's surveillance video also supported this claim. Since there was no question the customer was aware of the pallet, Thomas said there was no issue of fact that the condition was “open and obvious.” 

Thomas then cited Hunt v. Slippery Dip of Jacksonville Inc., holding that because the customer knowledge of the conditions was  ”superior” to that of the store, the store had no duty to warn the customer of the obvious condition.

Thomas also said that Winn-Dixie did not cause an unsafe condition by having the pallet in a position that it normally is in during the course of doing business and that Winn-Dixie could not reasonably have anticipated that a customer would trip over a pallet that he had previously observed and walked around twice prior to the accident.  

Thomas, with Judge Timothy D. Osterhaus concurring, affirmed the decision of the circuit court and ruled in favor of Winn-Dixie.

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Florida First District Court of Appeal