Last Update: 6/12/18
According to Florida case law as of the date of this article, a business owner owes a business invitee the duty to use reasonable care in maintaining the premises in a reasonably safe condition.
In Moultrie, Patricia Moultrie and her two boys went to their local Big Lots store to see about buying a vacuum cleaner. The store had several to choose from, and Mrs. Moultrie asked her son to take one of the vacuum cleaners down from the display shelves on the back wall of the store. As her son reached for the vacuum cleaner, Mrs. Moultrie stepped back so he could have room to pull the product down from the display and place it on the floor.
As she did so, she tripped over an empty wooden pallet which had been left in the aisle. The pallet was approximately six inches high, and Mrs. Moultrie acknowledged in her testimony that if she had looked to the right and left sides of the floor as she walked the aisle she would have seen the pallet.
Notwithstanding the pallet was in plain view, Mrs. Moultrie stated she did not know the pallet was there. Her testimony was that she assumed that the store aisles would be clear of any obstructions and that in her ordinary course of shopping she did not examine store aisles for obstructions.
Was The Pallet In The Store Aisle An “Open and Obvious” Danger?
Patricia Moultrie sued Big Lots for her damages. Big Lots argued it was not liable because the pallet was “open and obvious” and it had no duty to warn her about it.
The appellate court found that the evidence showed that Big Lots created a “foreseeable zone of risk” when it left that empty wooden pallet in the store aisle.
It was not that high – only six inches – and its height was such that business invitees might not see it. The pallet would not fall within the line of vision of adult invitees.
Furthermore, evidence showed that the the pallet was in a main aisle and placed to the left side. It was not in the center of the store aisle. These circumstances mean that reasonable persons could differ as to whether the wooden pallet was “open and obvious.”
In its defense, Big Lots cited cases that involved “open and obvious” conditions like uneven pavement and traffic bumps. These are things that are a matter of common knowledge in everyday life. Pallets left in store aisles are not.
QUICK FACT: A victim of a business owner’s negligence has 4 years from the date of the incident, to file a personal injury lawsuit. However, if a death resulted from the incident, the deadline to file a lawsuit is 2 years.
Customary Practices, Warnings
Big Lots did not have any evidence that leaving empty pallets in its store aisles was a customary or common practice for its business operations. Nor did Big Lots provide any evidence that it had put any kind of pennant or other warning device to alert customers or store employees of the pallet being there, to prevent someone falling.
Big Lots did not prove the pallet was so open, obvious, and ordinary that it could be held as a matter of law that it was not liable. Furthermore, Big Lots provided no evidence to refute the general rule suggested by the plaintiff that adult shoppers do not focus on the floor of a store aisle when moving toward merchandise they propose to buy.
Related: Slip/Trip and Falls in Florida
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