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Florida Third DCA reverses trial court's summary judgment for defendant in premises liability case alleging both dangerous condition and negligent mode of operation

On June 27, 2018, in Khorran v, Harbor Freight Tools, No. 3D17-1508, the Florida Third DCA reversed the trial court’s summary judgment against the plaintiff in a premises liability case, concluding that both counts of the plaintiff’s complaint involved issues requiring jury resolution.

The plaintiff was shopping in the defendant’s store in an aisle in which stores employees were stacking shelves behind him when, according to the plaintiff’s deposition, he was struck by a large metal object which he saw in his peripheral vision as it was falling. He claimed he was subsequently shown a metal trailer hitch by a store employee and told that this as the object that struck him. He further claimed that immediately after the incident he saw trailer hitches stored on the top shelf at least eight or nine feet off the ground.

The plaintiff’s complaint included both a count alleging negligence, premised upon there being a dangerous condition at the store and requiring proof that the store knew or should have known of the dangerous condition, and a count alleging negligent mode of operation, premised on the defendant’s alleged conduct in creating the dangerous condition and not requiring the proof of knowledge inherent in the negligence claim. The trial court granted the defendant store’s summary judgment motion as to both counts.

The Third DCA concluded that reasonable inferences could be made that the trailer hitch that hit the plaintiff was dangerously stacked on the top shelf behind where the plaintiff was standing, that the store employees who were stocking the shelves somehow caused the trailer hitch to fall, and that a store employee either created the dangerous condition by placing the hitches there or should have known of the condition because it had existed for a sufficient period of time.

Regarding the negligent mode of operation claim, the Third DCA quoted the Florida Supreme Court decision in Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256, 260 (Fla. 2002) for the principle that a claim for negligent mode of operation “recognizes the common-sense proposition of negligence law that the duty of care required under the circumstances may consist of taking reasonable precautions so as to minimize or eliminate the likelihood of a dangerous condition arising in the first instance.” The Markowitz Court provided a list of instructive precedents showing how a jury issue regarding a negligent mode of operation may arise. See Wal–Mart Stores, Inc. v. Rogers, 714 So. 2d 577, 578 (Fla. 1st DCA 1998) (whether store was negligent in manner in which it hung radios from hook so as to create a dangerous condition was jury question); Ochlockonee Banks Rest., Inc. v. Colvin, 700 So. 2d 1229, 1230 (Fla. 1st DCA 1997) (where jury could have determined that the defendant’s negligence consisted of allowing a dangerous condition to exist by allowing people to place their drinks on the railing immediately adjacent to the dance floor); Klaue v. Galencare, Inc., 696 So. 2d 933, 935 (Fla. 2d DCA 1997) (“[w]hether a business entity was negligent in stacking items on a shelf at a particular height, in a particular manner, and at a particular location thus causing a dangerous condition to exist is a jury question.”); Harrell v. Beall’s Dep’t Store, Inc., 614 So. 2d 1142, 1143 (Fla. 2d DCA 1993) (whether a department store created a dangerous condition by the manner in which it mounted a display rack is a jury question). The Third DCA particularly relied on both Klaue v. Galencare, Inc. and Valdes v. Faby Enters., Inc., 483 So. 2d 65, 65 (Fla. 3d DCA 1986) (“[w]hether Faby was negligent in stacking the cases of beer at the height and in the manner and location in which it did was a question for the jury”)because in both cases the same issue existed regarding whether items were stacked negligently.