Business Law 11th Edition by Kenneth Clarkson,Roger LeRoy Miller,Gaylord Jentz,Frank Cross

Exercise 9

Izquierdo v. Gyroscope, Inc.
District Court of Appeal of Florida, Fourth District, 2007. 946 So.2d 115.
• Background and Facts Giorgio's Grill in Hollywood, Florida, is a restaurant that becomes a nightclub after hours. At those times, traditionally, as Giorgio's manager knew, the wait staff and customers threw paper napkins into the air as the music played. The napkins landed on the floor, but no one picked them up. If they became too deep, customers pushed them to the side. Because drinks were occasionally spilled, sometimes the napkins were wet. One night, Jane Izquierdo went to Giorgio's to meet a friend. She had been to the club five or six times and knew of the napkin-throwing tradition. She had one drink and went to the restroom. On her return, she slipped and fell, breaking her leg. After surgery, she relied on a wheelchair for three months and continued to suffer pain. She filed a suit in a Florida state court against Gyroscope, Inc., the owner of Giorgio's, alleging negligence. A jury returned a verdict in favor of the defendant, and Izquierdo filed a motion for a new trial, which the court denied. She appealed to a state intermediate appellate court.
WARNER, J. [Judge]
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We conclude that the trial court abused its discretion in denying the motion for new trial as the verdict finding no negligence on the part of the defendant is contrary to the undisputed evidence in the case. The testimony regarding negligence from both Izquierdo and her fiancé was not conflicting nor was it impeached [contradicted]. More importantly, the manager of the restaurant admitted that permitting the wet napkins to remain on the floor was a hazardous condition. Although the defendant argued * * * that Izquierdo did not know how she fell, the circumstantial evidence included her testimony that she slipped, went down on a wet floor, and found napkins on her shoes. The inference that the wet napkins on the floor caused her fall clearly was the only reasonable inference which could be drawn from the facts presented. The defendant offered no contrary interpretation consistent with the facts proved.
We are further persuaded that the evidence of the defendant's negligence was clear and obvious by a reading of [Florida Statutes Section] 768.0710(1), which provides:
The person or entity in possession or control of business premises owes a duty of reasonable care to maintain the premises in a reasonably safe condition for the safety of business invitees on the premises, which includes reasonable efforts to keep the premises free from transitory foreign objects or substances that might foreseeably give rise to loss, injury, or damage.
* * * [T]he existence of a foreign substance on the floor of business premises that causes a customer to fall and be injured is not a safe condition * * *. [A] business owner owes a duty to its invitees to make reasonable efforts to keep transitory foreign substances off the floor, which would include napkins. Failure to do so would be negligence. [Emphasis added.]
Further, although Giorgio's claimed that the napkin-throwing was known by Izquierdo and the existence of napkins on the floor was obvious, this would merely discharge the landowner's duty to warn. It does not discharge the landowner's duty to maintain the premises in a reasonably safe condition.* * *
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* * * [T]he record in the present case shows at least some negligence on the part of the defendant, even though a jury could find that Izquierdo was negligent herself. The jury's verdict finding no negligence on the defendant's part is contrary to the manifest [obvious] weight of the evidence, and the trial court abused its discretion in denying the motion for a new trial.
• Decision and Remedy The state intermediate appellate court reversed the lower court's decision, concluding that "the trial court abused its discretion" in denying Izquierdo's motion. The appellate court remanded the case for a new trial.
• What If the Facts Were Different Should the result in this case have been different if, in all the years that the napkin-throwing tradition existed, no one had ever fallen on the napkins before Izquierdo Why or why not
• The Legal Environment Dimension Does a plaintiff's knowledge of a dangerous condition erase a defendant's potential liability for negligently permitting the dangerous condition to exist Explain.