NORTH LAUDERDALE SUPERMARKET, INC. d/b/a SEDANO'S SUPERMARKET 35 v. LUZ PUENTES and JAIRO GARCIA ( 2021 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
NORTH LAUDERDALE SUPERMARKET, INC. d/b/a
SEDANO’S SUPERMARKET #35,
Appellant/Cross-Appellee,
v.
LUZ PUENTES and JAIRO GARCIA,
Appellees/Cross-Appellants.
No. 4D20-1346
[December 22, 2021]
Appeal and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County, William W. Haury, Jr., Judge; L.T. Case
No. CACE17015946.
Edward G. Guedes of Weiss Serota Helfman Cole & Bierman, P.L., Coral
Gables, for appellant/cross-appellee.
Jordan M. Kirby of Rubenstein Law, P.A., Plantation, and Adam
Richardson of Burlington & Rockenbach, P.A., West Palm Beach, for
appellees/cross-appellants.
FORST, J.
In this slip-and-fall case, appellant North Lauderdale Supermarket, Inc.
d/b/a Sedano’s Supermarket #35 (“Defendant”) appeals the trial court’s
amended final judgment, raising two issues on appeal. Appellees Luz
Puentes and Jairo Garcia (collectively “Plaintiffs”) raise one issue on cross-
appeal. We agree with Defendant that the trial court erred in providing
Florida Standard Jury Instruction (Civil) 401.20(a) without any
modification or revision reflecting current “slip and fall” liability law. We
therefore reverse and remand for a new trial. We affirm as to the remaining
issues without discussion.
Background
On June 19, 2015, Puentes slipped and fell on a purportedly oily
substance on the floor of Defendant’s business establishment. Both
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Puentes and her husband Garcia filed suit against Defendant, raising
negligence and loss of consortium claims, respectively.
The trial lasted four days. During the first two days, there were several
instances when Defendant informed the trial court that the parties
disagreed regarding one of the proposed jury instructions. Defendant,
though, did not state its objection, nor did it discuss the issue any further.
However, during the charge conference on the third day of trial,
Defendant objected to the non-modified use of standard jury instruction
401.20(a) (“Issues on Plaintiff’s Claim — Premises Liability”). That
instruction stated as follows:
The issues on Plaintiff’s claim, for you to decide are:
Whether Defendant, Sedano’s Supermarket #35, negligently
failed to maintain the premises in a reasonably safe condition,
or negligently failed to correct a dangerous condition about
which the Defendant either knew or should have known, by
the use of reasonable care, or negligently failed to warn
Plaintiff of the dangerous condition about which the
Defendant had, or should have had, knowledge greater than
that of Plaintiff; and, if so, whether such negligence was a legal
cause of loss, injury, or damage to Plaintiff.
Defendant argued that because the negligent maintenance language
was written in the disjunctive, the jury would be able to find Defendant
liable on the theory of negligent maintenance without being required to
make a finding Defendant had actual or constructive notice of the oily
substance on the floor. Defendant contended that, to be consistent with
section 768.0755, Florida Statutes (2014) (discussed below), the negligent
maintenance language needed to be removed or revised before the
instruction could be given to the jury. Defendant proposed that, to be
consistent with the statute, the instruction be modified to focus, in
pertinent part, on “[w]hether the defendant negligently failed to correct a
dangerous condition about [which] the defendant knew or should have
known by the use of reasonable care[,] or failed to warn the . . . claimant
of a dangerous condition about which (defendant) ha[d] or should have
had greater knowledge tha[n] that of the plaintiff . . . .”
Plaintiffs did not agree with the proposed modification and the trial
court overruled Defendant’s objection to the use of the standard jury
instruction. In the absence of relevant case law, the court was “not
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inclined to deviate from a standard instruction.” The trial court offered to
include a special interrogatory with the verdict form, but Defendant
declined this offer.
Ultimately, the trial court read jury instruction 401.20(a) as written,
adding “[this] is the law you must follow in deciding this case” as part of
its concluding instruction. The jury returned a verdict awarding the
injured Plaintiff $502,000 and her spouse $10,000, finding Defendant
negligent and liable. Defendant filed motions to set aside the verdict and
enter judgment in its favor or, alternatively, to grant a new trial. The latter
motion was based on the argument that the trial court—over defense
objection—had given an outdated jury instruction. 1 The trial court denied
both motions and the instant appeal followed.
Analysis
“A trial court’s decision to give or refuse to give a proposed jury
instruction is reviewed for an abuse of discretion.” Philip Morris USA, Inc.
v. McCall, 234 So. 3d 4, 14 (Fla. 4th DCA 2017). “A trial court abuses its
discretion when it gives an instruction that is ‘reasonably calculated to
confuse or mislead’ the jury.” Id. (quoting Goldschmidt v. Holman, 571 So.
2d 422, 425 (Fla. 1990)). Moreover, “a trial court abuses its discretion
when it fails to give a proposed instruction that is (1) an accurate
statement of the law, (2) supported by the facts of the case, and (3)
necessary for the jury to properly resolve the issues.” Id. (quoting R.J.
Reynolds Tobacco Co. v. Jewett, 106 So. 3d 465, 467 (Fla. 1st DCA 2013)).
A. The challenge to the jury instruction was not waived and was
preserved for appellate review
Plaintiffs argue that Defendant waived its argument on appeal because:
(1) Defendant entered into a joint pretrial stipulation, stipulating to
negligent maintenance being a triable issue, and (2) Defendant, through
1 The Florida Supreme Court “authoriz[ed] the publication and use of the
standard civil jury instructions,” including instruction 401.20 Issues on
Plaintiff’s Claim — Premises Liability, on March 4, 2010. In re Standard Jury
Instructions In Civil Cases-Report No. 09-01 (Reorganization of the Civil Jury
Instructions), 35 So. 3d 666, 697 (Fla. 2010). Almost immediately thereafter, the
Legislature enacted section 768.0755, Florida Statutes, with an effective date of
July 1, 2010, the same effective date of the repeal of section 768.0710, Florida
Statutes. See Ch. 2010-8, §§ 1–2, Laws of Fla.
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its conduct leading up to the charge conference, impliedly consented to
negligent maintenance being a triable issue. We find both of Plaintiffs’
waiver arguments to be without merit.
First, the parties’ joint pretrial stipulation appears to stipulate only as
to jurisdiction and venue being proper, and the authenticity of the medical
records and bills. Although the stipulation stated that Plaintiffs were
claiming Defendant was negligent in maintaining its store, it cannot be
said that this statement was equivalent to Defendant stipulating that
section 768.0710, Florida Statutes, was the controlling statute and—as a
result—the jury was no longer required to make a finding regarding notice.
Second, Plaintiffs fail to demonstrate how the doctrine of implied
consent has any applicability in the instant case. The doctrine of implied
consent applies in instances where an issue has not been pled, but based
on the parties’ conduct during trial, it is implied that the parties have
consented to the issue being tried as if it had been pled. Fla. R. Civ. P.
1.190(b) (“When issues not raised in the pleadings are tried by express or
implied consent of the parties, they shall be treated in all respects as if
they had been raised in the pleadings”). In contrast, here, the record
demonstrates that Plaintiffs pled the issue of negligent maintenance in
their complaint, and Defendant does not argue otherwise.
Before trial, both parties submitted proposed jury instructions that
included standard jury instruction 401.20(a). However, once the parties
proceeded to the charge conference, Defendant objected to instruction
401.20(a), arguing that it needed revision or modification before it could
be given to the jury. Because this was the proper time for Defendant to
raise such an objection, Defendant preserved this issue for appellate
review.
B. The trial court erred in denying Defendant’s motion to modify the
standard jury instruction
Turning to the merits of Defendant’s argument, premises liability slip-
and-fall actions prior to 2010 were governed by section 768.0710, which
provided as follows:
(1) 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
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or substances that might foreseeably give rise to loss, injury,
or damage.
(2) In any civil action for negligence involving loss, injury, or
damage to a business invitee as a result of a transitory foreign
object or substance on business premises, the claimant shall
have the burden of proving that:
(a) The person or entity in possession or control of the
business premises owed a duty to the claimant;
(b) The person or entity in possession or control of the
business premises acted negligently by failing to exercise
reasonable care in the maintenance, inspection, repair,
warning, or mode of operation of the business premises.
Actual or constructive notice of the transitory foreign object
or substance is not a required element of proof to this claim.
However, evidence of notice or lack of notice offered by any
party may be considered together with all of the evidence;
and
(c) The failure to exercise reasonable care was a legal
cause of the loss, injury, or damage.
§ 769.0710, Fla. Stat. (2009) (emphasis added).
However, in 2010, section 769.0710 was repealed and replaced with
section 768.0755, Florida Statutes, which now provides as follows:
(1) If a person slips and falls on a transitory foreign substance
in a business establishment, the injured person must prove
that the business establishment had actual or constructive
knowledge of the dangerous condition and should have taken
action to remedy it. Constructive knowledge may be proven
by circumstantial evidence showing that:
(a) The dangerous condition existed for such a length of
time that, in the exercise of ordinary care, the business
establishment should have known of the condition; or
(b) The condition occurred with regularity and was
therefore foreseeable.
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(2) This section does not affect any common-law duty of care
owed by a person or entity in possession or control of a
business premises.
§ 768.0755, Fla. Stat. (2010) (emphasis added).
Notably, section 768.0755 differs from its predecessor, section
768.0710, by not allowing for liability based solely on the business
establishment’s general failure to maintain the premises. Instead, section
768.0755 requires the plaintiff prove that the business establishment had
actual or constructive notice of the dangerous condition before liability
may be found. See Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418,
424–26 (Fla. 4th DCA 2014) (discussing the differences between sections
768.0755 and 768.0710).
After section 768.0710 was repealed and replaced with section
768.0755, the Supreme Court Committee on Standard Jury Instructions
in Civil Cases (“Committee”) submitted a written report proposing an
amendment to instruction 401.20(a). In re Standard Jury Instructions in
Civil Cases – Report No. 19-02., 285 So. 3d 255 (Fla. 2019) (“The Committee
explains that its proposal stems from the repeal of section 768.0710,
Florida Statutes, which previously governed claims for premises liability
for transitory substances in business establishments, and the 2010
enactment of section 768.0755, Florida Statutes, which now governs such
claims.”).
However, the only amendment which the Committee recommended to
instruction 401.20(a) was replacing a note directing the parties to refer to
section 768.0710 and related case law with a note stating, “For transitory
foreign substances in a business establishment, see F.S. 768.0755 and
cases interpreting it.” Report No. 19-02 of the Committee on Standard
Jury Instructions (Civil) at 2 (June 7, 2019). The Committee did not
propose redrafting instruction 401.20(a) itself, stating that the instruction
remained “accurate for premises liability claims involving a landowner or
possessor’s negligence toward invitees and invited licensees that do not
involve transitory foreign substances.” Id. (emphasis added). The
Committee further stated that instruction 401.20(a) should not be
redrafted until there is sufficient case law interpreting section 768.0755.
Id.While Defendant’s motion for a new trial was pending before the trial
court, the Florida Supreme Court approved the Committee’s recommended
amendment to instruction 401.20(a)’s note. In re Standard Jury
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Instructions, 285 So. 3d at 255. The supreme court’s opinion states “we
express no opinion on [the amendment’s] correctness and remind all
interested parties that this authorization forecloses neither requesting
additional or alternative instructions nor contesting the legal correctness
of [instruction 401.20(a)].” Id.
As the instant case involves “transitory foreign substances in a
business establishment,” section 768.0755 reasonably should be
referenced in framing jury instructions. That statute provides, in pertinent
part: “If a person slips and falls on a transitory foreign substance in a
business establishment, the injured person must prove that the business
establishment had actual or constructive knowledge of the dangerous
condition and should have taken action to remedy it.” § 768.0755(1), Fla.
Stat. (2014) (emphasis added).
Instruction 401.20(a) predates 768.0755’s enactment and does not
account for the statute’s requirement that an injured party in a slip and
fall case “must prove that the business establishment had actual or
constructive knowledge of the dangerous condition.” As noted earlier, the
jury was instructed that Plaintiffs must prove Defendant “negligently failed
to maintain the premises in a reasonably safe condition, or negligently
failed to correct a dangerous condition about which the Defendant either
knew or should have known, by the use of reasonable care, or negligently
failed to warn Plaintiff of a dangerous condition about which the Defendant
had, or should have had, knowledge greater than that of Plaintiff . . . .”
(emphasis added).
Defendant correctly argues instruction 401.20(a) was written in the
disjunctive; it permitted the jury to find Defendant liable on a theory of
negligent maintenance without making the statutorily required finding
that Defendant had actual or constructive knowledge of the dangerous
condition.
Instruction 401.20(a) would have been appropriate under the old
governing statute, section 768.0710, because it was permissible for the
jury to find liability on the theory of negligent maintenance without making
a finding as to actual or constructive notice. See § 768.0710(2)(b), Fla.
Stat. (2009) (“Actual or constructive notice of the transitory foreign object
or substance is not a required element of proof to this claim.”).
However, under section 768.0755, the new governing statute, a jury
cannot find liability in a case involving “transitory foreign substances in a
business establishment” unless it finds that the business establishment
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had actual or constructive notice. See § 768.0755(1), Fla. Stat. (2014) (“If
a person slips and falls on a transitory foreign substance in a business
establishment, the injured person must prove that the business
establishment had actual or constructive knowledge of the dangerous
condition and should have taken action to remedy it.”).
Accordingly, instruction 401.20(a), as written, is incompatible for a
lawsuit alleging a post-July 1, 2010 “slip[] and fall[] on a transitory foreign
substance in a business establishment.” Id. Thus, we agree with
Defendant that instruction 401.20(a) should not have been provided to the
jury without modification. See, e.g., Allstate Ins. Co. v. Vanater, 297 So.
2d 293, 295 (Fla. 1974) (“An instruction which tends to confuse rather
than enlighten the jury is cause for reversal if it may have misled the jury
and caused them to arrive at a conclusion that otherwise they would not
have reached.”); Chevron U.S.A., Inc. v. Forbes, 783 So. 2d 1215, 1220 (Fla.
4th DCA 2001) (“The proper analysis in determining whether an erroneous
instruction requires reversal is ‘whether the jury might reasonably have
been misled.’”) (quoting Fla. Power & Light Co. v. McCollum, 140 So. 2d 569(Fla. 1962)).
Conclusion
Florida Standard Jury Instruction (Civil) 401.20(a), requested by
Plaintiffs and provided by the trial court, but without modification, was
not legally correct. As such, it could confuse or mislead the jury. The trial
court erred in providing this instruction to the jury without appropriate
alteration consistent with the current statute. Thus, we remand for a new
trial. We otherwise affirm without discussion on the remaining issues
raised by Defendant on appeal and by Plaintiffs in their cross-appeal.
Reversed and remanded for new trial.
CONNER, C.J., and KUNTZ, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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