Banana-peel lawsuits: beyond slapstick

There is something about a banana that makes us laugh.

For generations this delicious tropical produce has been at the center of one joke after another. From Charlie Chaplin to the Three Stooges to Woody Allen, bananas have propelled comedians into head-over-heels antics and won guaranteed guffaws.

But, alas, there is a dark side to the yellow fruit.

Just ask the seven justices of the Florida Supreme Court, who are mulling the case of two different women in two different grocery stores who fell victim - quite literally - to bananas.

It is a legal dispute that gives new meaning to the phrase "building a case on appeal."

Of course, for lawyers and clients involved in what are called slip-and-fall cases, this is no laughing matter. Serious injuries can result. Big money is potentially at stake. And the two cases could rewrite this state's rules on when judges should allow juries to decide difficult cases that hinge on little more than the color of a banana peel.

The basic facts are not in dispute. During a 1992 excursion to a U-Save Supermarket in Palm Beach County, Elvia Soriano slipped and fell on what she described as a brown, rotten banana peel. She sued the grocery store chain, claiming that the store was responsible for a substantial injury to her knee because it had failed to quickly clean the banana off the floor.

In the second case, Evelyn Owens was shopping in 1995 at a Publix Supermarket in St. Cloud, Fla., when she slipped and fell on what she described as a small piece of slightly discolored banana. She was treated and released from a local hospital but missed several weeks of work. She sued Publix, claiming that the store had allowed the banana to remain on the floor rather than promptly cleaning it up.

It's all in the timing

The critical issue in both cases is how long the banana was on the floor.

If it was on the floor for only a few minutes, it would be unreasonable to expect store employees to have immediately located it and cleaned it up. But if it was on the floor for a half hour, or several hours, or even days, that would suggest that perhaps the store was negligent in maintaining a safe shopping environment for its customers.

The law in Florida is clear that storekeepers must provide a safe place to shop. But the law is also clear that if a hazard arises, a shopkeeper must be allowed a reasonable amount of time to notice it and take action to remove it or warn shoppers.

That's where the color of the banana comes in. Lawyers for both Ms. Soriano and Ms. Owens argue that because the banana and peel were brown, it suggests that they had been on the floor for as long as two days.

Lawyers for the stores say there is no proof that the bananas became brown during an extended period of time on the floor. It is just as likely, they argue, that brown banana bits dropped to the floor only moments before the shoppers slipped and fell.

When both cases went to trial, judges threw them out before they were submitted to a jury. The judges ruled that the color of the banana alone didn't establish enough of a case against the stores to send the case to a jury.

Florida's Supreme Court is considering whether the trial judges made the right decision or whether the standard should be changed to allow juries to decide such cases.

Rise of vegetable law

Bananas apparently aren't the only dangerous produce out there. In arguing the case, lawyers tapped into an entire body of law that is emerging in Florida around slippery foods. They include: a 1984 case of "old nasty collard green leaves" on the floor of a Pik-N-Pay Supermarket, a 1988 case involving frozen peas thawing in an aisle of a Winn-Dixie Store, a 1993 case involving "gunky, dirty and wet and black" sauerkraut on the floor of an X-tra Super Food Center, and a 1998 case involving mashed potato on the floor of an Outback Steakhouse. In addition there is a 1966 case involving a "dark, overripe, black, old, nasty looking" banana peel on the floor of a Winn-Dixie Supermarket.

Slip-and-fall cases can be difficult to prove to juries, says Joseph Williams, a Winter Park lawyer who filed a friend-of-the-court brief in the case on behalf of a Florida trial lawyers' group.

"It's not roll out the wheelbarrow full of money time," he says. "Juries are skeptical." That's because most jurors take the common-sense view that shoppers should look where they are going, and that if they slip and get hurt it is largely their own fault.

But Mr. Williams says it is not always the shopper's fault, and it should be left to a jury to decide such difficult questions.

"Judges apply the law to the facts, but the jury finds the facts," he says. "These are factual type questions: How long had [the banana] been on the floor? How brown was the banana peel? Those are facts that judges have no business deciding."

But Michael Hammond, an Orlando lawyer who represents both U-Save and Publix in the Supreme Court case, worries about jury emotion and prejudice: "A typical jury is more likely to give the benefit of the doubt to a person who is injured, because a typical juror thinks, 'if I slip and hurt myself I want someone to help pay for it,' " he says.

"If you just throw it out there and just let the jury decide, they might make a decision based on [mere inferences rather than facts]," Mr. Hammond says.

During oral argument last week in Tallahassee, the justices offered no clue as to how they might rule. A decision could take several months, lawyers say.

(c) Copyright 2000. The Christian Science Publishing Society