Wal-Mart, Sam’s Club and other retail giants are now in the fuel business. You will see self-service pumps located adjacent to the highways on the same property as the retail discount stores. More and more attention and marketing efforts are directed at capturing the huge market of gasoline consumers who are already club member customers by offering discounts on all gas purchases at the discount stores the gas pumps with the same use of the member’s membership card.
We are accustomed to seeing an attendant roaming about the area or seated on a stool or watching from the attendant’s office adjacent to the pumps. The company has that employee present because Florida law requires the employee present at all hours the pumps are open for customer use. If the employee is not present the company is violating F. s. 526.141.
526.141 Self-service gasoline stations; attendants; regulations.—(1) This section authorizes the establishment of self-service gasoline stations.
(2) A “self-service gasoline station” shall be that portion of property where flammable and combustible liquids used as motor fuels are stored and subsequently dispensed from fixed, approved dispensing equipment into the fuel tanks of motor vehicles by persons other than the service station attendant.
(3) All self-service gasoline stations shall have at least one attendant on duty while the station is open to the public. The attendant’s primary function shall be the proper administration, supervision, observation, and control of the dispensing of flammable and combustible liquids used as motor fuels while such liquids are actually being dispensed.
It shall be the responsibility of the attendant to prevent the dispensing of flammable and combustible liquids used as motor fuels into portable containers unless such container bears a seal of approval of a nationally recognized testing agency; to control sources of ignition; and immediately to handle accidental spills and fire extinguishers if needed. The attendant on duty shall be mentally and physically capable of performing the functions and assuming the responsibility prescribed in this subsection.
(4)(a) The “attendant control area” is that area reserved for the placing of the attendant, which shall be not more than 100 feet from the dispensing area and shall contain the fire- equipment and emergency controls.
(b) The “dispensing area” is that area where the pumps used to dispense flammable and combustible liquids used as motor fuels are located. The dispensing area shall at all times be in clear view of the attendant, and the placing or allowing of any obstruction to vision between the dispensing area and the attendant control area shall be prohibited.
The attendant shall at all times be able to communicate with persons in the dispensing area. Emergency controls shall be installed at a location acceptable to the authority having jurisdiction, but controls shall not be more than 100 feet from dispensers. Operating instructions and warning signs shall be conspicuously posted in the dispensing area.
(5)(a) Every full-service gasoline station offering self-service at a lesser cost shall require an attendant employed by the station to dispense gasoline from the self-service portion of the station to any motor vehicle properly displaying an exemption parking permit as provided in s. 316.1958 or s. 320.0848 or a license plate issued pursuant to s. 320.084, s. 320.0842, s. 320.0843, or s. 320.0845 when the person to whom such permit has been issued is the operator of the vehicle and such service is requested.
Such stations shall prominently display a decal no larger than 8 square inches on the front of all self-service pumps clearly stating the requirements of this subsection and the penalties applicable to violations of this subsection. The Department of Agriculture and Consumer Services shall enforce this requirement.
(b) Violation of paragraph (a) is a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(6) All self-service equipment used to dispense gasoline shall be approved by a nationally recognized testing agency for its intended use.
(7) A refiner, terminal supplier, wholesaler, or retailer is not liable for damages resulting from the use of incompatible motor fuel dispensed at a retail site if:(a) The incompatible fuel meets the requirements and standards adopted under s. 525.14;
(b) The incompatible fuel was selected by the purchaser; and
(c) The retail dispenser that dispensed the incompatible fuel was properly labeled according to the labeling requirements adopted under s. 525.14.
(8) The Chief Financial Officer, under her or his powers, duties, and functions as State Fire Marshal, shall adopt rules for the administration and enforcement of this section, except for subsection (5) which shall be administered and enforced by the Department of Agriculture and Consumer Services.
This statute can be used by the injured consumer’s lawyer as evidence that the presence of any unsafe or hazardous condition at or near the pumps, should have been known by the imputed knowledge of what the gas attendant should have known had he or she been doing his or her job effectively.
Our Second Distinct Court of Appeals reversed a summary judgment in favor of a gas station in a premises liability case where the jury was denied the opportunity to decide the case.
On January 22, 2007, Terry Tallent slipped and fell on a diesel fuel spill at Pilot’s service station in Punta Gorda, Florida. Tallent filed a complaint alleging that Pilot’s negligent maintenance of the station caused him to fall. In its answer, Pilot asserted that the spill was open and obvious and that Pilot employees complied with its fuel spill cleanup procedures. The trial court found that there were no material issues of fact and granted final summary judgment in favor of Pilot.The Appellate Court reversed and sent the case back for trial.
The court held that the injured consumer, Tallent was a business invitee; therefore, Pilot owed him two duties:
“(1) the duty to use reasonable care in maintaining the property in a reasonably safe condition; and
(2) the duty to warn of dangers of which the owner has or should have knowledge and which are unknown to the invitee and cannot be discovered by the invitee through the exercise of reasonable care.” Wolford v. Ostenbridge, 861 So. 2d 455, 456 (Fla. 2d DCA 2003).
Tallent was a veteran truck driver, and he immediately noticed the spill on arriving at the station. He conceded that he had notice of the spill because he saw the trash cans blocking the aisles as he pulled up and he walked through the spill as he approached the Pilot store. It is clear from the record on appeal that Pilot had no duty to warn Tallent because he had knowledge of the existence of the spill. See Emmons v. Baptist Hosp., 478 So. 2d 440, 442 (Fla. 1st DCA 1985) (“A prerequisite to the imposition upon the landowner of a duty to warn is that the defendant’s knowledge of the danger must be superior to that of the business invitee.”).
It is now mentioned in the opinion whether the obligations or duties required by F. S. 526.141 was ever raised by the plaintiff but the language applicable to for self service stations and full service stations alike, is helpful to the injured consumer.