Premises Liability

Appellate Court Refuses to Overturn Discovery Order Compelling Production of Social Media Photos in Florida Slip and Fall Case

Published on: January 12, 2015 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s Fourth District Court of Appeal has refused to overturn a unique discovery order in a premises liability action. In Nucci v. Target Corp., a woman allegedly slipped and fell on a foreign substance while shopping at a Florida department store in 2010. Following the incident, she filed a premises liability lawsuit against the store. In her complaint, the woman sought financial compensation for her resulting physical harm, pain and suffering, medical expenses, lost wages, future impairment, and other damages.

Prior to taking the injured woman’s deposition, counsel for the store reviewed the injured woman’s public Facebook social media profile. During her deposition, the attorney asked the woman to provide him with access to the photos included in her Facebook account. At the time, the woman objected to the company’s request. Two days later, counsel for the store again reviewed the woman’s social media profile and discovered a number of photographs were deleted. After that, the store filed a motion to compel inspection of the woman’s Facebook account. The store also asked the woman to refrain from destroying any further information included in her social media account.

Florida’s Third District Refuses to Award Costs and Attorney’s Fees in Bungled Premises Liability Case: Design Home Remodeling Corp. v. Santana

Published on: September 19, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Design Home Remodeling Corp. v. Santana, a man was apparently injured when he fell while visiting a property owned by a condominium association. About 18 months later, the man and his wife filed a premises liability lawsuit against the association. As part of his complaint, the man alleged the association negligently maintained the property. The association responded by arguing a non-party was responsible for any negligent maintenance that existed on the property. The couple then amended their complaint to add the non-party as a defendant in the premises liability lawsuit. The couple also claimed that the newly added defendant failed to warn the injured man about a slippery substance that existed on the floor of the condo association’s property.

Sixty days later, the new defendant served the couple with a proposed settlement offer under Section 768.79 of the Florida Statutes. This section states that a plaintiff may be held liable for a defendant’s attorney’s fees and costs if the plaintiff refuses to accept a settlement offer within 30 days in situations when the final judgment is rendered in favor of the defendant or is valued at least 25 percent below the refused settlement offer. Neither member of the couple accepted the defendant’s settlement offer.

About three years later, a trial court entered summary judgment in favor of the defendant. Summary judgment is only appropriate when no genuine issue of material fact is in dispute and a party to the lawsuit is entitled to judgment as a matter of law. Following the trial court’s order, the defendant asked the court to award the company attorney’s fees and costs. The court denied the defendant’s motion based on Florida Rule of Civil Procedure 1.442(b). Under the rule, a defendant may not make a settlement offer to a plaintiff before 90 days has passed since the lawsuit was commenced. The defendant’s motion for rehearing was denied, and the company appealed the trial court’s refusal to award attorney’s fees and costs to Florida’s Third District Court of Appeals.

Florida Appeals Court Affirms Judgment in Premises Liability Case Where Property Owner had No Actual or Constructive Notice of Dangerous Condition: Walker v. Winn-Dixie Stores, Inc.

Published on: August 25, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Walker v. Winn-Dixie Stores, Inc., a woman claimed that she was hurt when she fell on a wet floor while visiting a Florida grocery store. According to the woman’s complaint, she was accompanied to the store by a disabled friend who utilized an electric cart in order to shop. Following the 30-minute shopping trip, the woman apparently returned her friend’s scooter to the store while he waited in her vehicle. As she was returning the electric cart, it apparently began to mist rain outside. About one minute after the woman returned the scooter, she was allegedly injured when she slipped and fell inside of the store.

The woman testified that she did not see water on the floor prior to falling. She also stated the water was not noticeable, and she had no idea how long it may have pooled before she fell. In addition, the grocery store manager stated he did not know whether it began raining immediately prior to the woman’s injury accident or earlier in the day. Still, the manager stated the umbrella racks located near the entry and shown on surveillance video of the woman’s fall were only placed in the location if rain was anticipated or ongoing.

In response to the woman’s personal injury lawsuit, the grocery store denied negligence and filed a motion for summary judgment. In a motion for summary judgment, a party to a lawsuit asks the court to find that no meaningful facts are in dispute and that the moving party is entitled to win the case without proceeding to trial. According to the trial court, Section 768.0755 of the Florida Statutes requires that a property owner have actual or constructive notice of an allegedly dangerous condition in order to be held responsible for an individual’s slip-and-fall injury. Since there was no evidence offered to demonstrate the grocery store knew or should have known about the water on the floor at the time of the woman’s accident, the trial court granted the grocery store’s motion.

Florida Federal Court Discusses Constructive Notice in Premises Liability Case: Feliciano v. Target Corp.

Published on: July 15, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Feliciano v. Target Corp., a woman was allegedly injured when she slipped and fell on a clear liquid while visiting an Estero department store. According to the woman, she failed to notice the notebook-sized pool of liquid on the floor because she was looking ahead, and it was obscured by her shopping cart. In addition, the woman claimed that there was no indication that anyone had noticed or stepped in the liquid prior to her fall. After the woman was injured, a store employee apparently took her statement regarding the incident and then cleaned up the spilled liquid.

About six months after her fall, the woman filed a premises liability lawsuit against the department store seeking damages for her purported injuries. In her complaint, she accused the store of maintaining the premises in a negligent manner and failing to warn her of the allegedly dangerous condition. The department store responded by filing a motion for summary judgment. A party that files such a motion is asking a court to rule in their favor because the undisputed facts of the case demonstrate that the party is entitled to judgment based on current law. According to the department store, the business was entitled to summary judgment because the woman offered no evidence to suggest store employees were aware of or should have known about the spill that caused her fall.

In order to prevail on a premises liability claim in Florida, a plaintiff must demonstrate that a property owner owed the plaintiff a duty to maintain a building, parking lot, or other location that an invitee may visit in a reasonably safe physical condition, the property owner breached that duty, and the property owner’s breach caused the plaintiff’s harm. A property owner is also required to warn invitees of any hazards the property owner knows about or should be aware of. Section 768.0755(1) of the Florida Statutes places the burden on a premises liability plaintiff to prove that a property owner had “actual or constructive knowledge of the dangerous condition” and failed to remedy it. Constructive knowledge may be demonstrated using circumstantial evidence that a property owner failed to inspect the premises for long periods of time. It may also arise when a particular dangerous condition happens with regularity. The mere presence of a spill on a floor in a business, however, is not sufficient to establish constructive knowledge.

Diversity Jurisdiction at Issue in Florida Premises Liability Case: Mortensen v. Omni Hotels Management Corp.

Published on: June 12, 2014 | by Friedman Rodman Frank & Estrada, P.A.

A federal district court in Florida has ordered that a man’s premises liability lawsuit be tried before a Nassau County court. In Mortensen v. Omni Hotels Management Corp., a man was allegedly injured when he slipped and fell while visiting a restaurant located inside of an Omni Hotel franchise. Prior to filing his case, the man offered to settle his claim against the hotel for $250,000. After the hotel refused the man’s settlement offer, he filed a premises liability lawsuit against the company in Nassau County, Florida. In his complaint, the man asked the court to award him “more than $15,000” in compensation for his medical care, pain and suffering, and a number of other supposedly continuing damages. The hotel removed the case to federal court based on diversity jurisdiction and the man promptly asked the federal court to remand the case back to state court.

In order to remove a lawsuit to federal court, 28 U.S.C. § 1332(a) states the parties must be citizens of different states and the amount in controversy must exceed $75,000. According to the Middle District of Florida, the injured man and the hotel chain agreed that they hailed from different states. The only question at issue in the case related to the amount in controversy. Since the hotel sought to remove the case to federal court and the injured man did not specify the amount of damages he sought, the federal court stated the burden of demonstrating the amount in controversy was more than $75,000 fell on the business. Additionally, the court said any doubts regarding proper federal jurisdiction should be decided in favor of remanding the case to state court.

Next, the Florida federal court examined the facts of the case. Although a settlement offer may provide evidence regarding the amount in controversy, the court stated the man’s request for $250,000 appeared to be simple settlement posturing when compared to his accrued medical expenses. The court also found that the man’s purported ongoing medical needs did not support a finding that the amount in controversy requirement was met. Likewise, the court stated that the fact that no stipulation existed regarding the amount of damages the man expected to recover did not suggest the amount in controversy exceeded $75,000. Finally, the federal court said although awards from similar cases can assist a court in determining the amount in controversy, none of the cases offered as supporting evidence by the hotel suggested the injured man would likely recover more than $75,000. Since the hotel did not offer sufficient evidence to suggest the amount in controversy supported federal jurisdiction, the court remanded the man’s premises liability lawsuit to state court.

Panama City Federal Court Orders Department Store to Share Evidence in Slip and Fall Case: Sowell v. Target Corp.

Published on: June 2, 2014 | by Friedman Rodman Frank & Estrada, P.A.

A federal court in Florida has refused to allow a department store to claim surveillance video footage of an individual’s slip and fall while on company property was protected from disclosure by the work product privilege. In Sowell v. Target Corp., a woman was purportedly hurt when she fell inside of a chain department store. Following her injury accident, the woman filed a lawsuit against the business and sought a digital copy of the store’s video footage of the incident as part of a discovery request. According to the retailer, all video footage at the company’s chain of stores is erased in the ordinary course of business after a limited time period. Instead of erasing the video, the store saved a copy of the woman’s fall after she reported it. Because of this, the store alleged that the video was prepared in anticipation of litigation and should not be entered into evidence due to the work product privilege.

Although items prepared for litigation in Florida are normally protected under the work product doctrine, anything created in the ordinary course of business is ordinarily discoverable in a lawsuit. According to the Northern District of Florida, the store’s surveillance videotape was not only responsive to the woman’s discovery request, it was created as a part of the chain’s routine business practice of monitoring employees and customers for theft and other potential issues.

Additionally, the court held that the business failed to demonstrate the video was created for any other reason or offer a valid justification for withholding it. Finally, the Florida federal court stated a delay in producing the video might place the injured woman at a disadvantage if store employees were deposed after reviewing the slip and fall tape. Since the department store’s video evidence of the woman’s injury accident was not privileged and withholding surveillance footage of the incident from her might place the woman at a disadvantage at trial, the Northern District of Florida ordered the business to share the film. Continue Reading ›

Establishing Constructive Knowledge in Florida

Published on: May 23, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a man appealed a grant of summary judgment as to one of the causes of action in his slip and fall case. The case arose at a country club where the man was an invitee. There was a slippery substance on the dance floor and the man slipped on it. The club had allowed patrons to take drinks onto the dance floor.

The man filed suit alleging that the club had created the dangerous condition, or it knew or should have known of the condition because it was there long enough that it should have been discovered. He alleged that he experienced bodily and other injuries as a direct and proximate result of the club’s negligence.

The club answered and later filed for summary judgment. It argued that the plaintiff had to establish the club’s knowledge of the dangerous condition under Florida Statutes (2010) section 768.0755. It also argued that even though constructive knowledge could be established by showing the condition existed for so long the defendant should have known of the condition by exercising ordinary care, the plaintiff offered no evidence about how long the substance had been on the floor. Continue Reading ›

Negligence Per Se in Florida Escalator Injury Case

Published on: April 28, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a 2010 case, a woman appealed from a judgment entered after directed verdict in a personal injury case. The woman had sued an elevator corporation and Miami Dade County after she fell on an escalator at the airport. She claimed the escalator had stopped abruptly. She had fallen. The escalator had been reported as not working just hours before her fall.

There was no record of a technician checking the escalator and also no record of repair work performed on the escalator. When the case went to trial, the court excluded evidence that there had been previous problems with the escalator and also denied the plaintiff’s request that the jury be instructed on negligence per se. The defense attorney was permitted to argue there was no evidence of prior problems over the plaintiff’s objection.

The plaintiff’s doctor testified that the plaintiff would require back surgery in the future, but the trial court wouldn’t allow the doctor to give an opinion about future surgery because he was not a surgeon.

Written Interrogatories in Florida Slip and Fall Cases

Published on: April 3, 2014 | by Friedman Rodman Frank & Estrada, P.A.

An important aspect of the discovery process during litigation is the preparation of responses to interrogatories. A common practice among plaintiffs’ lawyers is to ask their clients to prepare handwritten responses to the defendant’s discovery. These responses are solely for the attorney’s benefit. Certain interrogatories may ask for an opinion or contention not within the personal knowledge of the plaintiff, though it is within the knowledge of the attorney. Therefore a written interrogatory response may differ from a draft response prepared by a plaintiff for her attorney.

In a recent appellate decision on a discovery battle, a plaintiff sought review of a court order compelling her to produce privileged attorney-client communications. The case arose because the woman filed suit against a supermarket alleging that she had suffered personal injuries after a slip and fall in a large puddle at the store.

The market had served a set of written interrogatories on the plaintiff during the discovery process. The plaintiff had answered them and verified them as true and correct to the best of her knowledge. One of the interrogatories asked her to provide the facts that formed the basis for her allegation that the defendant market knew of the dangerous condition.

Retroactive Application of a Statute in Florida Slip and Fall

Published on: March 7, 2014 | by Friedman Rodman Frank & Estrada, P.A.

A recent case arose from a slip and fall that happened in a mall in 2008. The plaintiff had gone to the mall to buy clothes. The owner of the mall had contracted with a company to clean the mall. The plaintiff slipped on clear slippery material on the floor. She suffered injuries and had to seek medical treatment.

In 2010, she sued the owner of the mall and the cleaning company for negligence. She alleged they should have warned her, should not have let the spill remain on the ground and should have had a clean up plan to make sure spills didn’t stay on the floor. Before trial, the defendants moved for a ruling that section 768.0755, Florida Statutes (2010), applied retroactively and would control the trial. The court denied the motion, and decided that the 2008 version of the statute would be operative.

During the trial’s voir dire, the trial court asked prospective jurors who had participated in a trial or had a family member who had been involved in a trial, other than a divorce. Four jurors answered that they hadn’t been involved in a trial previously. After the plaintiff’s presentation, the defendant moved for a directed verdict. They argued that the motion for directed verdict should have been granted because the plaintiff failed to show their actual or constructive knowledge of the spill or even that they’d breached the standard of care under 768.0710 or 768.0755.