Premises Liability Category Archives — Page 3 of 3 — South Florida Injury Attorneys Blog Published by South Florida Injury Lawyers

February 18, 2015

Florida Fifth District Court of Appeal Affirms in Wal-Mart Negligence Case

Typically, if one were asked to think of an object involved in the commission of a tort, an ornamental vegetable would not spring to mind. However, harm caused by an ornamental pumpkin is at the center of a recent negligence decision from Florida’s Fifth District Court of Appeal, Schwartz v. Wal-Mart Stores, Inc. Specifically at issue in Schwartz was whether the trial court erred in granting a motion for a new trial following a zero-damages jury verdict and whether the trial court erred by limiting the retrial to just damages for the plaintiff’s initial medical evaluation after the accident.

The plaintiff in this case was shopping at a Florida Wal-Mart store when she was struck in the back by an ornamental pumpkin. The ornamental pumpkin weighed 8.4 ounces and was described as squishy. Prior to trial, Wal-Mart conceded that the plaintiff was struck by the pumpkin because of an employee’s negligent conduct. However, Wal-Mart contested both causation and damages, which are both necessary for establishing negligence. After trial, a jury issued a zero-damages verdict, finding that Wal-Mart’s negligence was not the “cause” of the plaintiff’s claimed loss, injury, or damages. The trial court granted the plaintiff’s motion for a new trial but limited the new trial to strictly those damages associated with the plaintiff’s initial medical evaluation following the accident. On appeal, Wal-Mart argued that the trial court should not have granted the motion for a new trial, and the plaintiff argued that the trial court should not have limited the inquiry on retrial so narrowly.

February 4, 2015

Fourth District Court of Appeal Clarifies Standard for Florida Negligent Security Cases

by Frankl Kominsky Injury Lawyers

Although negligence predicated on a failure to provide adequate security is not a novel cause of action, there are many questions regarding its application that have yet to be resolved by Florida’s highest court. Foremost among these unresolved questions is whether the standard for premises liability or the standard for ordinary negligence applies when determining liability in a negligent security case. In a recent opinion, Nicholson v. Stonybrook Apartments, LLC, the Fourth District Court of Appeal established what standard would be applied in cases arising in its jurisdiction, which encompasses Broward County and Palm Beach County.

Nicholson arose from a shooting during a party at an apartment complex managed by the defendant. The plaintiff was shot in the apartment complex’s common area and brought suit against the apartment complex, arguing that it failed to maintain its premises in a safe condition and failed to provide adequate security on the property. The suit went to trial, and a jury ruled in favor of the apartment complex, finding that management was not grossly negligent. However, the plaintiff appealed the judgment, arguing that the trial court erred in both allowing the defense to admit evidence regarding her status as a trespasser at the time of the injury and instructing the jury that the plaintiff’s status as an invitee or trespasser was pertinent to the standard of care to be applied.

January 28, 2015

Federal Appeals Court Reverses and Remands for New Trial in Mysterious Death Case

by Frankl Kominsky Injury Lawyers

In a recent decision, Collins v. Marriott International, Inc., the Eleventh Circuit Court of Appeals reviewed an interesting case that involved the un-witnessed death of an Atlanta businessman at a Gulf resort in the Bahamas. At the trial level, the case had progressed all the way to trial, but the trial court ultimately granted the defendants’ motion for judgment as a matter of law, leaving the estate of the deceased person with no recovery. In response, the estate, the plaintiff in this action, appealed.

The death at issue occurred at a resort in the Bahamas where the deceased person owned property. The resort is located on the island of Abaco in the Bahamas and is situated at the end of a peninsula ending in a rocky promontory called “the Point.” The Point is composed of rock formations, steep cliffs dropping to the sea, and a blowhole opening through which waves crash. The resort does not own the area known as the Point, but the land is only accessible from resort property and was not clearly demarcated or separated from the club’s property with either fencing or signage. On the evening of August 16, 2007 at sunset, the deceased person and friends who accompanied him to the club took a golf cart to the Point, which is located only 50 feet from one of the resort’s paths. While his friends were taking pictures, the deceased man decided to walk up the crest of the Point. When his friends walked up to the crest no more than 10 minutes afterward, however, he was not to be found. The friends returned to the resort, and they and resort staff began searching for the deceased person. His body was found the next day in the water of a cove a few miles from the resort.

December 31, 2014

Settlement Reached in Broward County Negligent Security Case

by Frankl Kominsky Injury Lawyers

Many negligent security cases involve a property owner’s liability for failing to adequately secure property from foreseeable third-party criminal activity that causes harm to a resident or other visitor. However, the Sun Sentinel recently reported on the 1.5 million-dollar settlement of a case that presented a more novel theory of negligence in the area of apartment security, which involved the failure of a property management company to adequately screen residents, one of whom eventually murdered another.

This case arose from the tragic shooting of a former Marine in the parking lot of an apartment complex in Plantation, Florida on July 17, 2012. The former Marine was a resident of the apartment complex, and the murderer, as noted above, also resided at the complex. Witnesses at the time of the murder said they were unaware of any preexisting grievance between the two residents. However, the murderer had been a resident at a different apartment complex in Plantation, managed by the same property management company that managed the apartment complex where the murder occurred. The murderer had been evicted from the first property for causing disturbances and making death threats against other tenants. Information regarding the murderer’s eviction was part of a background investigation performed by the management company, but this background check was never reviewed before the decision to permit the murderer to rent an apartment was made. Following the murder, the Marine’s widow brought a wrongful death suit against the property management company, arguing that the management company failed to exercise reasonable care in its evaluation of prospective tenants and that this breach of reasonable care led to the death of her husband.

December 17, 2014

South Florida Federal Magistrate Judge Precludes Attendance of Plaintiff’s Counsel and Videographer at Medical Examination

by Frankl Kominsky Injury Lawyers

At issue in almost all personal injury litigation is the extent of a plaintiff’s physical injuries. Indeed, long before a possible trial, both plaintiffs and defendants enlist physicians to perform medical examinations and make professional determinations regarding the nature and extent of the alleged injuries. Given the obvious privacy interests associated with physical examinations and the defendant’s need to acquire evidence to rebut a plaintiff’s claims, problems related to medical examinations are not uncommon. Some of these possible issues are on full display in Kropf v. Celebrity Cruise, Inc., a recent decision from the U.S. District Court for the Southern District of Florida.

Kropf arose from a slip-and-fall accident on a cruise ship owned and operated by Celebrity Cruises, Inc., the defendant in this case. The plaintiff was injured as a result of the fall and underwent revision surgery of a prior hip replacement. The surgery led to further permanent, debilitating, and significant injuries. In her complaint, the plaintiff alleged the defendant’s “negligence in allowing [the tile] to remain in a wet and slippery condition” caused the fall and, consequently, the resulting injuries. Following the initiation of the action, counsel for Celebrity Cruises emailed the plaintiff’s counsel a Notice of Compulsory Medical Evaluation, which stated the plaintiff needed to undergo a medical examination by the defendant’s medical expert and that the examination was being conducted for the purposes of determining the nature and extent of the plaintiff’s alleged injuries and any disabilities resulting from them. This notice was sent on October 14, 2014, but the plaintiff’s counsel did not respond until November 14, 2014, only about two weeks before the scheduled examination of December 1, 2014. The response stated that the plaintiff’s counsel intended to send a videographer to the medical examination. In response, the defendant brought a motion, asking the court to preclude both the plaintiff’s counsel and the plaintiff’s videographer from attending the medical examination.

December 10, 2014

South Florida Federal District Court Sides with Plaintiff and Remands Negligence Case Back to State Court

by Frankl Kominsky Injury Lawyers

An issue of importance that any potential plaintiff must consider at the initiation of litigation is whether to bring his or her case in state or federal court. Given the differences in both procedural and, in more limited circumstances, substantive law to be applied, this choice can have a marked impact on the outcome of a case. Although not all litigants will have this option, since certain cases are limited to a particular forum based on their design or the issues involved, when the option presents itself litigants will often make an effort to keep the case in the chosen forum. Issues regarding the selective choice of forum were addressed in Garber v. Wal-Mart Stores, Inc., a recent decision from the United States District Court for the Southern District of Florida.

The Garber case arose from a slip-and-fall accident at a Wal-Mart store in Delray Beach, Florida. Following the fall, the injured customer brought a premises liability suit against Wal-Mart in the Circuit Court of the Fifteenth Judicial Circuit of Florida. Following initiation of the case, the defendant served a Request for Admission on the plaintiff, which asked in part that the plaintiff admit she was seeking less than $75,000 in damages. The plaintiff denied the admission. In a following response to interrogatory requests served by the defendant, the plaintiff claimed more than $88,000 in medical expenses. Thereafter, the defendant filed a notice of removal to federal court, since the action could’ve originally been brought in federal court because the parties were residents of diverse states and the amount in controversy exceeded $75,000. The parties then entered into a joint stipulation to dismiss the case without prejudice. Following dismissal of the first action, the plaintiff brought a second action in Florida state court, which was substantially similar to the first, except for the fact that the plaintiff added a new defendant, the manager of the Wal-Mart where the fall occurred. Following initiation of the second suit, Wal-Mart again filed a Notice of Removal. Following removal, the plaintiff made a motion in federal court to have the case remanded back to state court, since there was no federal subject matter jurisdiction. Therefore, at this juncture, the federal court needed to determine whether the presence of the new defendant eliminated possible federal jurisdiction such that the action could no longer be removed to federal court and, accordingly, should be remanded to back to state court.

September 10, 2014

Federal Court Denies Motion to Dismiss in Premises Liability Case at Sawgrass Mills Mall

by Frankl Kominsky Injury Lawyers

Although it is uncommon for premises liability cases to find their way to federal court, the specifics of a case occasionally make resolution in the federal setting possible. When such federal adjudication is accessible, litigants will often strategically use the availability of the federal forum – and, more importantly, the differences in its rules – to their advantage. A recent case from the Southern District of Florida, Fink v. Burlington Coat Factory of Florida, LLC, provides an example of this strategic use of forum selection.

Fink arose from a slip and fall accident at the Burlington Coat Factory in Sawgrass Mills Mall. As a result of the fall, the plaintiff suffered a variety of severe injuries, and she decided to bring a premises liability suit against Burlington Coat Factory and several other defendants. In her complaint, the plaintiff made somewhat conclusory allegations of negligence. Specifically, the plaintiff stated that the defendants negligently maintained the floor in a bumpy and unsmooth condition, which was characterized by unsafe protrusions. However, the plaintiff did not state any particular condition or characteristic that existed and directly caused her fall. The plaintiff originally brought her suit in state court in Broward County, but the defendants, recognizing that the action could have been brought in federal court, had the case removed to the Southern District of Florida pursuant to 28 U.S.C. § 1332(a). After removing the case to federal court, the defendants brought a motion to dismiss, arguing, in part, that the plaintiff’s pleadings were insufficient to maintain her cause of action based on the federal pleading standards delineated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009).

For many standard causes of action, both state and federal procedural rules provide form documents outlining the essential facts and allegations one can plead to bring a case. In the instant case, the plaintiff’s complaint was substantially similar to the form pleadings for “fall-down negligence” claims provided by the Florida Rules of Civil Procedure. See Fla. R. Civ. P. Form 1.951. Although the action had been brought in state court, where such pleading would have been sufficient, the defendants nonetheless argued that Florida form pleading was insufficient under federal pleading standards. One can see the irony of this argument, considering it was the defendants who brought the case to federal court. However, despite the defendants’ calculated use of the federal removal statute, the court determined that, irrespective of the heightened pleading standard in federal court, the plaintiff’s factual allegations were sufficient to overcome the motion to dismiss.

July 30, 2014

Federal Court Dismisses Several Counts in Personal Injury Case Following Cruise Ship Accident

by Frankl Kominsky Injury Lawyers

As the home of two of America’s three busiest cruise ship ports and the headquarters of numerous cruise companies, the South Florida metropolitan area hosts a considerable amount of litigation involving personal injury at sea. A common surprise to many litigants, however, is that Florida law does not apply in these actions. Instead, federal admiralty law, also known as maritime law, controls the disposition of recovery for those harmed aboard ships on navigable waters. One recent case, Gandhi v. Carnival Corporation, demonstrates how application of admiralty law can limit the possibility of full recovery for those injured on cruise ships and the importance of understanding the nuances of this distinct body of law.

In Gandhi, parents of a child injured aboard a Carnival Cruise Lines ship brought suit against the company, both personally and on their daughter’s behalf. The plaintiffs’ daughter was injured while standing in a ship elevator when one of her arms was drawn into a space into which an elevator door was closing. Although her arm was ensnared, the elevator door attempted to open and close several times, a process which continued until a fellow passenger freed the arm with assistance of a chair leg. As a result, the child suffered a deep laceration to one of her elbows, severing of several tendons, and a fracture. Her father, who witnessed the entire ordeal, further alleged to have suffered severe emotional trauma. The parents brought suit against Carnival in the U.S. District Court for the Southern District of Florida for the following claims: a negligence claim for damages of the minor child, a claim for damages pursuant to the negligent infliction of emotional distress, a damages claim for medical expenses incurred, and a damages claim relating to the loss of filial consortium. Carnival brought a motion to strike provisions from the first claim and to dismiss the remaining claims, and the court, applying admiralty law, sided with Carnival.

First, as a preliminary matter, the court noted that general maritime law controlled in this action and that neither general common law nor state law would be consulted unless there was an absence of maritime law on an issue to be decided. Next, the court moved to the plaintiffs’ claim of negligence. Although Carnival did not move to dismiss this claim, it did move to strike parts of the pleading that appeared to improperly assert the doctrine of res ipsa loquitur. Generally, the doctrine of res ipsa loquitur permits a jury or other fact-finder to infer negligence when the circumstances of person’s injury are of a variety that usually does not occur in the absence of negligence. Although maritime law allows for the inference of res ipsa loquitur to be raised in a claim for negligence, the court agreed that is was improper to raise the doctrine in the pleadings, since res ipsa loquitur is not a cause of action but rather an evidentiary principle on which a court may, in its discretion, later instruct the jury. Next, the court turned to the negligent infliction of emotional distress claim. Although Florida law allows a relative bystander to recover for negligent infliction of emotional distress when he witnesses the negligent injury of a loved one and suffers emotional trauma leading to demonstrable physical harm as a result, see Champion v. Gray, 478 So.2d 17 (Fla. 1985), maritime law adheres to the “zone of danger” test. Pursuant to this standard, one may not recover for negligent infliction of emotional distress unless he or she “sustain[s] a physical impact as a result of a defendant’s negligent conduct, or [is] placed in immediate risk of physical harm by that conduct.” Although the father in this case witnessed the injury of his daughter, there were no facts suggesting that he was in an imminent zone of danger. Accordingly, pursuant to the standard set forth in maritime law, the father could not recover for negligent infliction of emotional distress.
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May 21, 2014

Garcia v. Target: When Does a Business have Knowledge of a Dangerous Condition?

by Frankl Kominsky Injury Lawyers

In 2010, the Florida Legislature made sweeping changes to Florida law regarding slip and fall liability for business owners. In that year, the legislature enacted § 768.0755 of the Florida Statutes, which formally requires that a plaintiff in a “slip and fall” case prove that the business where he or she was injured had “knowledge” of the dangerous condition that caused the fall. Since proving knowledge of a dangerous condition is now a formal statutory requirement for establishing slip and fall liability, it is important to understand how a plaintiff would go about making such a showing.

Typically, there are two ways a plaintiff can prove that a business had knowledge or “notice” of the dangerous condition. First, he or she can prove that the business had actual notice by proving an employee had been warned or otherwise informed about the condition. However, this is a difficult avenue to pursue, since an injured plaintiff does not generally have full access to the information necessary to determine which, if any, employees had been warned about a dangerous condition. In addition, employees, even if they can be identified, will generally not be forthcoming with that information. The second and more common method of establishing knowledge of a dangerous condition is known as “constructive notice.” To show “constructive notice,” a plaintiff uses circumstantial evidence related to the nature and duration of the dangerous condition that tends to show that employees who engage in reasonable inspection would have known of the dangerous condition.

In a recent decision from the Southern District of Florida, the court examined the sort of evidence that would be sufficient for showing constructive notice of a dangerous condition. In Garcia v. Target, the court determined whether a plaintiff had provided sufficient evidence to overcome a motion for summary judgment and thus let a jury determine whether there was constructive notice of a dangerous condition. In Garcia, a customer slipped and fell on a wet surface while she was leaving a Target located in Davie, Florida. Target argued that the plaintiff had failed to proffer evidence sufficient to satisfy her burden of proving constructive notice of the wet surface, in part because it had not been raining the day the plaintiff fell and the plaintiff acknowledged she had not seen the dangerous condition prior to slipping nor knew how long it had been there prior to falling.

May 7, 2014

Fourth District Court of Appeal Certifies Conflict with Third District Regarding “Slip and Fall” Liability to Supreme Court of Florida

by Frankl Kominsky Injury Lawyers

Although many would believe, given the frequency of “slip and fall” accidents, that the law in the area should be well settled, Florida law regarding business owners’ “slip and fall” liability has been in considerable flux for the past decade. On February 26, the Fourth District Court of Appeals injected further confusion into the state of the law when it issued its opinion in Pembroke Lakes Mall Ltd. v. McGruder. In McGruder, the Fourth District Court of Appeal held that recent legislation altering the liability of business owners in slip and fall cases should not be applied retroactively to accidents that occurred prior to implementation of the legislation. However, this holding, as the Court in McGruder noted, is in direct conflict with an earlier Third District opinion that held that the legislation should be applied retroactively. Accordingly, the Fourth District certified the question to the Supreme Court of Florida for resolution.

This story of “slip and fall” instability began in 2001, when the Supreme Court of Florida rendered its decision in Owens v. Publix Supermarkets, Inc.. In Owens, the Supreme Court of Florida held that “the existence of a foreign substance on the floor of a business premises that causes a customer to fall and be injured is not a safe condition and the existence of that unsafe condition creates a rebuttable presumption that the business owner did not maintain the premises in a reasonably safe condition.” Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 331 (Fla. 2001). Thus, “once the plaintiff establishes that he or she fell as a result of a transitory foreign substance, a rebuttable presumption of negligence arises.” Id. In response to this holding, the Florida Legislature in 2002 enacted § 768.0710, which eliminated the burden-shifting scheme adopted in Owens and provided that an injured “slip and fall” plaintiff must prove that the business owner “acted negligently by failing to exercise reasonable care” without the benefit of any presumption. However, actual or constructive knowledge of the transitory substance was still not required. This changed in 2010, when the Florida Legislature repealed § 768.0710 and enacted § 768.0755, aptly titled “Premises Liability for Transitory Foreign Substances in a Business Establishment.” The new statute is fundamentally the same as the former, except that the plaintiff needs to now prove that the business establishment had notice, actual or constructive, of the “dangerous condition.”

In McGruder, the plaintiff was injured in a slip and fall at a mall prior to the enactment of § 768.0755 but filed suit after the implementation of the legislation. Accordingly, the key question is whether § 768.0755 should be applied to the case or if the law outlined in § 768.0710 should apply. With respect to retroactive application of statutes, the courts of Florida apply a two-prong test: 1) did the legislature manifest clear intent for the statute to apply retroactively and 2) absent clear intent, is the statute substantive, procedural, or remedial. Generally, absent clear intent, a substantive statute is not to be applied retroactively, but a procedural or remedial statute should be applied retroactively. Although the Third District had concluded in an earlier decision that the statute was not substantive and, thus, should be applied retroactively, the Fourth District held that requiring notice altered the elements of the claim in such a fashion that the new legislation was substantive and should only be applied prospectively.
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