Articles Posted in Slip and Fall

In many personal injury cases, the named defendant will try to get the case dismissed as early as possible in the process. Often, the earliest opportunity for a defendant to try for a dismissal is at the summary judgment stage. Summary judgment is a motion that a defendant can make, claiming that the plaintiff’s case as presented cannot legally result in anything other than a defense verdict.

Wet Floor SignThe legal standard at summary judgment is whether “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” In assessing the evidence during a summary judgment proceeding, the judge should consider all of the evidence in the light most favorable to the non-moving party. In most personal injury cases, it is the defendant that is moving for summary judgment, so the evidence is to be viewed in the light most favorable to the plaintiff.

If a defendant can prove that there is no issue of material fact, the judge will dismiss the plaintiff’s case. It is the defendant’s burden to prove that there is no issue of material fact, rather than the plaintiff’s burden to prove that one exists. A recent Florida slip-and-fall case illustrates how courts apply the summary judgment standard to expert witness testimony.

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parking lotIn an effort to avoid potential litigation, many businesses enact procedures to ensure customer safety. Notwithstanding the ubiquity of such safety procedures, employees do not always follow the rules, which unfortunately leads to injuries to patrons.  When non-compliance with self-imposed safety protocols causes an injury, many people naturally question whether the failure to comply with these procedures amounts to negligence. However, as Florida’s Second District Court of Appeal recently discussed in Wal-Mart Stores, Inc. v. Wittke, a failure to comply with internal practices does not necessarily establish negligence.

Wittke revolves around a December 2009 slip-and-fall accident at a Wal-Mart in Bradenton, Florida. The plaintiff in this action was entering the Wal-Mart on a rainy day when she fell and sustained injuries. Surveillance footage showed that there were two large fans and a yellow warning cone in the area where the fall occurred. Although these measures were taken, the plaintiff asserted that Wal-Mart employees failed to follow certain corporate protocols related to wet floors and were otherwise negligent. The case ultimately proceeded to a trial, after which a jury returned a verdict in favor of Wal-Mart. The plaintiff moved for a new trial, and the trial court judge granted the motion. In this order granting a new trial, the judge noted that “the evidence . . . clearly demonstrated that [the plaintiff’s] injuries were the result of [Wal-Mart’s] failure to follow its own safety policies and procedures.” Wal-Mart appealed the order granting a new trial, and the Second District Court of Appeal agreed that a new trial was not warranted and reversed the trial court’s ruling.

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photo_35115_20141211-300x212Visitors to a Renaissance festival expect to see jousts and sword fights, but they don’t typically expect to be the one dealing with an inadvertent injury at the end of the festivities. However, injuries can happen in the most unexpected places, including as described in a recent decision from the Second District Court of Appeal, the parking lot outside a Renaissance festival. In that decision, Cook v. Bay Area Renaissance Festival of Largo, Inc., the Second District needed to determine whether a trial court erred in granting summary judgment in a trip and fall case.

As noted above, the plaintiff in this case was injured while navigating the parking lot of a local Renaissance festival. Festival volunteers had directed the plaintiff to park in the overflow parking lot. There was an unpaved walkway on a patch of municipality-owned land between the parking lot and the grounds where the festival was being held. Following the festival, the plaintiff was returning to the car when she tripped on an exposed pipe that was on the patch of municipal land. There was nothing obstructing the plaintiff’s view of the pipe. Indeed, the plaintiff’s husband and other festival attendees attempted to warn the plaintiff of the pipe before she tripped. A festival volunteer removed the pipe shortly after the fall. The plaintiff brought a premises liability suit, arguing that the festival was negligent in maintaining the property. The festival moved for summary judgment on her claim against them, arguing that there was not evidence that they had control over the land where the injury occurred. There was conflicting evidence, however, regarding whether festival volunteers had directed her to use the walkway. The trial court granted the festival’s motion for summary judgment, and the plaintiff appealed.

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photo_16480_20100206At 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.

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US Supreme Court Building 2An 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.

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file00016079529In 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.

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