Premises Liability

Appeals Court Rules Summary Judgment Was Not Merited in Florida Negligence Case

Published on: October 20, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Peterson v. Flare Fittings, Inc., a man was apparently struck in the head by a 10-foot balloon that was tethered to a tree while he was attending a sporting event and trade show on a piece of property owned by a major theme park. According to the man, the balloon suddenly descended due to a gust of wind. As a result, the man reportedly became dazed and suffered pain.

After he was injured, the man reported the incident to a member of the event staff, who then brought the balloon down. A theme park manager allegedly told the man that the company would pay for any injuries he sustained due to being struck by the balloon. The manager also supposedly advised the man to seek medical treatment. Later that day, the injured man received x-rays and pain medication at a nearby hospital.

Federal Court Lacks Subject Matter Jurisdiction in Clearwater Slip and Fall Case

Published on: September 25, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Chase v. Hess Retail Operations LLC, a woman was apparently injured when she slipped and fell at a Clearwater gas station. As a result of her harm, the woman filed a negligence lawsuit against the owner of the gas station in a Florida state court. The gas station then removed the case to the Middle District of Florida based on diversity of citizenship because the woman denied that her damages did not exceed $75,000 in her response to certain requests for admissions.

Under federal law, the defendant in a lawsuit may remove a case to federal court for a number of reasons, including diversity jurisdiction. In order to establish diversity, the parties to a lawsuit must hail from different states, and the amount in controversy must be more than $75,000. Since a plaintiff normally selects his or her preferred venue when a lawsuit is filed, the defendant bears the burden of demonstrating that diversity jurisdiction exists. In general, a federal court must construe the facts of a case in which diversity jurisdiction is disputed in favor of remand back to state court.

Summary Judgment Upheld in South Florida Premises Liability Case

Published on: July 16, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In an unpublished opinion, the 11^th Circuit Court of Appeals affirmed an order granting summary judgment to a department store in a premises liability case. According to his complaint, a man supposedly injured his right eye when he walked into a clothing rack that was protruding into an aisle at a South Florida department store in late 2011. The man apparently struck the rack with enough force to fall backwards and hit his head. After his fall, store workers reportedly escorted the man to a customer service area, where a guest incident form was completed. In addition, one of the employees took photos of the clothing rack at issue.

After seeking medical treatment, the man filed a negligence action against the department store in a Florida state court. The case was then removed to federal court based on diversity of citizenship. In his complaint, the man accused the department store of breaching its duty of reasonable care by failing to warn him of the hazard created by the placement of the clothing rack. The man also asserted that the store knew or should have known about the dangerous condition prior to his accident. The man asked the court to award him damages for his resulting vision loss, light sensitivity, headaches, and seizures.

Florida Court Finds Injured Woman’s Request to Amend Her Premises Liability Complaint Must be Reconsidered

Published on: June 25, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Grover v. Karl, a woman was apparently hurt when she fell after a fight broke out at a Florida bar. Following her injury, the woman sued the alleged property owner for negligence. Although the woman initially accused another patron of intentionally attacking her, she later stated her fall occurred when the bar manager was shoved into her during a fight between two other individuals. In response to the woman’s premises liability action, the bar owner filed a motion for summary judgment. Such a motion may be granted when there are no material facts in dispute, and one party to a lawsuit is entitled to judgment as a matter of law.

According to the property owner, he had no notice of the allegedly dangerous condition that injured the woman. The bar owner also argued that the woman’s deposition testimony was inconsistent with her negligence complaint. Prior to a hearing on the summary judgment motion, the woman filed a motion for leave to amend her premises liability complaint. In her proposed complaint, the woman accused the bar manager of intentionally committing battery against her. She also submitted an affidavit in support of her motion, explaining the contradictory testimony.

Court Overturns Summary Judgment in Florida Premises Liability Case

Published on: June 1, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Cook v. Bay Area Renaissance Festival of Largo, Inc., a visitor to a festival apparently parked in an overflow lot after being directed to do so by an event volunteer. While leaving the festival, the woman reportedly tripped on an exposed pipe while walking on a patch of unpaved sidewalk that connected the overflow lot to the festival. At the time, the walkway was owned by the city. As a result of her fall, the woman injured her foot. After her fall, the woman reported the incident to a festival employee, who immediately removed the pipe without seeking prior authorization from the landowner.

Later, the injured woman filed a negligent maintenance lawsuit against the festival operator in a Florida court. During discovery, the woman admitted the pipe was readily visible to pedestrians and that her fellow festival attendees warned her about the pipe immediately prior to her fall. In addition, the woman and her spouse offered conflicting testimony regarding whether they were told by festival workers to use the unpaved walkway.

Appeals Court Overturns Comparative Negligence Ruling in Florida Premises Liability Case Where Plaintiff Was Wearing High Heels

Published on: May 1, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Bongiorno v. Americorp, Inc., a Florida woman filed a premises liability claim against a property owner over the injuries she allegedly sustained when she fell on a slippery bathroom floor in the office building where she was employed. In response to the lawsuit, the property owner denied liability for the woman’s harm and asserted the defense of comparative negligence. Following a bench trial, a judge ruled in favor of the woman but found both parties equally negligent for her injuries. According to the judge, the woman was 50 percent responsible for her slip-and-fall harm because she wore four-inch high heels to work. As a result, the hurt woman’s damages award was significantly reduced.

On appeal to the District Court of Appeal of Florida, Fifth District, the woman argued the lower court judge committed error when he found her negligent for wearing high heels to work because there was no evidence offered to support such a conclusion. The building owner countered that women often fall as a result of wearing four-inch high heels, and the plaintiff assumed the risk when she chose to do so. In addition, the property owner claimed the fact that the woman told her doctor she was wearing such shoes at the time of her injury indicated an individual who was wearing so-called “safer footwear” could avoid falling on the supposedly slippery floor.

Florida’s Fourth District Holds Information Prepared in Anticipation of Litigation is Not Discoverable in Slip and Fall Case

Published on: February 18, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Millard Mall Service, Inc. v. Bolda, a woman filed a lawsuit against the owner of a shopping mall after she sustained an injury in a March 2011 slip and fall accident. In support of her case, the woman requested certain documents from the mall owner. As part of a subpoena, the woman asked the owner for any records related to substantially similar accidents within the preceding three-year-period, mall cleaning and maintenance records from March 2011, and any information related to cleaning or maintenance that was performed by a third party during the same month.

In response to the woman’s discovery requests, the owner of the mall argued the documents were not discoverable because they were prepared in anticipation of litigation. According to the mall owner, the information requested included photos, discussions, and mental impressions regarding incidents that took place on the premises. After reviewing the documents at issue in his chambers, the presiding trial court judge ordered the mall owner to produce the requested information except for the incident report related to the woman’s fall. In response to the trial court’s order, the owner of the mall sought certiorari review before Florida’s Fourth District Court of Appeal.

Appellate Court Holds Negligent Security Plaintiff’s Status is Relevant in Lawsuit Against Florida Apartment Complex

Published on: January 29, 2015 | by Friedman Rodman Frank & Estrada, P.A.

A Florida appeals court has found that a negligent security plaintiff’s status on the land is relevant. In Nicholson v. Stonybrook Apartments, LLC, a woman was shot while attending a party in the common area of an apartment complex. Following the incident, the woman filed a negligence lawsuit against the complex in a Florida court. According to the woman’s complaint, the apartment complex failed to provide adequate security or maintain the premises in a safe manner. In response, the complex countered that the woman was trespassing on the property when she was shot. Because of this, the complex argued that its duties related to the woman’s safety were extremely limited.

Prior to trial, the woman sought to exclude all evidence related to her status on the property at the time of the shooting. In addition, the woman argued that whether she was a trespasser was irrelevant because she did not file a premises liability case against the apartment complex. The trial court ruled that the woman’s status to the land at the time of her injury was important because it had an effect on the duty the apartment complex owed to her. Because of this, the trial court instructed the jurors to determine whether the injured woman was a trespasser or an invitee when she was shot.

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.