FOR IMMEDIATE RELEASE
August 25, 2018
Contact:Eric W. Boyer, Esq.
305.670.1101 Ext. 1023
COURT REJECTS NEGLIGENT MODE OF OPERATION ARGUMENT AND HOLDS
THAT PLAINTIFF FAILED TO ESTABLISH CONSTRUCTIVE KNOWLEDGE
Premises Liability / Negligence
FORT LAUDERDALE ― Quintairos, Prieto, Wood & Boyer, P.A., trial attorneys David M. Tarlow and Matthew McElligott defended their client, a retail establishment, against claims of negligence alleged by a shopper, the Plaintiff, a then 67-year old woman, who fell at the store fracturing her right hip.
When the store employees initially responded to the area, Plaintiff stated that she had slipped and fallen on dried pasta on the floor. When the employees looked around the area and informed Plaintiff they saw nothing on the floor, Plaintiff changed her story and stated that she had tripped over another customer. This “other customer” was never identified or located. Plaintiff was transported by Fire Rescue to the hospital. Plaintiff was admitted to the hospital for eight days, and underwent an open-reduction internal-fixation procedure on her right hip. Plaintiff thereafter was treated with physical therapy. Plaintiff’s past medical damages exceeded $170,000.00, and according to her Life Care Plan, she claimed an additional $340,000.00 in future medical damages. Plaintiff’s husband had filed a claim for Loss of Consortium but passed away during the pendency of the litigation, and his claim was dismissed.
The hospital records reflected that Plaintiff had given the same conflicting statements about how the accident happened to the hospital staff: some records stated that Plaintiff slipped and fell on pasta and others stated that Plaintiff had tripped over another customer. In deposition, Plaintiff testified that she slipped and fell on some unidentified item on the floor and denied ever having said that she tripped over another customer.
We initially filed a Motion to Dismiss for Fraud based on the statements made to the retailer’s employees and the hospital about Plaintiff tripping over another customer, but the motion was denied since the retailer could not prove by clear and convincing evidence that the Plaintiff was intentionally engaged in a scheme to defraud, as opposed to simply misremembering the incident (hospital records also indicated that Plaintiff had early onset Alzheimer’s).
During discovery, the Court ordered the retailer produce a complete claims run for all slip/trip and fall incidents that had occurred in the store in the three year period leading to Plaintiff’s incident. The defense produced evidence of 76 prior incidents, three of which had occurred in the same aisle in which Plaintiff fell.
The defense moved for Summary Judgment arguing that even if the Court accepted Plaintiff’s version of events, i.e. that she slipped and fell on dried pasta, Plaintiff had failed to establish constructive knowledge as required under Fla. Stat. 768.0755. Plaintiff argued that since the store could not prove the last time the area was inspected, then it was a question of fact on whether the retailer negligently maintained the store. The defense replied that Plaintiff’s argument attempted to resurrect the “negligent mode of operation” theory of liability for foreign transitory substances, and that pursuant to Fla. Stat. 768.0755, this theory of liability had been superseded. The Court agreed and found that the 76 prior incidents were not sufficiently similar to Plaintiff’s allegations to establish constructive knowledge under the “occurs with such regularity so as to be foreseeable” prong of Fla. Stat. 768.0755. Two incidents that occurred in the same aisle were on produce, and the third was on a liquid substance. As such, the Court granted the defense’s Motion for Summary Judgment.
The defense had filed a Proposal for Settlement early in litigation, and after moving for Fees and Costs, Plaintiff agreed to waive her right to appeal for defense’s forgoing fees and costs.
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Quintairos, Prieto, Wood & Boyer, P.A., is the largest minority and women owned law firm in the nation with more than 370 lawyers serving clients from 21 offices in the United States and abroad across a spectrum of industries in over 40 areas of practice. Our lawyers provide representation in litigation, business, real estate and governmental law.
David M. Tarlow is the managing partner of the Fort Lauderdale office. He is an expert in civil litigation and is Board Certified in Civil Trial Law by the Florida Bar Board of Legal Education and Specialization. His practice includes all aspects of insurance and general liability defense, product liability, wrongful death, personal injury defense, premise liability, automobile liability, negligent security, legal malpractice, and insurance coverage disputes and bad faith litigation. Tarlow received his law degree from the University of Miami School of Law and is admitted to practice law in Florida and in the United States District Courts for the Southern and Middle Districts of Florida, Eleventh Circuit Court of Appeals, and the United States Supreme Court.
Matthew McElligott is a partner in the Fort Lauderdale office focusing on insurance and general liability defense, including personal injury, premises liability, product liability defense, wrongful death, automobile liability, negligent security, legal malpractice defense, insurance coverage disputes and bad faith litigation. McElligott received his Juris Doctor, with honors, from the University of South Carolina and is admitted to practice law in Florida.