FOR IMMEDIATE RELEASE

April 13, 2018

Contact:Eric W. Boyer, Esq.
Managing Partner
305.670.1101 Ext. 1023
Email: eboyer@qpwblaw.com

 

FINAL SUMMARY JUDGMENT ACHIEVED FOR WALGREENS


David M. Perez
David M. Perez
David M. Tarlow
David M. Tarlow

MIAMI ― Quintairos, Prieto, Wood & Boyer, P.A., (QPWB) partners David M. Perez (Miami) and David M. Tarlow (Fort Lauderdale) obtained a final summary judgment in the defense of a claim for negligence against Walgreens.

The plaintiff alleged to have tripped on a shopping basket on the floor of the Walgreens store.  She alleged Walgreens was negligent because it failed to maintain its premises in a reasonably safe condition by allowing the shopping basket to remain on the floor for a long period of time.  She alleged to have sustained an injury to her right shoulder requiring surgery, permanent aggravation of pre-existing arthritis in her knees, physical and mental pain and suffering, loss of earnings and loss of future earning capacity.  In addition, she alleged to have incurred medical bills in excess of $300,000.00 as all of the medical care and treatment she received for the injuries allegedly sustained in the incident was provided to her under Letters of Protection.

At deposition, the plaintiff testified she was standing in line to pay for her items for approximately 15 to 20 minutes when a second register was being opened.  As she moved toward the second register being opened, she saw the shopping basket on the floor.  Instead of picking up the shopping basket or walking around it, she made the conscious decision to attempt to “step” or “jump” over the shopping basket.  As she was in the process of stepping or jumping over the shopping basket, she realized her other foot was stuck underneath a shelf below the first register causing her to fall.  At no point did either of her feet ever touch the shopping basket on the floor.

After taking the deposition of the plaintiff, Walgreens sought summary judgment on the plaintiff’s claim for negligence.

 

In Florida, a business owner owes two duties to an invitee: (1) to give timely notice of latent or concealed perils which are known or should be known to the owner, but which are not known to the invitee, and (2) to use ordinary care in keeping the premises in a reasonably safe condition.

 

In addition, under Florida law, an owner or possessor of land is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party.  The owner or possessor of land’s knowledge of a danger must be superior to that of a business invitee to create a duty to warn.  There is no duty to warn against an open and obvious condition not inherently dangerous.  There are two obvious conditions that will not breach a duty to maintain a premises in a reasonably safe condition: (1) where the condition is “so open and obvious” and not inherently dangerous or (2) where the condition may be dangerous, but is “so open and obvious” that an invitee may be reasonably expected to discover them to protect himself.

 

After reviewing memoranda from both parties and extensive oral argument, the Court found as follows:

 

Walgreens could not and did not breach its duty to give timely notice of a latent or concealed peril, which was known or should have been known to it but which was not known to the plaintiff, because the shopping basket was not a latent or concealed condition and the plaintiff’s knowledge of the shopping basket on the floor was superior to that of Walgreens.  The plaintiff observed the shopping basket on the floor and was only injured after failing to use due care for her own safety by attempting to “step” or “jump” over the shopping basket.  It is neither probable nor foreseeable that someone seeing a shopping basket on the floor would fail to avoid the open and obvious condition.  A reasonable person would have easily avoided the basket rather than attempting to “step” or “jump” over it, preventing the incident.  Walgreens had no greater knowledge of the shopping basket, which was not a latent or concealed danger but rather a patent and an open and obvious condition, than Plaintiff and therefore had no duty to warn Plaintiff of its presence.

 

In addition, Walgreens did not fail to maintain its premises in a reasonably safe condition.  The plaintiff testified that she saw the shopping basket on the floor prior to the occurrence of the incident at issue; thus it was “so open and obvious.”  A shopping basket used by a consumer to hold goods is not a foreign substance but a legitimate aspect of a retail-business economy; thus a shopping basket is not inherently dangerous.  If a shopping basket was inherently dangerous, it was “so open and obvious” that Walgreens could reasonably expect the plaintiff to discover it, which she did, and to protect herself from its purported danger.  Thus, Walgreens did not breach its duty to exercise ordinary care to maintain its premises in a reasonably safe condition.

 

For the foregoing reasons, the Court found that no genuine issues of material fact remained to be determined and granted Walgreens’ Motion for Final Summary Judgment.

 

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David M. Perez practices in the areas of general liability, personal injury and insurance defense, professional malpractice, automobile negligence, employment law, preparation and review of commercial leases, and administrative law.

 

David M. Tarlow is the managing partner of the Fort Lauderdale office.  He practices in the areas of general liability defense, including personal injury defense, premises liability, product liability defense, wrongful death, automobile liability, negligent security, legal malpractice defense, insurance coverage disputes and bad faith litigation.

 

Quintairos, Prieto, Wood & Boyer, P.A., is the largest minority and women owned law firm in the nation with more than 360 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.