The following cases are recent court decisions that may be of interest to you. Please contact us if you have a question regarding any of the cases mentioned or to request a copy of the complete written court opinion.
Summer 2024
Complete Dismissal Obtained After HM&B Proves Plaintiff Committed Fraud Upon the Court
Doe v. Big Box Retailer, Circuit Court in and for Orange County, Florida
This case represents another well-earned win for HM&B. Plaintiff alleged that he was injured when he slipped on water he claimed the store should have known about. HM&B proved to the Court that Plaintiff had made numerous misrepresentations about the incident and his current physical limitations. The Court agreed that Plaintiff misstated information to exaggerate his claim, which would have misled the jury if not for the comprehensive discovery conducted by HM&B. Accordingly, the Court granted dismissal of the entire claim. Congratulations to our partner Stephanie Vo for her skillful argument of the case!
HM&B Obtains Order Granting Summary Judgment in Case Involving Fall on Wet Pool Deck
Melo v. Valdez et. al., 2023-008408-CA-01 (11th Cir. C. July 11, 2024)
Plaintiff alleged injury from a fall on a wet pool deck while performing a dance routine at Defendants’ home. The claim asserted that Defendants failed to maintain their premises in a reasonably safe condition.
The Court concluded that the undisputed facts demonstrated: (1) The alleged hazard was an open and obvious condition inherent to the area surrounding a swimming pool, and (2) Defendants did not have a reasonable opportunity to discover and address any water on the pool deck before Plaintiff's fall.
HM&B Obtains Final Summary Judgment for a Big Box Retailer
Doe v. Big Box Retailer, Circuit Court of the Nineteenth Judicial Circuit in and for Indian River County
Plaintiff alleged she was injured after slipping on an orange pocket pad, used to absorb moisture, located on the floor of the meat department. Plaintiff relied heavily on a former employee's testimony that spills and slip and falls occurred several times a week in the grocery and other sections of the store. However, the Court found that this testimony was insufficient to establish that the specific hazard (a ruptured pocket pad) occurred with any regularity in the specific area (the meat department) to impute constructive notice on the store. The summary judgment motion was successfully argued by Stephanie H. Vo before the Honorable Cynthia Cox.
HM&B Defeats a Motion for Summary Judgment on a Contractual Duty to Defend
Doe v. General Contractor and Its Subcontractors, Circuit Court, Osceola County
A homeowners association (plaintiff) sued a general contractor and several subcontractors, including our client, for negligent construction and other statutory claims. The general contractor claimed a duty to defend and indemnify against its subcontractors, including our client, and moved for summary judgment on this claim after discovery.
HM&B, representing its subcontractor client, argued that:
The indemnity provision was unenforceable as it lacked the required monetary limitation for indemnity under Section 725.06, Florida Statutes.
The defense provision, being in the same sentence as the indemnity provision, should fail along with it.
The court agreed with HM&B's arguments, ruling that:
The indemnity provision was unenforceable due to non-compliance with Section 725.06.
The duty to defend and indemnify, being in a single sentence, were not severable. Thus, the duty to defend was also unenforceable.
Consequently, the court denied the general contractor's motion for summary judgment against our subcontractor client. The successful opposition was prepared by Kira Tsiring and Jackeline Rodriguez.
HM&B Secures Summary Judgment on False Arrest, Malicious Prosecution and Negligent Hiring, Retention and Training Claims for Big Box Retailer
Doe v. Big Box Retailer. Circuit Court of the Eleventh Judicial Circuit in and For Miami-Dade County, Florida
Plaintiff alleged false arrest while shopping at a big box retailer in Miami, Florida. He claimed physical injuries from extended confinement in a police car following detention by store employees. Plaintiff sought over $200,000 in damages, citing cervical injuries requiring surgery.
The big box retailer moved for summary judgment. The Court found that:
Plaintiff passed all points of sale with unpaid merchandise.
Plaintiff voluntarily signed a statement admitting intent to deprive the store of merchandise.
Audra Bryant of HM&B secured a complete summary judgment for the retailer. Due to an expired Proposal for Settlement, attorneys’ fees and costs will be sought.
Middle District of Florida Grants Summary Judgment for CVS in Slip-and-Fall Case Due to Lack of Notice
Alice Antale v. CVS, L.L.C., 2024 U.S. Dist. LEXIS 67993 (M.D. Fla. Apr. 15, 2024)
The district court granted summary judgment for CVS in a slip-and-fall case. The plaintiff, Andrew Antale, alleged that he slipped and fell on water in the men’s restroom at a CVS store, sustaining a fractured femur. Antale claimed that CVS was negligent in inspecting and maintaining its premises.
To prevail on a premises liability claim under Florida law, a plaintiff must show the defendant had actual or constructive knowledge of the dangerous condition. Antale triedto show actual notice by arguing that a CVS employee caused or overlooked the hazardous condition. However, the court found this argument to be based on unsupported inferences, as there was no evidence that the employee was the last person to use the restroom before Antale.
As for constructive notice, the court determined that the undisputed evidence showed that the floor was wet for, at most, 10 minutes before Antale’s fall, which is not enough to establish constructive notice under Florida case law. The court also rejected Antale’s argument that the hazardous condition was foreseeable to CVS due to the bathroom’s layout, finding that Antale presented no evidence to support this contention.
The court emphasized that a plaintiff needs evidence to support a reasonable inference that the defendant had constructive notice of the hazardous condition and that mere possibilities and assumptions are not enough. As Antale did not present evidence showing CVS had actual or constructive notice of the wet floor, the court granted summary judgment for CVS.
Florida Third District Court of Appeal Affirms Summary Judgment for Apartment Complex in Negligent Security Case
In Brownlee v. 22nd Ave. Apts., LLC, the appellate court affirmed a trial court’s order granting summary judgment for an apartment complex and its property manager in a negligent security case. The plaintiff, Adeon Brownlee, a non resident, was shot by an unknown assailant in a secluded area along the property’s north perimeter. Brownlee filed a premises liability action against the owner and property manager, alleging that they breached their duty to keep their tenants, invitees, and the public safe by failing to provide adequate security measures and staff.
The appellate court found that Brownlee failed to demonstrate a genuine dispute of material fact regarding whether the assailant was off the premises at the time of the incident and whether the defendants created a dangerous condition that would expand their zone of foreseeable risk outside the property limits. The record evidence showed that the assailant was positioned outside the property on a public street not controlled by the defendants. Generally, a landowner owes no duty of care to invitees for events occurring only off the landowner’s premises, unless the landowner’s conduct creates a foreseeable zone of risk extending beyond the property’s boundaries.
Additionally, Brownlee presented no evidence to illustrate that the defendants failed to have adequate security measures in place to safeguard against or prevent the shooting. The court noted that armed security guards were actively patrolling the property, and operable security cameras were positioned throughout the complex.
Lastly, the court found that the uncontroverted facts and record evidence established that Brownlee was the victim of a personal, targeted attack by an unknown third-party assailant, which was not foreseeable to the defendants. Under Florida law, a landowner owes no duty to protect an invitee from the willful criminal act of another unless that conduct could have been foreseen or anticipated.
Florida Fifth District Court of Appeal Upholds Summary Judgment for Walmart in Negligence Case Involving Fleeing Shoplifters
Johnson v. Wal-Mart Stores East, LP, 2024 Fla. App. LEXIS 2824 (Fla. Dist. Ct. App. Apr. 12, 2024)
The appellate court affirmed a trial court’s entry of summary judgment for Walmart in a negligence case. The plaintiff, Frederick Johnson, alleged that Walmart employees were negligent when they confronted and pursued shoplifters, causing the shoplifters to flee and injure Johnson.
The central issue was whether Walmart’s conduct created a reasonably foreseeable “zone of risk” that posed a general threat of harm to others. The trial court concluded that, based on the undisputed summary judgment evidence, Walmart did not create a reasonably foreseeable zone of risk by its employees’ actions, and Johnson could not rely on Walmart’s policies and procedures as evidence to establish reasonable foreseeability.
The appellate court agreed with the trial court’s assessment, finding that Walmart’s conduct before and after the shoplifter fled did not create a reasonably foreseeable zone of risk. The court rejected Johnson’s argument that the employee’s action of placing her hand on the cart, asking for a correct receipt, or picking up an item inside the cart created a foreseeable zone of risk, as these actions occurred before the shoplifter displayed any aggression or indication he would flee.
The court also found that Walmart’s conduct after the shoplifter fled, such as an employee calling for police and other employees walking onto the sidewalk to record the getaway car’s license plate number, did not foreseeably enlarge the zone of risk. The court emphasized that the zone of risk was already present when the shoplifter became violent, and calling for police at that point did not foreseeably enlarge it.
As for Walmart’s policies and procedures, the court concluded that internal policies alone do not establish that the conduct in question creates a reasonably foreseeable zone of risk, absent evidence that the policies represent only what is reasonably foreseeable and not what is merely possible.
Southern District of Florida Grants Summary Judgment for Costco in Slip-and-Fall Case Due to Lack of Notice
Suarez v. Costco Wholesale Corp., 2024 U.S. Dist. LEXIS 99045 (S.D. Fla. June 3, 2024)
The district court granted summary judgment for Costco in a slip-and-fall case. The plaintiff, Isabel Maria Suarez, alleged that she slipped and fell on soap or some other similar substance while visiting a Costco store, sustaining injuries. Suarez asserted a single claim of negligence against Costco.
Under Florida law, a plaintiff in a premises liability case involving a transitory foreign substance must prove that the defendant had actual or constructive knowledge of the dangerous condition. Actual knowledge exists when the defendant’s employees or agents know of or create the dangerous condition. Constructive knowledge may be proven by circumstantial evidence showing that the dangerous condition existed for such a length of time that the defendant should have known of the condition in the exercise of ordinary care, or that the condition occurred with regularity and was therefore foreseeable.
The court found that the record was devoid of any evidence showing that Costco created the condition on the floor or knew about the condition before Suarez’s incident. Suarez testified that she had no personal knowledge or evidence supporting when the soap collected on the floor before she fell.
As for constructive notice, the court determined that the record lacked any evidence establishing either that the dangerous condition existed for any length of time or that the condition occurred with any regularity. Suarez’s testimony, which reflected a complete lack of knowledge of how long the soap was present on the floor, was not enough to show that Costco had constructive notice of the hazardous condition.
The court emphasized that a plaintiff’s right to recover in a slip-and-fall case requires more than simply showing that the surface on which the plaintiff fell was slick, smooth, or wet. Courts look to the length of time the condition existed before the accident occurred when considering whether there is an issue of fact for submission to a jury in transitory foreign substance cases. Without additional facts to create a permissible inference about the time the foreign substance had been on the floor, a finding of negligence would be sheer speculation.
Southern District of Florida Grants Summary Judgment for Icynene in Products Liability Case Due to Lack of Causation Evidence
Vazquez v. Graco, Inc., 2024 U.S. Dist. LEXIS 79631 (S.D. Fla. Apr. 30, 2024)
The district court granted summary judgment for Icynene Corp. in a products liability case. The plaintiff, Luis Vazquez, alleged that he suffered injuries from a malfunctioning spray gun while working as a foam sprayman. Vazquez brought a negligence claim against Icynene, the alleged manufacturer and distributor of the spray foam insulation used in the spray gun, under a products liability theory.
To prove a products liability claim sounding in negligence, a plaintiff must show (1) that the defendant owed a duty of care toward the plaintiff, (2) that the defendant breached that duty, (3) that the breach was the proximate cause of the plaintiff’s injury, and (4) that the product was defective or unreasonably dangerous. In its motion for summary judgment, Icynene argued that Vazquez failed to proffer enough evidence of causation.
The court agreed with Icynene, finding that Vazquez failed to carry his burden of proving by a preponderance of the evidence that his injury was proximately caused by Icynene’s alleged breach of its duty to produce a reasonably safe product. Vazquez admitted that he was unable to determine the specific spray foam insulation he used at the time of his injuries and proffered no evidence, such as fact or expert testimony, affidavits, or admissions, to support the causation element of his claim.
In his opposition to Icynene’s motion, Vazquez dedicated only two sentences to argue that summary judgment should be denied, generally referencing a purported distinction between his case and the case authority relied on by Icynene. The court found that this generalization, unsupported by thorough legal argument or adequate evidence, was not enough to survive summary judgment.
The court emphasized that it shall not look beyond the materials before it on summary judgment, and based on the record in this case, it concluded there was an absence of evidence to support Vazquez’s negligence claim against Icynene. Accordingly, the court granted Icynene’s motion for summary judgment.
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