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.
February 2025
HM&B Secures Defense Verdict in Major Commercial Trucking Case
Henderson v. American Merchandising Specialists Inc., Case No. 16-2017-CA-005328 (In the Circuit of the 4th Judicial Circuit in and for Duval County, Florida Circuit Civil Division)
Jerry Hamilton, along with attorneys Samantha Loveland and Stefanie Gonzalez, obtained a complete defense verdict in a complex liability dispute involving a commercial truck and passenger vehicle. Following a two-week trial in Jacksonville, Florida, the team successfully defended against multi-million dollar claims stemming from the plaintiff’s alleged eight-year course of medical treatment. The defense team’s thorough preparation, including comprehensive strategy development through the firm’s Trial Committee, proved instrumental in securing this favorable outcome. The firm will pursue recovery of defense costs pursuant to an earlier rejected settlement proposal.
HM&B Secures Summary Judgment on Behalf of a Home Improvement Retailer
John Doe v. Home Improvement Retailer, 59-2023-CA-001617-XXXX-XX (JCC Seminole County Fla. Nov. 2024)
Plaintiff asserted that he tripped and fell over an empty pallet while shopping in the Lawn & Garden Department, resulting in injury to his back and hip. He sued for damages related to these injuries.
Following Plaintiff’s deposition testimony, in which he admitted that the pallet was clearly visible after the incident and that he had walked between two pallets to get the product he wanted, Hamilton, Miller & Birthisel (HM&B) filed a Motion for Summary Judgment. The Motion argued that the pallet was an open and obvious condition, negating any duty on the part of Defendant.
The Court considered the Motion, Plaintiff’s Response to the Motion for Summary Judgment, and oral argument presented by the parties. It concluded that the undisputed facts demonstrated the alleged hazard was an open and obvious condition inherent to the garden center. As such, there was no genuine issue of material fact, and the Court granted Summary Judgment as a matter of law. HM&B's Shaunda Hill and Patricia Concepcion secured this excellent result for the client.
HM&B Secures Summary Judgment in Favor of Construction Client
Dempsey v A&P Consulting Transportation, et. al., Case No. 50-2023-CA-002850 (C.C. Palm Beach County Fla. Nov. 2024)
Plaintiff James Dempsey sued Community Asphalt Corporation (“CAC”) and ACME Barricades LC, alleging he fell off his motorcycle and suffered personal injuries due to an uneven road condition for which Defendants failed to provide adequate warning. CAC, in turn, filed a third-party claim against ACME for breach of contract, alleging that ACME failed to install warning signs and was obligated to indemnify CAC for Mr. Dempsey’s injuries.
ACME moved for summary judgment, arguing that its contractual obligations under the CAC/ACME agreement were limited solely to its own negligence. ACME contended that CAC could not establish that ACME had any responsibility to install the warning signs and, therefore, lacked proof of any negligence on ACME’s part. Without such evidence, ACME argued, it had no obligation to indemnify CAC.
The Court agreed with ACME’s position and dismissed CAC’s claims against ACME. HM&B's Kira Tsiring successfully argued the motion on behalf of ACME.
HM&B Obtains Complete Defense Verdict in Jury Trial
Betty Lapre v. Michael Payne and Joanne Higgins, Case No.: 35-2023-CA-000456-AXXX-XX - Circuit Court (5th J.C. Fla. Oct. 2024)
Plaintiff Betty Lapre alleges that she sustained two cervical disc herniations and a torn rotator cuff in her right shoulder requiring surgery because of a rear-end motor vehicle accident that occurred on June 2, 2022, in Eustis, Florida.
The matter was tried by HM&B's Nicholas DeCapua and Frank DeMeo before a jury in Lake County, Florida, on October 15-17, 2024. At trial, Defendants, Michael Payne (Driver) and Joanne Payne (Owner), admitted negligence in causing the accident. However, Defendants disputed that Plaintiff was injured in the accident and, alternatively, argued that Plaintiff sustained, at most, temporary, non-permanent soft tissue injuries to her neck and back.
Plaintiff, in her case in chief, introduced the testimony of her treating spine surgeon, treating shoulder surgeon, and treating radiologist. Her treating shoulder surgeon testified that Plaintiff sustained a torn rotator cuff in her right shoulder, requiring surgical intervention, as a result of the accident. Her treating spine surgeon testified that Plaintiff sustained multiple cervical disc herniations, requiring numerous epidural injections, as a result of the accident. Plaintiff’s treating radiologist testified that he observed a torn rotator cuff on Plaintiff’s right shoulder MRI and disc herniations at C4-5 and C5-6 on Plaintiff’s cervical spine MRI. Plaintiff also introduced evidence that she would require cervical spine surgery in the future. Regarding Plaintiff’s claim for economic damages, she presented evidence of $95,000.00 in past medical expenses and $285,000.00 in future medical expenses.
Defendants, in their case in chief, introduced the testimony of Defendant Michael Payne, spine surgery expert Dr. Reginald Tall and shoulder surgery expert Dr. Jeffrey Rosen.
At closing, he Plaintiff asked the jury to award her economic damages of $380,000.00, in addition to $500,000.00 in non-economic damages, for a total of $880,000.00. Defendants asked the jury to return a defense verdict on causation or, alternatively, to award Plaintiff only her past medical expenses for treatment from June 2, 2022, through August 14, 2022.
The jury deliberated for two hours before returning a defense verdict.
HM&B Prevails for Home Improvement Giant in Slip-and-Fall Case: Court Emphasizes Need for Evidence of Knowledge
John Doe v. Home Improvement Retailer, (N.D. Fla. Oct. 2024)
HM&B recently secured a favorable summary judgment for a major home improvement retailer in a significant premises liability case. The plaintiff, a sales representative for a product supplier, alleged that he slipped and fell on oil or gas while pushing a heavy cart of lumber at one of our client’s stores. The court’s decision hinged on the lack of evidence that our client had actual or constructive knowledge of the alleged dangerous condition, a crucial element under Florida Statute § 768.0755.
The court rejected the plaintiff’s argument that employees in the vicinity should have known about the condition, emphasizing that mere presence is insufficient to establish constructive knowledge. Additionally, a single prior slip-and-fall incident in a different area of the store involving a different substance was deemed insufficient to demonstrate that the condition occurred with regularity. This ruling underscores the importance of challenging claims that lack concrete evidence of a property owner’s knowledge of dangerous conditions.
Our team’s thorough defense strategy and deep understanding of premises liability law were instrumental in achieving this favorable outcome for our client. This decision serves as a valuable precedent, reinforcing the legal standards for premises liability cases and highlighting the effectiveness of our firm’s approach in defending against such claims. The successful outcome in this case was achieved through the efforts of attorneys Schuyler Smith, Patricia Concepcion, and Michael Dono.
Mid-Trial Expert Opinion Change Leads to Reversal in Slip-and-Fall Case
Seven Rests., LLC v. Tulecki, 391 So. 3d 949 (Fla. 4th DCA 2024)
The Fourth District addressed a slip-and-fall case involving a Burger King franchise owned by Seven Restaurants, LLC. Richard L. Tulecki, Jr., the plaintiff, suffered injuries after a slip and fall in the restaurant, leading him to sue the franchise. During the trial, Tulecki introduced expert testimony about his injuries, specifically a perforated colon allegedly caused by the forceful use of an enema due to pain medication he was taking for injuries sustained from the fall.
The critical legal issue was whether the trial court had abused its discretion by allowing the plaintiff to present new, mid-trial expert opinions on the cause of the colon perforation. At first, Tulecki’s expert witness had only said it was a possibility the perforation resulted from the enema use. However, during the trial, the expert changed his testimony, asserting with greater certainty that the perforation was caused by the enema, which was linked to Tulecki’s use of medication for his injuries.
Seven Restaurants, LLC challenged this mid-trial change in expert testimony, arguing that it significantly changed the expert’s level of certainty and deprived the defendant of an opportunity to adequately address the new opinion. The defendant contended this shift in testimony was prejudicial, as they had little to no ability to counter the expert’s new conclusion during the trial.
The appellate court agreed with Seven Restaurants, LLC, ruling that the trial court abused its discretion by letting the new expert testimony be introduced mid-trial without giving the defense adequate time to respond. The court found that the change in the expert’s opinion was substantial, as it moved from a possibility to a near certainty, which fundamentally altered the nature of the claim. The court held that this late-stage shift unfairly prejudiced the defense and affected the fairness of the trial.
As a result, the appellate court reversed the trial court’s ruling and remanded the case for a new trial, specifically on the issue of damages. The decision underscores the importance of consistent expert testimony throughout a trial and the need to ensure both parties have a fair
Video Evidence Defeats Speed Bump Trip and Fall Claim Against Home Depot
Harvey-Valdes v. Home Depot U.S.A., Inc., No. 8:22-cv-2572-JLB-UAM, 2024 WL 730477 (M.D. Fla. Aug. 5, 2024)
In a premises liability case, the U.S. District Court for the Middle District of Florida granted summary judgment to Home Depot in a trip-and-fall lawsuit. Jennifer Lynn Harvey-Valdes claimed she tripped and fell due to an unmarked speed bump in Home Depot’s parking lot, alleging the speed bump was dangerous because missing paint caused it to blend in with the pavement.
While the plaintiff testified she fell “smack dab in the middle” of an unpainted part of the speed bump, Home Depot’s surveillance video directly contradicted her account. The video showed that Harvey-Valdes actually fell on one of the brightly painted yellow ends of the speed bump, not the unpainted middle section.
The court found that where video evidence “squarely contradicts” a plaintiff's testimony, the court should not adopt the plaintiff’s version of events in ruling on summary judgment. Because the video showed the plaintiff fell on a painted part of the speed bump that was open and obvious, Home Depot had neither breached its duty to warn nor its duty to maintain the premises in a reasonably safe condition. The court emphasized that under Florida law, certain conditions are so obvious and not inherently dangerous that they cannot, as a matter of law, constitute a dangerous condition giving rise to liability.
This case highlights how video evidence can be decisive in premises liability cases by definitively establishing the actual circumstances of an accident, even when they differ from a plaintiff’s recollection of events.
Court Finds Uneven Sidewalk Joint Not Dangerous as Matter of Law
Tanner v. Garden Cmtys., LLC, No. 8:23-cv-2019-WFJ-TGW, 2024 WL 3920692 (M.D. Fla. Aug. 22, 2024)
A federal court granted summary judgment to an apartment complex owner in a premises liability case involving a UPS driver who tripped over an uneven sidewalk joint. The driver, who was carrying three small packages at the time, claimed he suddenly “woke up on the ground” after tripping on the raised sidewalk section, sustaining injuries to his back, knees, shoulder and hand.
The court’s decision turned on two key principles of Florida premises liability law:
A property owner’s duty to warn is discharged when a potential danger is open and obvious; and
Some conditions, even if obvious, are “so common and ordinarily innocuous” that they do not constitute dangerous conditions as a matter of law.
Applying these principles, the court found that the uneven sidewalk joint was both obvious and not inherently dangerous. The court noted that the plaintiff’s view was not obscured by the packages he was carrying or by weather conditions. Drawing parallels to other Florida cases involving uneven surfaces, the court determined that slight variations in sidewalk elevation are so commonplace they are not dangerous conditions requiring special precautions or warnings.
This case reinforces that Florida law does not impose liability on property owners for common, minor variations in walking surfaces, even when those variations cause injury.
Court Declines to Extend Property Owner’s Duty to Adjacent Property Where Shooting Occurred
Bing v. Alachua Cnty., 392 So. 3d 266 (Fla. 1st DCA 2024)
The First District affirmed dismissal of a wrongful death claim against Alachua Countyafter a woman was fatally struck by a stray bullet fired from the county’s parking lot while she was walking to her car across the street. The victim had gone to a “Thirsty Thursday” event near the county lot.
The plaintiff alleged the county was negligent by failing to provide adequate lighting and security in its parking lot, which allowed the shooter to “lie in ambush.” The plaintiff argued this created a foreseeable zone of risk to people walking next to the property.
The court rejected these arguments, holding that a property owner’s duty does not extend to injuries occurring on adjacent property unless the owner:
Controls the instrumentality of harm (the gun);
Controls the premises where the tort occurred (where victim was shot), or
Has a special relationship with the tortfeasor (the shooter).
Finding none of these elements present, the court concluded that while the shooting may have been “precipitated by an event on [the county’s] premises,” the tort occurred on property not owned or controlled by the county. The court declined to extend premises liability “too far” by imposing a duty only because a shooter happened to be on the defendant’s property when firing across property lines.
Court Denies Post-Removal Amendment to Add “Placeholder” Defendant’s Replacement
Broton v. Walmart, Inc., No. 24-cv-60139-DAMIAN/STRAUSS, 2024 WL 3935688 (S.D. Fla. Aug. 26, 2024)
A federal court denied a plaintiff’s attempt to amend his premises liability complaint to add a non-diverse defendant after the case was removed to federal court. The plaintiff had initially sued Walmart and a store manager (Gomez) in state court for injuries sustained when merchandise fell on his foot. The plaintiff, however, admitted he named Gomez only as a “placeholder” until he could identify the actual employee involved through discovery.
The court’s analysis focused on whether allowing an amendment would destroy diversity jurisdiction. First, the court found the amendment’s purpose was to defeat federal jurisdiction, noting that the plaintiff originally sued a known incorrect “placeholder” defendant and only sought to identify the correct employee after the placeholder was dismissed. Second, regarding timeliness, the plaintiff waited 10 months after filing suit to begin discovery to identify the responsible employee, and only did so after the placeholder defendant was dismissed for failure to serve. Third, on the question of prejudice, the court found the plaintiff would not be significantly injured by denial since Florida’s statute of limitations had not run on any claim against the employee. Finally, considering other equities, the court noted that defendants have a statutory right to a federal forum in diversity cases.
The decision illustrates how courts carefully scrutinize post-removal attempts to add non-diverse defendants, particularly where the plaintiff’s initial litigation conduct suggests forum manipulation rather than genuine pursuit of claims against the proper parties. The court distinguished this case from others where plaintiffs mistakenly sued the wrong party, emphasizing that here, the plaintiff knowingly used a placeholder defendant and delayed seeking discovery to identify the proper party until after removal became possible.
Court Grants Summary Judgment Where Plaintiff Failed to Show Notice of Dangerous Condition
Ortiz v. Wal-Mart Stores E., LP, No. 8:23-cv-1628-CEH-UAM, 2024 WL 4111242 (M.D. Fla. Sept. 6, 2024)
A federal court granted summary judgment to Walmart in a slip-and-fall case where neither the plaintiff nor her daughter could identify what caused the fall or how long the alleged hazard had been present. The plaintiff testified she never saw what she slipped on, while her daughter stated only that she saw a clear, transparent liquid on the floor after the fall occurred.
A premises liability plaintiff must prove the business had actual or constructive knowledge of the dangerous condition. The court found no evidence of actual notice since nothing indicated Walmart’s employees knew about or created the condition. As for constructive notice, the plaintiff could not show how long the substance had been present. The court noted that the daughter’s testimony about seeing a clear liquid, free of dirt or streaks, was not enough to create an issue of fact about constructive notice.
The court emphasized that mere evidence an accident occurred is not enough— negligence cannot be inferred from the mere happening of an accident alone. Additionally, Walmart provided evidence that no similar incidents had occurred in the prior six months and that employees were trained to regularly inspect the floors.
The case reinforces that Florida premises liability plaintiffs face a significant burden in proving notice, particularly where there is no evidence about the duration of the hazardous condition. Without this evidence, summary judgment is appropriate even when viewing the facts in the light most favorable to the plaintiff.
ABOUT THE FIRM
Hamilton Miller & Birthisel, LLP is a boutique trial law firm specializing in the areas wrongful death and personal injury defense, premises liability, insurance defense and coverage, maritime claims, professional and E&O claims, liability and trucking and transportation claims and commercial litigation. The firm has over 100 attorneys located in all major cities in Florida, New York, Virginia and the Caribbean. For more information about our practice areas and attorneys, please visit hamiltonmillerlaw.com.
%20(1).png?upscale=true&width=1050&upscale=true&name=HMB%20Blog%20Post%20News%20template%20(525%20x%20132%20px)%20(1).png)
