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Filing # 123688569 E-Filed 03/24/2021 02:13:27 PM
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CIVIL DIVISION
LUERETTA SMITH,
Plaintiff, CASE NO. CACE-19-021319 (13)
VS.
WINN-DIXIE STORES, INC.,
Defendant.
DEFENDANT WINN-DIXIE STORES, INC.'S SECOND SUPPLEM.
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S
MOTION FOR SUMMARY FINAL JUDGMENT
Defendant, WINN-DIXIE STORES, INC. (hereinafter “WINN-DIXIE”), by and through
its undersigned counsel and pursuant to Florida Rules of Civil Procedure 1.510(c), and files this
Second Supplemental Memorandum of Law in Support of their Motion for Summary Final
Judgment as to all claims against WINN-DIXIE as set forth in the Complaint of the Plaintiff,
LUERETTA SMITH, on the grounds that the pleadings, depositions, and answers to
interrogatories on file affirmatively and conclusively demonstrate that there is no genuine issue
of material fact, and Defendant is entitled to the entry of a final judgment as a matter of law, and
as grounds therefore would show this Court as follows:
1. Defendant adopts and reasserts their Motion for Summary Final Judgment filed
October 20, 2020 and Supplemental Memorandum of Law filed on January 27, 2021, as if fully
set forth herein.
2. Defendant files this Supplement since the hearing date for the Motion for
Summary Final Judgment will commence after the effective date of the amended Florida Rule of
Civil Procedure 1.510.
1025563\307663292.v1
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 03/24/2021 02:13:27 PM.****CASE NO. CACE-19-021319 (13)
3. Recently, the Florida Supreme Court amended Florida Rule of Civil Procedure
1.510 to be consistent with the Federal Rule 56. See Jn re: Amendments to Florida Rule of Civil
Procedure 1.510, No. SC20-1490, 2020 Fla. LEXIS 2148 (Fla. Dec. 31, 2020).
4. Specifically, the amendatory language provides:
The summary judgment standard provided for in this rule shall be
construed and applied in accordance with the federal summary
judgment standard articulated in Ce/otex Corp. v. Catrett, 477 U.S.
317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202
(1986); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).
5. Pursuant to the adopted views of the federal standard, the new summary judgment
standard mirrors the directed verdict standard, which provides questions whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
6. Furthermore, in contrast to Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966), there is
"no express or implied requirement in Rule 56 that the moving party support its motion with
affidavits or other similar materials negating the opponent's claim." Celotex Corp. v. Catrett,
477 US. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
7. As such, under the federal summary judgment standard, "the extent of the moving
party's burden varies depending on who bears the burden of persuasion at trial." Salo v. Tyler,
2018 UT 7, 417 P. 3d 581, 587 (Utah 2018). Finally, the party opposing summary judgment
"must do more than simply show that there is some metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed.
2d 538 (1986).
1025563\307663292.v1CASE NO. CACE-19-021319 (13)
8. More recently, the federal standard was explained as "[w]hen opposing parties
tell two different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts for purposes of
ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769,
167 L. Ed. 2d 686 (2007).
9. The record reflects that the Defendant has met its burden by conclusively
establishing that there are no genuine issues of material fact as to the alleged negligence of the
Defendant in this matter, based purely on Plaintiff's deposition testimony and their inability to
assert a prima facie case for negligence without impermissible stacking of inferences and
speculation and conjecture.
10. Additionally, Plaintiff should be precluded from making an attempt to prove
liability or create a genuine issue of material fact by claiming negligent mode of operation,
which too should be subject to summary judgment.
WHEREFORE, the Defendant, WINN-DIXIE STORES, INC., respectfully moves this
Honorable Court for an Order granting summary final judgment in its favor, and any other relief
this Court deems just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 24'" day of March, 2021, a true and correct copy of the
foregoing was filed and served via Florida Courts eFiling Portal to the following counsel of
record: Susan Guller, Esq., The Law Offices of Justin G. Morgan, P.A., 2500 Weston Road,
Suite 211, Weston, FL 33331; pleadings@justinmorganlaw.com.
1025563\307663292.v1CASE NO. CACE-19-021319 (13)
HINSHAW & CULBERTSON LLP
/s/ Paul J.Gamm
Paul J. Gamm
Florida Bar No. 0577146
One East Broward Boulevard
Suite 1010
Ft. Lauderdale, FL 33301
Telephone: 954-467-7900
Primary: pgamm@hinshawlaw.com
Secondary: kcardenas@hinshawlaw.com
Attorneys for Defendant WINN-DIXIE.
1025563\307663292.v1
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Filing # 123688569 E-Filed 03/24/2021 02:13:27 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CIVIL DIVISION LUERETTA SMITH, Plaintiff, CASE NO. CACE-19-021319 (13) VS. WINN-DIXIE STORES, INC., Defendant. DEFENDANT WINN-DIXIE STORES, INC.'S SECOND SUPPLEM. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY FINAL JUDGMENT Defendant, WINN-DIXIE STORES, INC. (hereinafter “WINN-DIXIE”), by and through its undersigned counsel and pursuant to Florida Rules of Civil Procedure 1.510(c), and files this Second Supplemental Memorandum of Law in Support of their Motion for Summary Final Judgment as to all claims against WINN-DIXIE as set forth in the Complaint of the Plaintiff, LUERETTA SMITH, on the grounds that the pleadings, depositions, and answers to interrogatories on file affirmatively and conclusively demonstrate that there is no genuine issue of material fact, and Defendant is entitled to the entry of a final judgment as a matter of law, and as grounds therefore would show this Court as follows: 1. Defendant adopts and reasserts their Motion for Summary Final Judgment filed October 20, 2020 and Supplemental Memorandum of Law filed on January 27, 2021, as if fully set forth herein. 2. Defendant files this Supplement since the hearing date for the Motion for Summary Final Judgment will commence after the effective date of the amended Florida Rule of Civil Procedure 1.510. 1025563\307663292.v1 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 03/24/2021 02:13:27 PM.****CASE NO. CACE-19-021319 (13) 3. Recently, the Florida Supreme Court amended Florida Rule of Civil Procedure 1.510 to be consistent with the Federal Rule 56. See Jn re: Amendments to Florida Rule of Civil Procedure 1.510, No. SC20-1490, 2020 Fla. LEXIS 2148 (Fla. Dec. 31, 2020). 4. Specifically, the amendatory language provides: The summary judgment standard provided for in this rule shall be construed and applied in accordance with the federal summary judgment standard articulated in Ce/otex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). 5. Pursuant to the adopted views of the federal standard, the new summary judgment standard mirrors the directed verdict standard, which provides questions whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). 6. Furthermore, in contrast to Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966), there is "no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Celotex Corp. v. Catrett, 477 US. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). 7. As such, under the federal summary judgment standard, "the extent of the moving party's burden varies depending on who bears the burden of persuasion at trial." Salo v. Tyler, 2018 UT 7, 417 P. 3d 581, 587 (Utah 2018). Finally, the party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). 1025563\307663292.v1CASE NO. CACE-19-021319 (13) 8. More recently, the federal standard was explained as "[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). 9. The record reflects that the Defendant has met its burden by conclusively establishing that there are no genuine issues of material fact as to the alleged negligence of the Defendant in this matter, based purely on Plaintiff's deposition testimony and their inability to assert a prima facie case for negligence without impermissible stacking of inferences and speculation and conjecture. 10. Additionally, Plaintiff should be precluded from making an attempt to prove liability or create a genuine issue of material fact by claiming negligent mode of operation, which too should be subject to summary judgment. WHEREFORE, the Defendant, WINN-DIXIE STORES, INC., respectfully moves this Honorable Court for an Order granting summary final judgment in its favor, and any other relief this Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 24'" day of March, 2021, a true and correct copy of the foregoing was filed and served via Florida Courts eFiling Portal to the following counsel of record: Susan Guller, Esq., The Law Offices of Justin G. Morgan, P.A., 2500 Weston Road, Suite 211, Weston, FL 33331; pleadings@justinmorganlaw.com. 1025563\307663292.v1CASE NO. CACE-19-021319 (13) HINSHAW & CULBERTSON LLP /s/ Paul J.Gamm Paul J. Gamm Florida Bar No. 0577146 One East Broward Boulevard Suite 1010 Ft. Lauderdale, FL 33301 Telephone: 954-467-7900 Primary: pgamm@hinshawlaw.com Secondary: kcardenas@hinshawlaw.com Attorneys for Defendant WINN-DIXIE. 1025563\307663292.v1