Preview
Filing # 137678517 E-Filed 11/01/2021 05:52:39 PM
IN THE CIRCUIT COURT OF THE 15th
JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA
MARION J. YOUNG BUTERA
AND THOMAS BUTERA, her spouse,
Plaintiffs, CASE NO: 50-2021-CA-010108
v.
EDENS LIMITED PARTNERSHIP d/b/a
SUNSHINE SQUARE PLAZA and THE
BRIGHTVIEW LANDSCAPES, LLC,
Defendants.
EDENS LIMITED PARTNERSHIP d/b/a
SUNSHINE SQUARE PLAZA,
Cross-Plaintiff,
Vv.
THE BRIGHTVIEW LANDSCAPES, LLC,
Cross-Defendant.
/
DEFENDANT, THE BRIGHTVIEW LANDSCAPES, LLC’S ANSWER, AFFIRMATIVE
DEFENSES, AND DEMAND FOR JURY TRIAL TO THE PLAINTIFFS’ COMPLAINT
COMES NOW, the Defendant, THE BRIGHTVIEW LANDSCAPES, LLC (hereinafter
teferred to as “Defendant”), by and through its undersigned counsel, and pursuant to Florida
Rules of Civil Procedure Rule 1.140 & 1.110(c), hereby files its Answer, Affirmative Defenses,
and Demand for Jury Trial to the Plaintitis, MARION J. YOUNG BUTERA and THOMAS
BUTERA’: (hereinafter referred to as “Plaintiffs”) Complaint, and states as follows:
1. Defendant admits generally that Plaintiffs have initiated a civil suit seeking
damages. However, to the extent that the allegations contained in this paragraph imply or infer
31584329.v1
CHEN. DAIAARCACUAAIINTY Cl INCEDU ARDIIV7ZA FLEDY 441N41INNNA NE-£9.20 DNA
Pm. PAL DLA VUUINE TT, PL, JUOL I mDnuecy, ULL, Fue.) U.ue.u9 ritany liability or wrongdoing on the part of Defendant, or Plaintiffs’ entitlement to recovery from
Defendant, the allegations contained within paragraph one (1) of Plaintiffs’ Complaint are denied
and strict proof is demanded thereof.
2. Defendant states that it is without sufficient knowledge or information to admit or
deny the allegation contained within paragraph two (2) of Plaintiffs’ Complaint, and therefore
demands strict proof thereof.
3. Defendant states that it is without sufficient knowledge or information to admit or
deny the allegation contained within paragraph three (3) of Plaintiffs’ Complaint, and therefore
demands strict proof thereof.
4. Defendant states that the allegation contained within paragraph four (4) of
Plaintiffs’ Complaint is not directed at this Defendant.
5. Defendant admits the allegations contained within paragraph five (5) of Plaintiffs”Complaint.
COUNT ONE
ACTION FOR PERSONAL INJURY AGAINST
DEFENDANT, EDENS LIMITED PARTNERSHIP!
6. Detendant states that the allegations contained within paragraphs 6, 7, 8, 9, 10
(including subparagraphs (a), (b), (c), @), (©), (A, (g), (a), and (i) are not directed at this
Defendant; however, to the extent that they may be deemed directed at this Defendant, the
allegations are denied and strict proof is demanded thereof.
The repetition of subheadings utilized byl Plaintiffs i in their Complaint was done solely for organizational
purposes, and is not an admission as to iheir iruth. All allegations not expressly addressed herein are
denied, and strict proof is demanded thereof.
Page 2 of 11
31584329.v1COUNT TWO
CONSORTIUM CLAIM AGAINST
DEFENDANT, EDENS LIMITED PARTNERSHIP
7. Defendant states that the allegations contained within paragraphs 11, 12, 13, and
14 are not directed at this Defendant; however, to the extent that they may be deemed directed at
this Defendant, the allegations are denied and strict proof is demanded thereof.
COUNT THREE
ACTION FOR PERSONAL INJURY AGAINST
DEFENDANT, BRIGHTVIEW LANDSCAPES, LLC
8. Defendant realleges and reavers its responses to paragraphs one (1) — four (4)
above as if fully set forth herein in response to paragraph fifteen (15) of Plaintiffs’ Complaint.
9. Defendant denies the allegations contained within paragraph sixteen (16) of
Plaintiffs’ Complaint as worded, and demands strict proof thereof. In particular, Defendant
denies that it was hired to/responsible to maintain any area between landscaping to be utilized as
a walkway.
10. Defendant denies the allegations contained within paragraph seventeen (17) of
Plaintiffs’ Complaint, and demands strict proof thereof.
ii. Defendant denies the aliegations contained within paragraph eighteen (i8) of
Plaintiffs’ Complaint, and demands strict proof thereof.
12. Defendant denies the allegations contained within paragraph nineteen (19) of
Plaintiffs’ Complaint, including subparagraphs (a), (b), (c), (d), (e), (8), (g), (bh), and (i), and
demands strict proof thereof.
13. Defendant denies the allegations set forth in the unnumbered “WHEREFORE”
paragraph of Plaintiffs’ Complaint following paragraph nineteen (19), and denies that Plaintiffs
ara antitlad ta damanac
@re Ciuc w GamaZzes.
Page 3 of 11
31584329.v1COUNT FOUR
CONSORTIUM CLAIM AGAINST
DEFENDANT, BRIGHTVIEW LANDSCAPES, LLC
14. Defendant realleges and reavers its responses to paragraphs one (1) — four (4)
above as if fully set forth herein in response to paragraph twenty (20) of Plaintiffs’ Complaint.
15. Defendant states that it is without sufficient knowledge or information to admit or
deny the allegation contained within paragraph twenty-one (21) of Plaintiffs’ Complaint, and
therefore demands strict proof thereof.
16. Defendant denies the allegations contained within paragraph twenty-two (22) of
Plaintiffs’ Complaint as worded, and demand strict proof thereof. In particular, Defendant
denies that it was hired to/responsible to maintain any area between landscaping to be utilized as
a walkway.
17. Defendant denies the allegations contained within paragraph twenty-three (23) ofPlaintiffs’ Complaint, and demands strict proof thereof.
18. Defendant denies the allegations contained within paragraph twenty-four (24) of
Plaintiffs’ Complaint, and demands strict proof thereof.
19. Defendant denies the aliegations set forth in the unnumbered “WHEREFORE”
paragraph of Plaintiffs’ Complaint following paragraph twenty-four (24), and denies that
Plaintiffs are entitled to damages.
20. Pursuant to Fla. R. Civ. P. 1.110(c), Defendant specifically and generally denies
any and all remaining allegations of matters, facts, and things contained within Plaintiffs’
Complaint to which no response heretofore has been made, or has been specifically admitted,
and demands that strict proof be made thereon.
? Paragraph twenty-four (24) of Plaintiffs’ Complaint is mislabeled as paragraph fourteen (14).
Page 4 of 11
31584329.v121. Defendant specifically denies: all allegations of negligence and/or any breaches of
any alleged duties owed to Plaintiff; notice; proximate causation; injuries and damages (if any);
or that it is liable to the Plaintiff herein, and demands strict proof thereof.
DEFENDANT’S AFFIRMATIVE DEFENSES
I. THIRD PARTY LIABILITY
As its first affirmative defense, Defendant asserts that the alleged damages, if any, which
Defendant expressly denies, that are the subject of Plaintiffs’ Complaint were caused, in whole
or in part, by the negligent and careless acts or omissions of parties and non-parties over whom
this Defendant had neither control, nor the right to control or supervise, and, therefore, Plaintiff,
MARION J. YOUNG BUTERA, is barred from recovery or, alternatively, any recovery by
Plaintiff should be reduced proportionate to the fault of such parties and/or third parties,
including the party or parties that installed the subject sprinkler head that is alleged to be a
dangerous condition. The alleged dangerous condition out of which Plaintiffs’ claims arise were
caused in whole or in part by the actions of the non-party or non-parties. Defendant does not
presently know the identity of all culpable non-parties at this time, but expressly reserves the
right to amend its aitirmative defense based on future discovery. Pursuant to Fabre v. Martin.
623 So. 2d 1182 (Fla. 1993), these third or non-parties should appear on the verdict form for
purposes of apportionment of fault.
TI. APPORTIONMENT OF FAULT.
As its next affirmative defense, Defendant affirmatively asserts that should Plaintiffs be
awarded any damages, any allocation of liability, for which this Defendant expressly denies, between
the parties to this action, including Plaintiffs, Co-Defendant, EDENS LIMITED PARTNERSHIP
Afkle CTINGHINE COMADE DI ATA and unbnaum third nartias far thaca damanac mnot ha mada
Gd SUNS OU ANG DLA, and UnKOWN UllU palues 10 ul0De Gallages, Daust OS nlaUe:
Page 5 of 11
31584329.v1or adjudicated in accordance with the rules or doctrines established by the Florida Supreme Court in
Fabre v. Marin, 623 So. 2d 1182 (Fla.1993), and Wells v. Tallahassee Memorial Regional Medical
Center, Inc., 659 So. 2d 249 (Fla.1995). Moreover, Defendant states that Plaintiffs’ damages, if
any, were proximately caused by the negligence or fault of Plaintiff, MARION J. YOUNG
BUTERA, herself, or by Co-Defendant, EDENS LIMITED PARTNERSHIP d/b/a SUNSHINE
SQUARE PLAZA, and parties, persons or entities beyond the knowledge and control of
Defendant. The acts or omissions of the aforesaid persons or entities were the sole proximate
cause, or a contributing proximate cause, of the injuries and damages sustained by Plaintiffs, and
pursuant to Fla. Stat. §768.81(13), the names of these persons or entities must appear on the verdict
form at the time of trial so that a jury can apportion fault. Thus, Plaintiffs’ claims should be barred
or proportionally reduced by the intentional and/or negligent acts of such known or unknown other
third parties. Further, to the extent any recovery is permitted in this case, pursuant to Fla. Stat. §§768.31 and 768.81, judgment must be entered on the basis of Defendant’s percentage of fault, if
any, taking into account the percentage of fault attributable to all other parties, persons or entities,
and not on the basis of joint and several liability. Additional persons or entities may have been
responsible, whom thts Defendant wili identify with as much particularity as is feasibie as
discovery progresses, and in sufficient time to allow Plaintiff to respond and/or file amended
pleadings.
I. LACK OF PROXIMATE CAUSE
As its next affirmative defense, Defendant affirmatively asserts that the allegations of
Plaintiffs’ Complaint, even if proven, fail to establish that the alleged acts or omissions of
Defendant are the proximate cause of the injuries as alleged. Therefore, Defendant cannot be
hald Gable wndar tha airaumatannas aca mattar af laur
MCG Have UnUET Ue CHCUTSLanCeS ao a ulauer OL Law.
Page 6 of 11
31584329.v1IV. INTERVENING CAUSE
As its next affirmative defense, Defendant affirmatively asserts that the damages of
which Plaintiffs complain were brought about by an intervening, independent, and unforeseeable
superseding cause over which Defendant had no control, and were not foreseeable by a
reasonably prudent person, and for which Defendant cannot be held liable for under applicable
Florida Law.
V. COMPARATIVE NEGLIGENCE AND/OR CONTRIBUTORY NEGLIGENCE OF PLAINTIFF
As its next affirmative defense, Defendant affirmatively asserts that at the time and place
of the alleged incident, Plaintiff, MARION J. YOUNG BUTERA’s own carelessness, negligence
and/or intentional conduct was the sole cause or a contributing cause of the alleged incident and
injuries and, therefore, Plaintiffs are completely barred from recovery for any damages against
Deiciaaiit OF Plains Gaiiages, i any, SuOUld Ue TeuUCed in proportdi 16 Said Heggence aia,
accordingly, any award to which Plaintiffs may be entitled should be reduced proportionally
pursuant to the Doctrine of Comparative Negligence under Florida law. Specifically, Plaintiff,
MARION J. YOUNG BUTERA, failed to use reasonable care under the circumstances for her
own safety and welfare, by negligently and carelessly walking between landscaping, and not
utilizing the designated pathway. Additionally, Plaintiff, MARION J. YOUNG BUTERA, failed
to use reasonable care under the circumstances for her own safety and welfare while negligently
and carelessly walking hetween landscaning which resulted in her failing to ohserve a snrinkler
head, which was an open and obvious condition. This failure wholly caused or substantially
contributed to Plaintiffs’ alleged damages, and any recovery must be reduced by the extent of
Plaintiff, MARION J. YOUNG BUTERA’s own negligence.
Page 7 of 11
31584329.v1VI. OPEN AND OBVIOUS CONDITION - NO DUTY TO WARN
As its next affirmative defense, Defendant affirmatively asserts that the alleged dangerous
condition, to wit: a sprinkler head between landscaping, was open and obvious, and otherwise,
clearly visible, and otherwise easily discoverable by Plaintiff, MARION J. YOUNG BUTERA,
and but for Plaintiff, MARION J. YOUNG BUTERA’s own negligence, the incident complained
of would have been avoided entirely, and therefore, no duty to warn arose.
VII. NO-BREACH OF APPLICABLE STANDARD OF CARE
As its next affirmative defense, Defendant states that any damages which occurred were
not the result of any act or failure to act by this Defendant, in that all actions taken by this
Defendant, its employees, servants, agents or other representatives, if any, were performed in
accordance with industry standards, all applicable safety procedures, and in accordance with good
and safe practices, and thus, Defendant did not breach any applicable standard of care.Furthermore, Defendant, its employees, servants, agents or other representatives, exercised due
care and diligence in all matters alleged in Plaintiffs’ Complaint, thereby barring Plaintiff from any
recovery herein as against Defendant. Specifically, Defendant was not responsible for maintaining
a pathway between landscaping, when there was a designated pathway in the immediate vicinity of
the area where the subject accident allegedly occurred. All landscaping work performed by this
Defendant was done in accordance with industry standards, all applicable safety procedures, and in
accordance with good and safe practices.
VIL. STATUTORY SET-OFF-COLLATERAL SOURCES
As its next affirmative defense, Defendant asserts that in the event Plaintiffs obtain a
recovery, then Defendant is entitled to a set-off from any amounts received by Plaintiffs from
eallataral ennrnas andlar anu athar racnancihla tartfancara ar racnancihla nartiag in ancardanna
COualrar SOUICeS andr any Guler TespOnsioi wiucasois Of TespOusiwiw Pauls, im acCoraance’
Page 8 of 11
31584329.v1with the provisions of Florida Statute §§ 768.041, 768.31 and/or 768.76. Additionally, Defendant
asserts that it is entitled to a set off of any contractual discount of medical bills or expenses,
negotiated write off of medical bills or expenses or negotiated agreement to pay medical bills or
other expenses in the future pursuant to the law of collateral source setoffs and Goble v. Frohman.
901 So. 2d 830 (Fla. 2005). Alternatively, Plaintiffs are not entitled to claim bills, costs or
expenses incurred but waived or not actually incurred by Plaintiffs.
IX. FAILURE TO MITIGATE DAMAGES
As its next affirmative defense, Defendant affirmatively asserts that Plaintiffs have failed
to mitigate their damages, if any, and therefore, any recovery is to be reduced by the degree of
said failure to mitigate and/or Plaintiffs are not entitled to recovery of any damages which could
have been otherwise mitigated.
X. PLAINTIFFS’ SPECIAL DAMAGES ARE LIMITED
As its next affirmative defense, Defendant affirmatively asserts that the amount of special
damages claimed by Plaintiffs for reimbursement of reasonable healthcare, is limited to the
amount of the payment ultimately accepted by Plaintiffs’ healthcare providers as payment in full.
GES ARE UNRELATED TO THE INCIDENT ALLEGED iN
PLAINTIFFS’? COMPLAINT
Xi. PLAINTIFE
As its next affirmative defense, Defendant affirmatively asserts that Plaintiffs’ claim for
medical bills incurred as a result of the alleged injuries are exaggerated, unnecessary,
unreasonabie, and/or atiriputabie io prior and/or subsequent injuries, and noi resuliing trom the
alleged injuries herein.
XII. NO NOTICE OF ANY ALLEGED DANGEROUS CONDITION
BY THIS DEFENDANT.
An dhe nat nffiemntivin dnfonan Dafandant offemntivali nonavts that it ig ant Hahla fre tha
AS US TCAL auiiauve UCIcSS, VTCHGall auilimanVery aSSciiS ula it iS TOL wiavie 10r uid
Page 9 of 11
31584329.v1conduct of another, namely Plaintiff, who may have caused injury to herself, in that Defendant had
no notice of the alleged danger involved (the existence of which the Defendant specifically denies)
nor an opportunity to protect against such danger. The alleged dangerous condition that caused the
subject accident, a sprinklerhead in a pathway between landscaping that this Defendant was not
responsible for, had not existed for a sufficient length of time for Defendant to either actually know,
or to constructively know of its existence. Thus, Defendant had insufficient notice regarding the
problems complained of by Plaintiffs. Any and all conditions complained of by Plaintiffs existed
for such a short period of time that there was no notice to Defendant, so that corrective action could
be taken.
RESERVATION OF DEFENSES
Defendant, hereby gives notice that it may rely upon any other defense that may become
available during the discovery proceedings in this case and expressly reserves and preserves allapplicable remedies, defenses, privileges, causes of actions, counter-claims, third-party claims,
or otherwise, to include but not limited to, all defenses set forth within the Florida Rules of Civil
Procedure; the Statute of Limitations; the right to pursue attorney’s fees and costs; as well as, all
other rights and remedies available to this Defendant under aii appiicabie iaw and, hereby further
reserves and preserves the right to supplement, amend, modify, and/or revise this Answer and
Affirmative Defenses pending discovery and clarification of Plaintiffs’ claims against this
Defendant, and as additional information becomes available during the course of discovery in
this action.
DEMAND FOR JURY TRIAL
Defendant, THE BRIGHTVIEW LANDSCAPES, LLC, demands a trial by jury of all
foonas on triahla ac a mattar af richt
155uUs 50 Uiauie a5 a miaucr Or gut
Page 10 of 11
31584329.v1WHEREFORE, the Defendant, THE BRIGHTVIEW LANDSCAPES, LLC,
respectfully requests from this Honorable Court that the Complaint in question be dismissed, and
that judgment be entered in its favor to determine that the Plaintiffs take nothing by this action,
and for such other relief as this Court deems just and proper, including the taxing of costs and
expenses incurred by Defendant in its defense unto the Plaintiffs.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was forwarded
electronically to Barry G. Hoffman, Esquire, (Attorney for Plaintiff) hchlawoffice@aol.com,
BARRY G. HOFFMAN LAW FIRM, P.A., 9045 La Fontana Blvd., Suite 106, Boca Raton, FL
33434; Mitchell H. Katler, Esquire, (Attorney for Defendant, Edens Limited Partnership d/b/a
Sunshine Square Plaza), MKatler@travelers.com, EGuilbea@travelers.com;
TGruende@travelers.com; Law Offices of James W. Kehoe, III, 3230 West Commercial Blvd.,
Suite 250, Ft. Lauderdale, FL 33309, this 1st day of November 2021. The certificate is taken as
prima facie proof of such service in compliance with Fla. R. Jud. Admin. 2.516.
/s/ David Majcak
GOLDBERG SEGALLA, LLP
David J. Majeak, Esquire
Florida Bar No. 0073883
222 Lakeview Avenue, Suite 800
West Palm Beach, FL 33401
(561) 618-4469 Office
(561) 618-4549 Fax
Gini aeSignaiions:
dmajcak@goldbergsegalla.com
dharrison@goldbergsegalla.com
Page 11 of 11
31584329.v1
Preview
Filing # 137678517 E-Filed 11/01/2021 05:52:39 PM IN THE CIRCUIT COURT OF THE 15th JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA MARION J. YOUNG BUTERA AND THOMAS BUTERA, her spouse, Plaintiffs, CASE NO: 50-2021-CA-010108 v. EDENS LIMITED PARTNERSHIP d/b/a SUNSHINE SQUARE PLAZA and THE BRIGHTVIEW LANDSCAPES, LLC, Defendants. EDENS LIMITED PARTNERSHIP d/b/a SUNSHINE SQUARE PLAZA, Cross-Plaintiff, Vv. THE BRIGHTVIEW LANDSCAPES, LLC, Cross-Defendant. / DEFENDANT, THE BRIGHTVIEW LANDSCAPES, LLC’S ANSWER, AFFIRMATIVE DEFENSES, AND DEMAND FOR JURY TRIAL TO THE PLAINTIFFS’ COMPLAINT COMES NOW, the Defendant, THE BRIGHTVIEW LANDSCAPES, LLC (hereinafter teferred to as “Defendant”), by and through its undersigned counsel, and pursuant to Florida Rules of Civil Procedure Rule 1.140 & 1.110(c), hereby files its Answer, Affirmative Defenses, and Demand for Jury Trial to the Plaintitis, MARION J. YOUNG BUTERA and THOMAS BUTERA’: (hereinafter referred to as “Plaintiffs”) Complaint, and states as follows: 1. Defendant admits generally that Plaintiffs have initiated a civil suit seeking damages. However, to the extent that the allegations contained in this paragraph imply or infer 31584329.v1 CHEN. DAIAARCACUAAIINTY Cl INCEDU ARDIIV7ZA FLEDY 441N41INNNA NE-£9.20 DNA Pm. PAL DLA VUUINE TT, PL, JUOL I mDnuecy, ULL, Fue.) U.ue.u9 ritany liability or wrongdoing on the part of Defendant, or Plaintiffs’ entitlement to recovery from Defendant, the allegations contained within paragraph one (1) of Plaintiffs’ Complaint are denied and strict proof is demanded thereof. 2. Defendant states that it is without sufficient knowledge or information to admit or deny the allegation contained within paragraph two (2) of Plaintiffs’ Complaint, and therefore demands strict proof thereof. 3. Defendant states that it is without sufficient knowledge or information to admit or deny the allegation contained within paragraph three (3) of Plaintiffs’ Complaint, and therefore demands strict proof thereof. 4. Defendant states that the allegation contained within paragraph four (4) of Plaintiffs’ Complaint is not directed at this Defendant. 5. Defendant admits the allegations contained within paragraph five (5) of Plaintiffs”Complaint. COUNT ONE ACTION FOR PERSONAL INJURY AGAINST DEFENDANT, EDENS LIMITED PARTNERSHIP! 6. Detendant states that the allegations contained within paragraphs 6, 7, 8, 9, 10 (including subparagraphs (a), (b), (c), @), (©), (A, (g), (a), and (i) are not directed at this Defendant; however, to the extent that they may be deemed directed at this Defendant, the allegations are denied and strict proof is demanded thereof. The repetition of subheadings utilized byl Plaintiffs i in their Complaint was done solely for organizational purposes, and is not an admission as to iheir iruth. All allegations not expressly addressed herein are denied, and strict proof is demanded thereof. Page 2 of 11 31584329.v1COUNT TWO CONSORTIUM CLAIM AGAINST DEFENDANT, EDENS LIMITED PARTNERSHIP 7. Defendant states that the allegations contained within paragraphs 11, 12, 13, and 14 are not directed at this Defendant; however, to the extent that they may be deemed directed at this Defendant, the allegations are denied and strict proof is demanded thereof. COUNT THREE ACTION FOR PERSONAL INJURY AGAINST DEFENDANT, BRIGHTVIEW LANDSCAPES, LLC 8. Defendant realleges and reavers its responses to paragraphs one (1) — four (4) above as if fully set forth herein in response to paragraph fifteen (15) of Plaintiffs’ Complaint. 9. Defendant denies the allegations contained within paragraph sixteen (16) of Plaintiffs’ Complaint as worded, and demands strict proof thereof. In particular, Defendant denies that it was hired to/responsible to maintain any area between landscaping to be utilized as a walkway. 10. Defendant denies the allegations contained within paragraph seventeen (17) of Plaintiffs’ Complaint, and demands strict proof thereof. ii. Defendant denies the aliegations contained within paragraph eighteen (i8) of Plaintiffs’ Complaint, and demands strict proof thereof. 12. Defendant denies the allegations contained within paragraph nineteen (19) of Plaintiffs’ Complaint, including subparagraphs (a), (b), (c), (d), (e), (8), (g), (bh), and (i), and demands strict proof thereof. 13. Defendant denies the allegations set forth in the unnumbered “WHEREFORE” paragraph of Plaintiffs’ Complaint following paragraph nineteen (19), and denies that Plaintiffs ara antitlad ta damanac @re Ciuc w GamaZzes. Page 3 of 11 31584329.v1COUNT FOUR CONSORTIUM CLAIM AGAINST DEFENDANT, BRIGHTVIEW LANDSCAPES, LLC 14. Defendant realleges and reavers its responses to paragraphs one (1) — four (4) above as if fully set forth herein in response to paragraph twenty (20) of Plaintiffs’ Complaint. 15. Defendant states that it is without sufficient knowledge or information to admit or deny the allegation contained within paragraph twenty-one (21) of Plaintiffs’ Complaint, and therefore demands strict proof thereof. 16. Defendant denies the allegations contained within paragraph twenty-two (22) of Plaintiffs’ Complaint as worded, and demand strict proof thereof. In particular, Defendant denies that it was hired to/responsible to maintain any area between landscaping to be utilized as a walkway. 17. Defendant denies the allegations contained within paragraph twenty-three (23) ofPlaintiffs’ Complaint, and demands strict proof thereof. 18. Defendant denies the allegations contained within paragraph twenty-four (24) of Plaintiffs’ Complaint, and demands strict proof thereof. 19. Defendant denies the aliegations set forth in the unnumbered “WHEREFORE” paragraph of Plaintiffs’ Complaint following paragraph twenty-four (24), and denies that Plaintiffs are entitled to damages. 20. Pursuant to Fla. R. Civ. P. 1.110(c), Defendant specifically and generally denies any and all remaining allegations of matters, facts, and things contained within Plaintiffs’ Complaint to which no response heretofore has been made, or has been specifically admitted, and demands that strict proof be made thereon. ? Paragraph twenty-four (24) of Plaintiffs’ Complaint is mislabeled as paragraph fourteen (14). Page 4 of 11 31584329.v121. Defendant specifically denies: all allegations of negligence and/or any breaches of any alleged duties owed to Plaintiff; notice; proximate causation; injuries and damages (if any); or that it is liable to the Plaintiff herein, and demands strict proof thereof. DEFENDANT’S AFFIRMATIVE DEFENSES I. THIRD PARTY LIABILITY As its first affirmative defense, Defendant asserts that the alleged damages, if any, which Defendant expressly denies, that are the subject of Plaintiffs’ Complaint were caused, in whole or in part, by the negligent and careless acts or omissions of parties and non-parties over whom this Defendant had neither control, nor the right to control or supervise, and, therefore, Plaintiff, MARION J. YOUNG BUTERA, is barred from recovery or, alternatively, any recovery by Plaintiff should be reduced proportionate to the fault of such parties and/or third parties, including the party or parties that installed the subject sprinkler head that is alleged to be a dangerous condition. The alleged dangerous condition out of which Plaintiffs’ claims arise were caused in whole or in part by the actions of the non-party or non-parties. Defendant does not presently know the identity of all culpable non-parties at this time, but expressly reserves the right to amend its aitirmative defense based on future discovery. Pursuant to Fabre v. Martin. 623 So. 2d 1182 (Fla. 1993), these third or non-parties should appear on the verdict form for purposes of apportionment of fault. TI. APPORTIONMENT OF FAULT. As its next affirmative defense, Defendant affirmatively asserts that should Plaintiffs be awarded any damages, any allocation of liability, for which this Defendant expressly denies, between the parties to this action, including Plaintiffs, Co-Defendant, EDENS LIMITED PARTNERSHIP Afkle CTINGHINE COMADE DI ATA and unbnaum third nartias far thaca damanac mnot ha mada Gd SUNS OU ANG DLA, and UnKOWN UllU palues 10 ul0De Gallages, Daust OS nlaUe: Page 5 of 11 31584329.v1or adjudicated in accordance with the rules or doctrines established by the Florida Supreme Court in Fabre v. Marin, 623 So. 2d 1182 (Fla.1993), and Wells v. Tallahassee Memorial Regional Medical Center, Inc., 659 So. 2d 249 (Fla.1995). Moreover, Defendant states that Plaintiffs’ damages, if any, were proximately caused by the negligence or fault of Plaintiff, MARION J. YOUNG BUTERA, herself, or by Co-Defendant, EDENS LIMITED PARTNERSHIP d/b/a SUNSHINE SQUARE PLAZA, and parties, persons or entities beyond the knowledge and control of Defendant. The acts or omissions of the aforesaid persons or entities were the sole proximate cause, or a contributing proximate cause, of the injuries and damages sustained by Plaintiffs, and pursuant to Fla. Stat. §768.81(13), the names of these persons or entities must appear on the verdict form at the time of trial so that a jury can apportion fault. Thus, Plaintiffs’ claims should be barred or proportionally reduced by the intentional and/or negligent acts of such known or unknown other third parties. Further, to the extent any recovery is permitted in this case, pursuant to Fla. Stat. §§768.31 and 768.81, judgment must be entered on the basis of Defendant’s percentage of fault, if any, taking into account the percentage of fault attributable to all other parties, persons or entities, and not on the basis of joint and several liability. Additional persons or entities may have been responsible, whom thts Defendant wili identify with as much particularity as is feasibie as discovery progresses, and in sufficient time to allow Plaintiff to respond and/or file amended pleadings. I. LACK OF PROXIMATE CAUSE As its next affirmative defense, Defendant affirmatively asserts that the allegations of Plaintiffs’ Complaint, even if proven, fail to establish that the alleged acts or omissions of Defendant are the proximate cause of the injuries as alleged. Therefore, Defendant cannot be hald Gable wndar tha airaumatannas aca mattar af laur MCG Have UnUET Ue CHCUTSLanCeS ao a ulauer OL Law. Page 6 of 11 31584329.v1IV. INTERVENING CAUSE As its next affirmative defense, Defendant affirmatively asserts that the damages of which Plaintiffs complain were brought about by an intervening, independent, and unforeseeable superseding cause over which Defendant had no control, and were not foreseeable by a reasonably prudent person, and for which Defendant cannot be held liable for under applicable Florida Law. V. COMPARATIVE NEGLIGENCE AND/OR CONTRIBUTORY NEGLIGENCE OF PLAINTIFF As its next affirmative defense, Defendant affirmatively asserts that at the time and place of the alleged incident, Plaintiff, MARION J. YOUNG BUTERA’s own carelessness, negligence and/or intentional conduct was the sole cause or a contributing cause of the alleged incident and injuries and, therefore, Plaintiffs are completely barred from recovery for any damages against Deiciaaiit OF Plains Gaiiages, i any, SuOUld Ue TeuUCed in proportdi 16 Said Heggence aia, accordingly, any award to which Plaintiffs may be entitled should be reduced proportionally pursuant to the Doctrine of Comparative Negligence under Florida law. Specifically, Plaintiff, MARION J. YOUNG BUTERA, failed to use reasonable care under the circumstances for her own safety and welfare, by negligently and carelessly walking between landscaping, and not utilizing the designated pathway. Additionally, Plaintiff, MARION J. YOUNG BUTERA, failed to use reasonable care under the circumstances for her own safety and welfare while negligently and carelessly walking hetween landscaning which resulted in her failing to ohserve a snrinkler head, which was an open and obvious condition. This failure wholly caused or substantially contributed to Plaintiffs’ alleged damages, and any recovery must be reduced by the extent of Plaintiff, MARION J. YOUNG BUTERA’s own negligence. Page 7 of 11 31584329.v1VI. OPEN AND OBVIOUS CONDITION - NO DUTY TO WARN As its next affirmative defense, Defendant affirmatively asserts that the alleged dangerous condition, to wit: a sprinkler head between landscaping, was open and obvious, and otherwise, clearly visible, and otherwise easily discoverable by Plaintiff, MARION J. YOUNG BUTERA, and but for Plaintiff, MARION J. YOUNG BUTERA’s own negligence, the incident complained of would have been avoided entirely, and therefore, no duty to warn arose. VII. NO-BREACH OF APPLICABLE STANDARD OF CARE As its next affirmative defense, Defendant states that any damages which occurred were not the result of any act or failure to act by this Defendant, in that all actions taken by this Defendant, its employees, servants, agents or other representatives, if any, were performed in accordance with industry standards, all applicable safety procedures, and in accordance with good and safe practices, and thus, Defendant did not breach any applicable standard of care.Furthermore, Defendant, its employees, servants, agents or other representatives, exercised due care and diligence in all matters alleged in Plaintiffs’ Complaint, thereby barring Plaintiff from any recovery herein as against Defendant. Specifically, Defendant was not responsible for maintaining a pathway between landscaping, when there was a designated pathway in the immediate vicinity of the area where the subject accident allegedly occurred. All landscaping work performed by this Defendant was done in accordance with industry standards, all applicable safety procedures, and in accordance with good and safe practices. VIL. STATUTORY SET-OFF-COLLATERAL SOURCES As its next affirmative defense, Defendant asserts that in the event Plaintiffs obtain a recovery, then Defendant is entitled to a set-off from any amounts received by Plaintiffs from eallataral ennrnas andlar anu athar racnancihla tartfancara ar racnancihla nartiag in ancardanna COualrar SOUICeS andr any Guler TespOnsioi wiucasois Of TespOusiwiw Pauls, im acCoraance’ Page 8 of 11 31584329.v1with the provisions of Florida Statute §§ 768.041, 768.31 and/or 768.76. Additionally, Defendant asserts that it is entitled to a set off of any contractual discount of medical bills or expenses, negotiated write off of medical bills or expenses or negotiated agreement to pay medical bills or other expenses in the future pursuant to the law of collateral source setoffs and Goble v. Frohman. 901 So. 2d 830 (Fla. 2005). Alternatively, Plaintiffs are not entitled to claim bills, costs or expenses incurred but waived or not actually incurred by Plaintiffs. IX. FAILURE TO MITIGATE DAMAGES As its next affirmative defense, Defendant affirmatively asserts that Plaintiffs have failed to mitigate their damages, if any, and therefore, any recovery is to be reduced by the degree of said failure to mitigate and/or Plaintiffs are not entitled to recovery of any damages which could have been otherwise mitigated. X. PLAINTIFFS’ SPECIAL DAMAGES ARE LIMITED As its next affirmative defense, Defendant affirmatively asserts that the amount of special damages claimed by Plaintiffs for reimbursement of reasonable healthcare, is limited to the amount of the payment ultimately accepted by Plaintiffs’ healthcare providers as payment in full. GES ARE UNRELATED TO THE INCIDENT ALLEGED iN PLAINTIFFS’? COMPLAINT Xi. PLAINTIFE As its next affirmative defense, Defendant affirmatively asserts that Plaintiffs’ claim for medical bills incurred as a result of the alleged injuries are exaggerated, unnecessary, unreasonabie, and/or atiriputabie io prior and/or subsequent injuries, and noi resuliing trom the alleged injuries herein. XII. NO NOTICE OF ANY ALLEGED DANGEROUS CONDITION BY THIS DEFENDANT. An dhe nat nffiemntivin dnfonan Dafandant offemntivali nonavts that it ig ant Hahla fre tha AS US TCAL auiiauve UCIcSS, VTCHGall auilimanVery aSSciiS ula it iS TOL wiavie 10r uid Page 9 of 11 31584329.v1conduct of another, namely Plaintiff, who may have caused injury to herself, in that Defendant had no notice of the alleged danger involved (the existence of which the Defendant specifically denies) nor an opportunity to protect against such danger. The alleged dangerous condition that caused the subject accident, a sprinklerhead in a pathway between landscaping that this Defendant was not responsible for, had not existed for a sufficient length of time for Defendant to either actually know, or to constructively know of its existence. Thus, Defendant had insufficient notice regarding the problems complained of by Plaintiffs. Any and all conditions complained of by Plaintiffs existed for such a short period of time that there was no notice to Defendant, so that corrective action could be taken. RESERVATION OF DEFENSES Defendant, hereby gives notice that it may rely upon any other defense that may become available during the discovery proceedings in this case and expressly reserves and preserves allapplicable remedies, defenses, privileges, causes of actions, counter-claims, third-party claims, or otherwise, to include but not limited to, all defenses set forth within the Florida Rules of Civil Procedure; the Statute of Limitations; the right to pursue attorney’s fees and costs; as well as, all other rights and remedies available to this Defendant under aii appiicabie iaw and, hereby further reserves and preserves the right to supplement, amend, modify, and/or revise this Answer and Affirmative Defenses pending discovery and clarification of Plaintiffs’ claims against this Defendant, and as additional information becomes available during the course of discovery in this action. DEMAND FOR JURY TRIAL Defendant, THE BRIGHTVIEW LANDSCAPES, LLC, demands a trial by jury of all foonas on triahla ac a mattar af richt 155uUs 50 Uiauie a5 a miaucr Or gut Page 10 of 11 31584329.v1WHEREFORE, the Defendant, THE BRIGHTVIEW LANDSCAPES, LLC, respectfully requests from this Honorable Court that the Complaint in question be dismissed, and that judgment be entered in its favor to determine that the Plaintiffs take nothing by this action, and for such other relief as this Court deems just and proper, including the taxing of costs and expenses incurred by Defendant in its defense unto the Plaintiffs. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was forwarded electronically to Barry G. Hoffman, Esquire, (Attorney for Plaintiff) hchlawoffice@aol.com, BARRY G. HOFFMAN LAW FIRM, P.A., 9045 La Fontana Blvd., Suite 106, Boca Raton, FL 33434; Mitchell H. Katler, Esquire, (Attorney for Defendant, Edens Limited Partnership d/b/a Sunshine Square Plaza), MKatler@travelers.com, EGuilbea@travelers.com; TGruende@travelers.com; Law Offices of James W. Kehoe, III, 3230 West Commercial Blvd., Suite 250, Ft. Lauderdale, FL 33309, this 1st day of November 2021. The certificate is taken as prima facie proof of such service in compliance with Fla. R. Jud. Admin. 2.516. /s/ David Majcak GOLDBERG SEGALLA, LLP David J. Majeak, Esquire Florida Bar No. 0073883 222 Lakeview Avenue, Suite 800 West Palm Beach, FL 33401 (561) 618-4469 Office (561) 618-4549 Fax Gini aeSignaiions: dmajcak@goldbergsegalla.com dharrison@goldbergsegalla.com Page 11 of 11 31584329.v1