Preview
Filing# 137324494 E-Filed 10/26/2021 05:11:00 PM
IN THE CIRCUIT COURT OF THE
SEVENTEENTH JUDICIAL CIRCUIT IN
AND FOR BROWARD COUNTY,
FLORIDA
CASE NO.: CACE-21-016578
JOY FURER,
Plaintiff.
V
GG RE HOLLYWOOD BEACH 613 LLC,
Defendant.
i
DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF'S
COMPLAINT
Defendant, GG RE HOLLYWOOD BEACH 613 LLC, by and through its undersigned
counsel and pursuant to Florida Rule o f Civil Procedure 1.140, hereby files its Answer and
Affirmative Defenses to Plaintiff's Complaint, and states:
ALLEGATIONS AS TO ALL COUNTS
1. Denied.
2. Denied.
3 Denied.
4. Denied.
5. Denied.
6. Denied.
7. Denied.
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 10/26/2021 05:11:00 PM.****
COUNTI
8 Defendant re-allegesand re-avers its responses and statements contained in
paragraphs 1 though 7 as if fullyset forth herein.
9- Denied.
10. Denied.
11. Denied.
12. Denied.
13. Denied.
14. Denied (a-u).
15. Denied.
16. Denied.
17. Denied.
18. Denied (a-d).
19. Denied.
DEFENDANT'S AFFIRMATIVE DEFENSES
1. Defendant denies that Plaintiff's injurieswere the result of negligence by the
Defendant.
2. Defendant states at the time and place complained of Plaintiff was guilty of
negligence,which negligence was the legalcause of or contributed to the incident complained of,
and to the extent of such negligence,the Plaintiff is barred and estopped from any recovery in this
cause or, in the any recovery had must be reduced in accordance with the principles
alternative, of
comparativenegligencepursuant to § 768.81, Fla. Stat.
3 Plaintiff knew of the existence of the alleged danger complained of in the
Complaint (theexistence of which is denied),realized and appreciatedthe possibility
of injuryas
a result of the allegeddanger and having a reasonable opportunityto avoid it,voluntarily
exposed
herself to the allegeddanger,thus wholly precludingor on a comparative basis,reducing any
recovery by Plaintiff againstDefendant in this action.
4. Defendant is not responsiblefor the conduct of negligentnon-parties,
i.e.,her
allegedattackers that assaulted her, and is entitled to have its proportionateshare of liability,
if
any, determined in lightof the conduct of negligentnon-partieswhose names may appear on the
verdict form pursuant to § 768.81, Fla. Stat. and Fabre v. Marin, 613 So.2d 1182 (Fla.1993).
Defendant reserves the rightto supplement and/or amend this defense after additional discovery.
5. Defendant affirmatively iftrue,were
avers that the damages allegedby the Plaintiff,
caused by the intervening, negligenceof other parties,
superseding, persons, or entities, her
i.e.,
alleged attackers that assaulted her, whether named in this or not, over which the
litigation
Defendant had no control,and as such, any cause of action againstDefendant should be barred or
damages should be reduced in proportionto the negligenceof such third-party
in accordance with
§ 768.81, Florida Statutes and Fabre v. Marin, 613 So.2d 1182 (Fla. 1993). As discovery is
ongoing,Defendant reserves the rightto amend this affirmative defense to specifically the
identify
not named
names of the third-parties in this lawsuit who proximately caused or contributed to
Plaintiff's complained of damages.
6. Plaintiff's claims are barred, in whole or in part, because any injuries
and damages
claimed in the Complaint were the result of an independent interveningand supersedingcause
rather than any act or omission of Defendant. The independent,interveningand supersedingcause
and damages allegedlysustained by the Plaintiffwere,upon information and belief,
of any injuries
an unforeseeable force of nature.
7. Defendant is entitled to a setoff for any and all collateral source benefits paid to,
for and/or on behalf ofPlaintiffor are payable or available to, for and/or on behalf of said Plaintiff.
Such collateral source benefits must be deducted from the jury verdict,if any, againstDefendant.
8 To at the time and place of the
the extent that discovery reveals the Plaintiff,
incident allegedin Plaintiff's Complaint, was under the influence of alcohol or drugs, or to the
extent that Plaintiff's normal faculties were impaired,or the Plaintiff had a blood alcohol level o f
0.08 percent or higher,Plaintiff's claim for damages is barred pursuant to § 768.36, Fla. Stat.
9- Plaintiff's damages, if any, were not caused by the actions and/or inactions of the
Defendant.
10. Defendant states that Plaintiff's claims are barred, in whole or in part, to the extent
that she has failed to joinpartiesnecessary and indispensableto this action,includingthe alleged
attackers that assaulted her.
11. Defendant states at the time and placecomplained of,there is no evidence that any
and/or securitywould have been followed or would have
warnings,fencing or barricades,lighting,
preventedthe allegedinjuryas described in the Complaint.
12. Defendant states that the incident as described in the Complaint was totally
unforeseeable to this Defendant and, therefore,this Defendant had no duty or opportunityto take
steps to prevent the allegedincident.
13. Plaintiff's claims are barred, in whole or in part, as Defendant denies having active
or constructive knowledge of the dangerous conditions that allegedlycaused the subjectincident
and therefore could not have taken action to remedy it.
14. There was no nexus between Plaintiff' s damages and any allegednegligenceon the
part o f De fendant, and therefore,this action should fail due to the absence o f proximate cause.
15. Defendant states that it is not liable for the conduct of another who may have caused
injury of the Plaintiff,
in that this Defendant had no notice of the danger involved nor an
opportunityto protect againstsuch danger.
16. Defendant states that its knowledge of any allegeddanger was in no way superior
to that o f Plaintiff's own knowledge and, therefore,no duty to warn arose.
17. The allegedsubjectincident could not have been foreseen.
18. The incident as described in Plaintiff's Complaint did not occur with regularity,
and
thus was not fbreseeable.
19. Plaintiff failed to exercise reasonable care and diligenceto mitigatethe injuriesand
damages allegedin the Complaint; as a result,any recovery by Plaintiff must be apportionedin
direct proportionto such failure to mitigatein accordance with applicablelaw.
20. To the extent that discoveryreveals that Plaintiff was not an invitee,Defendant
states that Plaintiff was not an invitee and, therefore,the duties owed to Plaintiff are not those as
stated in the Complaint.
21. Defendant states that it has no duty to protect an invitee on its property from
criminal attack by a person over whom he has no control because the criminal act was not
foreseeable.
22. Defendant states that it had no knowledge of the dangerous propensitiesof
Plaintiff's assailants and/or attackers that allegedlyassaulted her.
23. Defendant states that its opportunityto protect the risk of harm which allegedly
occurred to Plaintiffin this case was entirely unexpected and quicknature
lackingdue to the totally
of the action by Plaintiff and the that assaulter her, and as a matter of law the
legalcause of the Plaintiff's cannot be attributed to
injuries this Defendant.
24. To the extent that discoveryreveals that this action arose from injurysustained by
a partic*antduringthe commission or attemptedcommission of a forcible felony as defined in §
776.08, Fla. Stat.,and to the extent that a forcible felony is proven, Plaintiff's claims are barred
pursuant to §766.085, Fla. Stat.,and Defendant shall be awarded its reasonable attorneys'fees as
the prevailing
party.
25. Any disability, are a result of
disfigurementor injuryclaims allegedby Plaintiff,
and were not caused or
condition or were caused by a subsequentinjuryor injuries
apre-existing
aggravatedby any allegedacts of negligenceof Defendant or by any third parties.
26. The Plaintiff expressly assumed the risk incident to the activitythat she was
in
partic*ating at the time ofthe allegedincident,which was open and obvious. Accordingly,any
claim for damages sought by the Plaintiff is either barred or reduced by the express assumption of
risk o f the Plaintiff.
27. The injuryand incident complained of occurred despiteadequate and reasonable
securityprecautions.
RESERVATION OF RIGHT TO ASSERT DEFENSES
Defendant allegesthat it may have additional defenses or claims available to them, of
which Defendant is not now aware. Defendant reserves the rightto assert additional defenses or
claims as
cross-claims,counterclaims, or third-party may be revealed to be appropriatethrough
discoveryor otherwise.
JURY DEMAND
Defendant demands trial by jury on all issues so triable.
DATED this 26 -th
day of October, 2021.
ANDERSONGLENN LLP
s/.John .J. Glenn
John J. Glenn, Esq.
Florida Bar No.. 957860
jglenn@asglaw.com
2650 North MilitaryTrail,Suite 430
Boca Raton, Florida 33341
Tel.: (561) 893-9192
Fax: (561) 893-9194
CERTIFICATE OF SERVICE
I HEREBY CERTIFY on this 26111day of October, 2021, I electronically
that filed the
foregoingdocument with the Clerk of the Court using Florida Court's E-FilingPortal and certify
that all counsel of record have been served via transmission of Notice of Electronic Filing
generatedby Florida Court E-FilingPortal or in some other authorized manner for those counsel
or partieswho are not authorized to receive electronically
Notices of Electronic Filing.
s/.John .J. Glenn
John J. Glenn, Esquire
Preview
Filing# 137324494 E-Filed 10/26/2021 05:11:00 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE-21-016578 JOY FURER, Plaintiff. V GG RE HOLLYWOOD BEACH 613 LLC, Defendant. i DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT Defendant, GG RE HOLLYWOOD BEACH 613 LLC, by and through its undersigned counsel and pursuant to Florida Rule o f Civil Procedure 1.140, hereby files its Answer and Affirmative Defenses to Plaintiff's Complaint, and states: ALLEGATIONS AS TO ALL COUNTS 1. Denied. 2. Denied. 3 Denied. 4. Denied. 5. Denied. 6. Denied. 7. Denied. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 10/26/2021 05:11:00 PM.**** COUNTI 8 Defendant re-allegesand re-avers its responses and statements contained in paragraphs 1 though 7 as if fullyset forth herein. 9- Denied. 10. Denied. 11. Denied. 12. Denied. 13. Denied. 14. Denied (a-u). 15. Denied. 16. Denied. 17. Denied. 18. Denied (a-d). 19. Denied. DEFENDANT'S AFFIRMATIVE DEFENSES 1. Defendant denies that Plaintiff's injurieswere the result of negligence by the Defendant. 2. Defendant states at the time and place complained of Plaintiff was guilty of negligence,which negligence was the legalcause of or contributed to the incident complained of, and to the extent of such negligence,the Plaintiff is barred and estopped from any recovery in this cause or, in the any recovery had must be reduced in accordance with the principles alternative, of comparativenegligencepursuant to § 768.81, Fla. Stat. 3 Plaintiff knew of the existence of the alleged danger complained of in the Complaint (theexistence of which is denied),realized and appreciatedthe possibility of injuryas a result of the allegeddanger and having a reasonable opportunityto avoid it,voluntarily exposed herself to the allegeddanger,thus wholly precludingor on a comparative basis,reducing any recovery by Plaintiff againstDefendant in this action. 4. Defendant is not responsiblefor the conduct of negligentnon-parties, i.e.,her allegedattackers that assaulted her, and is entitled to have its proportionateshare of liability, if any, determined in lightof the conduct of negligentnon-partieswhose names may appear on the verdict form pursuant to § 768.81, Fla. Stat. and Fabre v. Marin, 613 So.2d 1182 (Fla.1993). Defendant reserves the rightto supplement and/or amend this defense after additional discovery. 5. Defendant affirmatively iftrue,were avers that the damages allegedby the Plaintiff, caused by the intervening, negligenceof other parties, superseding, persons, or entities, her i.e., alleged attackers that assaulted her, whether named in this or not, over which the litigation Defendant had no control,and as such, any cause of action againstDefendant should be barred or damages should be reduced in proportionto the negligenceof such third-party in accordance with § 768.81, Florida Statutes and Fabre v. Marin, 613 So.2d 1182 (Fla. 1993). As discovery is ongoing,Defendant reserves the rightto amend this affirmative defense to specifically the identify not named names of the third-parties in this lawsuit who proximately caused or contributed to Plaintiff's complained of damages. 6. Plaintiff's claims are barred, in whole or in part, because any injuries and damages claimed in the Complaint were the result of an independent interveningand supersedingcause rather than any act or omission of Defendant. The independent,interveningand supersedingcause and damages allegedlysustained by the Plaintiffwere,upon information and belief, of any injuries an unforeseeable force of nature. 7. Defendant is entitled to a setoff for any and all collateral source benefits paid to, for and/or on behalf ofPlaintiffor are payable or available to, for and/or on behalf of said Plaintiff. Such collateral source benefits must be deducted from the jury verdict,if any, againstDefendant. 8 To at the time and place of the the extent that discovery reveals the Plaintiff, incident allegedin Plaintiff's Complaint, was under the influence of alcohol or drugs, or to the extent that Plaintiff's normal faculties were impaired,or the Plaintiff had a blood alcohol level o f 0.08 percent or higher,Plaintiff's claim for damages is barred pursuant to § 768.36, Fla. Stat. 9- Plaintiff's damages, if any, were not caused by the actions and/or inactions of the Defendant. 10. Defendant states that Plaintiff's claims are barred, in whole or in part, to the extent that she has failed to joinpartiesnecessary and indispensableto this action,includingthe alleged attackers that assaulted her. 11. Defendant states at the time and placecomplained of,there is no evidence that any and/or securitywould have been followed or would have warnings,fencing or barricades,lighting, preventedthe allegedinjuryas described in the Complaint. 12. Defendant states that the incident as described in the Complaint was totally unforeseeable to this Defendant and, therefore,this Defendant had no duty or opportunityto take steps to prevent the allegedincident. 13. Plaintiff's claims are barred, in whole or in part, as Defendant denies having active or constructive knowledge of the dangerous conditions that allegedlycaused the subjectincident and therefore could not have taken action to remedy it. 14. There was no nexus between Plaintiff' s damages and any allegednegligenceon the part o f De fendant, and therefore,this action should fail due to the absence o f proximate cause. 15. Defendant states that it is not liable for the conduct of another who may have caused injury of the Plaintiff, in that this Defendant had no notice of the danger involved nor an opportunityto protect againstsuch danger. 16. Defendant states that its knowledge of any allegeddanger was in no way superior to that o f Plaintiff's own knowledge and, therefore,no duty to warn arose. 17. The allegedsubjectincident could not have been foreseen. 18. The incident as described in Plaintiff's Complaint did not occur with regularity, and thus was not fbreseeable. 19. Plaintiff failed to exercise reasonable care and diligenceto mitigatethe injuriesand damages allegedin the Complaint; as a result,any recovery by Plaintiff must be apportionedin direct proportionto such failure to mitigatein accordance with applicablelaw. 20. To the extent that discoveryreveals that Plaintiff was not an invitee,Defendant states that Plaintiff was not an invitee and, therefore,the duties owed to Plaintiff are not those as stated in the Complaint. 21. Defendant states that it has no duty to protect an invitee on its property from criminal attack by a person over whom he has no control because the criminal act was not foreseeable. 22. Defendant states that it had no knowledge of the dangerous propensitiesof Plaintiff's assailants and/or attackers that allegedlyassaulted her. 23. Defendant states that its opportunityto protect the risk of harm which allegedly occurred to Plaintiffin this case was entirely unexpected and quicknature lackingdue to the totally of the action by Plaintiff and the that assaulter her, and as a matter of law the legalcause of the Plaintiff's cannot be attributed to injuries this Defendant. 24. To the extent that discoveryreveals that this action arose from injurysustained by a partic*antduringthe commission or attemptedcommission of a forcible felony as defined in § 776.08, Fla. Stat.,and to the extent that a forcible felony is proven, Plaintiff's claims are barred pursuant to §766.085, Fla. Stat.,and Defendant shall be awarded its reasonable attorneys'fees as the prevailing party. 25. Any disability, are a result of disfigurementor injuryclaims allegedby Plaintiff, and were not caused or condition or were caused by a subsequentinjuryor injuries apre-existing aggravatedby any allegedacts of negligenceof Defendant or by any third parties. 26. The Plaintiff expressly assumed the risk incident to the activitythat she was in partic*ating at the time ofthe allegedincident,which was open and obvious. Accordingly,any claim for damages sought by the Plaintiff is either barred or reduced by the express assumption of risk o f the Plaintiff. 27. The injuryand incident complained of occurred despiteadequate and reasonable securityprecautions. RESERVATION OF RIGHT TO ASSERT DEFENSES Defendant allegesthat it may have additional defenses or claims available to them, of which Defendant is not now aware. Defendant reserves the rightto assert additional defenses or claims as cross-claims,counterclaims, or third-party may be revealed to be appropriatethrough discoveryor otherwise. JURY DEMAND Defendant demands trial by jury on all issues so triable. DATED this 26 -th day of October, 2021. ANDERSONGLENN LLP s/.John .J. Glenn John J. Glenn, Esq. Florida Bar No.. 957860 jglenn@asglaw.com 2650 North MilitaryTrail,Suite 430 Boca Raton, Florida 33341 Tel.: (561) 893-9192 Fax: (561) 893-9194 CERTIFICATE OF SERVICE I HEREBY CERTIFY on this 26111day of October, 2021, I electronically that filed the foregoingdocument with the Clerk of the Court using Florida Court's E-FilingPortal and certify that all counsel of record have been served via transmission of Notice of Electronic Filing generatedby Florida Court E-FilingPortal or in some other authorized manner for those counsel or partieswho are not authorized to receive electronically Notices of Electronic Filing. s/.John .J. Glenn John J. Glenn, Esquire