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Filing # 145460220 E-Filed 03/10/2022 12:57:47 PM
IN THE CIRCUIT COURT OF THE 11th
JUDICIAL CIRCUIT IN AND FOR
MIAMI DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 2021-023131-CA-01
ANA CESAR,
PLAINTIFF,
v.
WALMART INC.,
DEFENDANT.
_____________________________________/
DEFENDANT, WALMART INC.’S (“WALMART”) ANSWER AND AFFIRMATIVE
DEFENSES TO PLAINTIFF’S AMENDED COMPLAINT AND DEMAND FOR JURY
COMES NOW Defendant, WALMART INC. (hereinafter “WALMART), by and through
undersigned counsel, and in response to the Amended Complaint of the Plaintiff, ANA CESAR,
herein files this its Answer, Affirmative Defenses and Demand for Jury Trial, and says:
INTRODUCTION
1. The allegations of this paragraph constitute Plaintiff's characterization of the action and
conclusions of law to which no response is required. To the extent a response is required,
WALMART denies the allegations contained in this paragraph.
JURISDICTION AND VENUE
2. The allegations of this paragraph constitute Plaintiff's characterization of the action
and conclusions of law to which no response is required. To the extent a response is required,
WALMART denies the allegations contained in this paragraph.
3. WALMART denies the allegations of this paragraph and strict proof thereof is
hereby demanded.
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4. WALMART denies the allegations of this paragraph and strict proof thereof is
hereby demanded.
5. The allegations of this paragraph constitute Plaintiff's characterization of the action
and conclusions of law to which no response is required. To the extent a response is required,
WALMART denies the allegations contained in this paragraph.
COUNT I
NEGLIGENT FAILURE TO MAINTAIN
WALMART restates and reincorporates its responses to Paragraphs 1 through 5, as if fully
set forth herein.
6. WALMART denies the allegations of this paragraph and strict proof thereof is
hereby demanded.
7. WALMART denies the allegations of this paragraph and strict proof thereof is
hereby demanded.
8. WALMART denies the allegations of this paragraph and strict proof thereof is
hereby demanded.
9. WALMART denies the allegations of this paragraph and strict proof thereof is
hereby demanded.
10. WALMART denies the allegations of this paragraph and strict proof thereof is
hereby demanded.
11. WALMART denies the allegations of this paragraph and strict proof thereof is
hereby demanded.
12. WALMART denies the allegations of this paragraph and strict proof thereof is
hereby demanded.
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13. WALMART denies the allegations of this paragraph and strict proof thereof is
hereby demanded.
14. WALMART denies the allegations of this paragraph as phrased and strict proof
thereof is hereby demanded.
15. WALMART denies the allegations of this paragraph and strict proof thereof is
hereby demanded.
16. WALMART denies the allegations of this paragraph and strict proof thereof is
hereby demanded.
17. WALMART denies the allegations of this paragraph and strict proof thereof is
hereby demanded.
Allegations that have not been specifically responded to by WALMART are hereby denied
and strict proof is hereby demanded.
WHEREFORE, Defendant, WALMART INC., prays this Court enter judgment against
Plaintiff for costs and damages in favor of WALMART, INC., and such other relief this Court
deems appropriate and further demands trial by jury of all issues so triable as a matter of right.
COUNT II
NEGLIGENT FAILURE TO WARN
WALMART restates and reincorporates itsresponses to Paragraphs 1 through 17, as if
fully set forth herein.
18. WALMART denies the allegations of this paragraph and strict proof thereof is
hereby demanded.
19. WALMART denies the allegations of this paragraph and strict proof thereof is
hereby demanded.
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20. WALMART denies the allegations of this paragraph and strict proof thereof is
hereby demanded.
21. WALMART denies the allegations of this paragraph and strict proof thereof is
hereby demanded.
22. WALMART denies the allegations of this paragraph and strict proof thereof is
hereby demanded.
23. WALMART denies the allegations of this paragraph and strict proof thereof is
hereby demanded.
24. WALMART denies the allegations of this paragraph and strict proof thereof is
hereby demanded.
25. WALMART denies the allegations of this paragraph and strict proof thereof is
hereby demanded.
26. WALMART denies the allegations of this paragraph and strict proof thereof is
hereby demanded.
27. WALMART denies the allegations of this paragraph and strict proof thereof is
hereby demanded.
28. WALMART denies the allegations of this paragraph and strict proof thereof is
hereby demanded.
29. WALMART denies the allegations of this paragraph and strict proof thereof is
hereby demanded.
Allegations that have not been specifically responded to by WALMART are hereby denied
and strict proof is hereby demanded.
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WHEREFORE, Defendant, WALMART INC., prays this Court enter judgment against
Plaintiff for costs and damages in favor of WALMART, INC., and such other relief this Court
deems appropriate and further demands trial by jury of all issues so triable as a matter of right.
AFFIRMATIVE DEFENSES
1. Pursuant to applicable Florida Statutes, the Defendant is entitled to a credit or set-
off in this action for any of Plaintiff's damages for which any collateral source benefits are paid or
are payable.
2. Plaintiff was negligent and such negligence proximately caused or contributed to
the accident and damages complained of and Plaintiff is barred by Doctrine of Comparative
Negligence from recovery herein to the extent of said negligence.
3. Plaintiff has failed to state a cause of action upon which relief can be granted.
4. Plaintiff has failed to mitigate the damages claimed, and as such, Plaintiff's
recovery, if any, should be reduced by the amount the damages complained of could have been
lessened.
5. Plaintiff’s injuries, if any, are not permanent, and therefore, Plaintiff is not entitled
to compensation for pain and suffering.
6. Defendant denies that there was any defect or unsafe condition, but if same did
exist, then it was open and obvious.
7. Defendant affirmatively asserts that the premises are maintained in a reasonably
safe condition and they exercised reasonable policies and procedures for maintenance of the area;
Plaintiff is therefore not entitled to any evidentiary or other presumptions at trial.
8. Any loss or injury sustained by the Plaintiff is the result of acts or omissions of
third parties for whom this Defendant is not responsible in fact or at law.
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9. Pursuant to Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), and Fla. Stat. §768.81,
the Defendants reserve the right to place parties and non-parties on the verdict form at trial as
potential joint tortfeasors, and said tortfeasors’ fault is a causal or contributing factor with regard
to the subject incident and/or led to damages allegedly sustained by the Plaintiff.
10. To the extent the evidence proves that the Plaintiff has failed to preserve, maintain
and or retain crucial evidence in this case and/or has destroyed evidence to the prejudice of the
Defendant, Plaintiff’s claims should be barred in whole or in part.
11. Any injuries or damages alleged to have been sustained by the Plaintiff were, upon
information and belief, preexisting, and/or caused by something other than the subject incident at
issue in this case, and any corresponding medical treatment following said incident, was unrelated
to the accident alleged in the Complaint. Further, if the Plaintiff, ANA CESAR, was injured on
the property, liability extends only to the aggravation of her pre-existing conditions.
12. Plaintiff’s alleged injuries and damages are the result of incidents at other times and
places over which the Defendant had no control, including, but not limited to, prior and subsequent
accidents or incidents, so that Plaintiff is barred from recovery herein.
13. Certain medical expenses allegedly incurred by Plaintiff as a result of the accident
referred to in Plaintiff’s Complaint were submitted by or on behalf of the Plaintiff to Plaintiff’s
health insurance company and/or Medicare for payment, and as a result, payments were made at
legally and/or contractually discounted rates and said payments have fully satisfied any legal
obligations of the Plaintiff to pay the medical providers for such expenses. As a result, Plaintiff
has not been damaged and may not recover to the extent of any legal and/or contractual discounts.
14. Plaintiff is only entitled to recover the reasonable value of medical care and services
resulting from any alleged damages caused by the negligence of another and the reasonable value
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of medical care and services is limited to the amount accepted as payment in full for medical
services by the person or entity that provided the Plaintiff with such services.
15. The Defendant alleges that there is no cause of cation as the Defendant had no
actual or constructive notice of any alleged dangerous condition which allegedly caused or
contributed to Plaintiff’s injuries and the alleged condition was not present for a sufficient amount
of time for the Defendant to take corrective action.
16. The Defendant did not breach any legal duty or standard of care owed to the
Plaintiff nor was any act and/or omission on its part the proximate cause of any damages alleged
in the Complaint.
17. Plaintiff has failed to state a cause of action for negligent failure to warn.
18. Plaintiff has failed to state a cause of action for negligent failure to maintain.
19. Defendant affirmatively alleges that, at the time of the subject incident, Plaintiff
was either a trespasser or an uninvited licensee and that the alleged negligence of the Defendant
was neither willful, nor wanton, nor intentional. Thus, pursuant to Nolan v. Roberts, 383 So. 2d
945 (Fla. 4th DCA 1980) and Porto v. Carlyle Plaza, Inc,. 971 So. 2d 940 (Fla. 3rd DCA 2007),
Plaintiff is precluded from making any recovery against Defendant.
20. Investigation and discovery are continuing, and the Defendant reserves the right to
amend this answer and to add other affirmative defenses, or to correct any allegations in the answer
once the facts have been fully known.
CERTIFICATE OF SERVICE
IT IS HEREBY CERTIFIED that a true and correct copy of the foregoing has been provided via
Florida’s e-filing portal and/or electronic mail on March 10, 2022, to: Jose Fuentes, Esq.,
Fuentes Law Firm PA, 8900 SW 107 Ave., Suite 210, Miami FL 33176
[jfuentes@thefuenteslawfirm.com].
MARSHALL DENNEHEY
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Attorneys for Defendant
2400 E. Commercial Blvd., Suite 1100
Fort Lauderdale, FL 33308
Telephone: 954-847-4920
Facsimile: 954-627-6640
By: /s/ D. Terrance Hill
Jessica A. Giesen, Esq.
Florida Bar No.: 1007674
D. Terrance Hill, Esq.
Florida Bar No.: 71971
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Filing # 145460220 E-Filed 03/10/2022 12:57:47 PM IN THE CIRCUIT COURT OF THE 11th JUDICIAL CIRCUIT IN AND FOR MIAMI DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO. 2021-023131-CA-01 ANA CESAR, PLAINTIFF, v. WALMART INC., DEFENDANT. _____________________________________/ DEFENDANT, WALMART INC.’S (“WALMART”) ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S AMENDED COMPLAINT AND DEMAND FOR JURY COMES NOW Defendant, WALMART INC. (hereinafter “WALMART), by and through undersigned counsel, and in response to the Amended Complaint of the Plaintiff, ANA CESAR, herein files this its Answer, Affirmative Defenses and Demand for Jury Trial, and says: INTRODUCTION 1. The allegations of this paragraph constitute Plaintiff's characterization of the action and conclusions of law to which no response is required. To the extent a response is required, WALMART denies the allegations contained in this paragraph. JURISDICTION AND VENUE 2. The allegations of this paragraph constitute Plaintiff's characterization of the action and conclusions of law to which no response is required. To the extent a response is required, WALMART denies the allegations contained in this paragraph. 3. WALMART denies the allegations of this paragraph and strict proof thereof is hereby demanded. 1 4. WALMART denies the allegations of this paragraph and strict proof thereof is hereby demanded. 5. The allegations of this paragraph constitute Plaintiff's characterization of the action and conclusions of law to which no response is required. To the extent a response is required, WALMART denies the allegations contained in this paragraph. COUNT I NEGLIGENT FAILURE TO MAINTAIN WALMART restates and reincorporates its responses to Paragraphs 1 through 5, as if fully set forth herein. 6. WALMART denies the allegations of this paragraph and strict proof thereof is hereby demanded. 7. WALMART denies the allegations of this paragraph and strict proof thereof is hereby demanded. 8. WALMART denies the allegations of this paragraph and strict proof thereof is hereby demanded. 9. WALMART denies the allegations of this paragraph and strict proof thereof is hereby demanded. 10. WALMART denies the allegations of this paragraph and strict proof thereof is hereby demanded. 11. WALMART denies the allegations of this paragraph and strict proof thereof is hereby demanded. 12. WALMART denies the allegations of this paragraph and strict proof thereof is hereby demanded. 2 13. WALMART denies the allegations of this paragraph and strict proof thereof is hereby demanded. 14. WALMART denies the allegations of this paragraph as phrased and strict proof thereof is hereby demanded. 15. WALMART denies the allegations of this paragraph and strict proof thereof is hereby demanded. 16. WALMART denies the allegations of this paragraph and strict proof thereof is hereby demanded. 17. WALMART denies the allegations of this paragraph and strict proof thereof is hereby demanded. Allegations that have not been specifically responded to by WALMART are hereby denied and strict proof is hereby demanded. WHEREFORE, Defendant, WALMART INC., prays this Court enter judgment against Plaintiff for costs and damages in favor of WALMART, INC., and such other relief this Court deems appropriate and further demands trial by jury of all issues so triable as a matter of right. COUNT II NEGLIGENT FAILURE TO WARN WALMART restates and reincorporates itsresponses to Paragraphs 1 through 17, as if fully set forth herein. 18. WALMART denies the allegations of this paragraph and strict proof thereof is hereby demanded. 19. WALMART denies the allegations of this paragraph and strict proof thereof is hereby demanded. 3 20. WALMART denies the allegations of this paragraph and strict proof thereof is hereby demanded. 21. WALMART denies the allegations of this paragraph and strict proof thereof is hereby demanded. 22. WALMART denies the allegations of this paragraph and strict proof thereof is hereby demanded. 23. WALMART denies the allegations of this paragraph and strict proof thereof is hereby demanded. 24. WALMART denies the allegations of this paragraph and strict proof thereof is hereby demanded. 25. WALMART denies the allegations of this paragraph and strict proof thereof is hereby demanded. 26. WALMART denies the allegations of this paragraph and strict proof thereof is hereby demanded. 27. WALMART denies the allegations of this paragraph and strict proof thereof is hereby demanded. 28. WALMART denies the allegations of this paragraph and strict proof thereof is hereby demanded. 29. WALMART denies the allegations of this paragraph and strict proof thereof is hereby demanded. Allegations that have not been specifically responded to by WALMART are hereby denied and strict proof is hereby demanded. 4 WHEREFORE, Defendant, WALMART INC., prays this Court enter judgment against Plaintiff for costs and damages in favor of WALMART, INC., and such other relief this Court deems appropriate and further demands trial by jury of all issues so triable as a matter of right. AFFIRMATIVE DEFENSES 1. Pursuant to applicable Florida Statutes, the Defendant is entitled to a credit or set- off in this action for any of Plaintiff's damages for which any collateral source benefits are paid or are payable. 2. Plaintiff was negligent and such negligence proximately caused or contributed to the accident and damages complained of and Plaintiff is barred by Doctrine of Comparative Negligence from recovery herein to the extent of said negligence. 3. Plaintiff has failed to state a cause of action upon which relief can be granted. 4. Plaintiff has failed to mitigate the damages claimed, and as such, Plaintiff's recovery, if any, should be reduced by the amount the damages complained of could have been lessened. 5. Plaintiff’s injuries, if any, are not permanent, and therefore, Plaintiff is not entitled to compensation for pain and suffering. 6. Defendant denies that there was any defect or unsafe condition, but if same did exist, then it was open and obvious. 7. Defendant affirmatively asserts that the premises are maintained in a reasonably safe condition and they exercised reasonable policies and procedures for maintenance of the area; Plaintiff is therefore not entitled to any evidentiary or other presumptions at trial. 8. Any loss or injury sustained by the Plaintiff is the result of acts or omissions of third parties for whom this Defendant is not responsible in fact or at law. 5 9. Pursuant to Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), and Fla. Stat. §768.81, the Defendants reserve the right to place parties and non-parties on the verdict form at trial as potential joint tortfeasors, and said tortfeasors’ fault is a causal or contributing factor with regard to the subject incident and/or led to damages allegedly sustained by the Plaintiff. 10. To the extent the evidence proves that the Plaintiff has failed to preserve, maintain and or retain crucial evidence in this case and/or has destroyed evidence to the prejudice of the Defendant, Plaintiff’s claims should be barred in whole or in part. 11. Any injuries or damages alleged to have been sustained by the Plaintiff were, upon information and belief, preexisting, and/or caused by something other than the subject incident at issue in this case, and any corresponding medical treatment following said incident, was unrelated to the accident alleged in the Complaint. Further, if the Plaintiff, ANA CESAR, was injured on the property, liability extends only to the aggravation of her pre-existing conditions. 12. Plaintiff’s alleged injuries and damages are the result of incidents at other times and places over which the Defendant had no control, including, but not limited to, prior and subsequent accidents or incidents, so that Plaintiff is barred from recovery herein. 13. Certain medical expenses allegedly incurred by Plaintiff as a result of the accident referred to in Plaintiff’s Complaint were submitted by or on behalf of the Plaintiff to Plaintiff’s health insurance company and/or Medicare for payment, and as a result, payments were made at legally and/or contractually discounted rates and said payments have fully satisfied any legal obligations of the Plaintiff to pay the medical providers for such expenses. As a result, Plaintiff has not been damaged and may not recover to the extent of any legal and/or contractual discounts. 14. Plaintiff is only entitled to recover the reasonable value of medical care and services resulting from any alleged damages caused by the negligence of another and the reasonable value 6 of medical care and services is limited to the amount accepted as payment in full for medical services by the person or entity that provided the Plaintiff with such services. 15. The Defendant alleges that there is no cause of cation as the Defendant had no actual or constructive notice of any alleged dangerous condition which allegedly caused or contributed to Plaintiff’s injuries and the alleged condition was not present for a sufficient amount of time for the Defendant to take corrective action. 16. The Defendant did not breach any legal duty or standard of care owed to the Plaintiff nor was any act and/or omission on its part the proximate cause of any damages alleged in the Complaint. 17. Plaintiff has failed to state a cause of action for negligent failure to warn. 18. Plaintiff has failed to state a cause of action for negligent failure to maintain. 19. Defendant affirmatively alleges that, at the time of the subject incident, Plaintiff was either a trespasser or an uninvited licensee and that the alleged negligence of the Defendant was neither willful, nor wanton, nor intentional. Thus, pursuant to Nolan v. Roberts, 383 So. 2d 945 (Fla. 4th DCA 1980) and Porto v. Carlyle Plaza, Inc,. 971 So. 2d 940 (Fla. 3rd DCA 2007), Plaintiff is precluded from making any recovery against Defendant. 20. Investigation and discovery are continuing, and the Defendant reserves the right to amend this answer and to add other affirmative defenses, or to correct any allegations in the answer once the facts have been fully known. CERTIFICATE OF SERVICE IT IS HEREBY CERTIFIED that a true and correct copy of the foregoing has been provided via Florida’s e-filing portal and/or electronic mail on March 10, 2022, to: Jose Fuentes, Esq., Fuentes Law Firm PA, 8900 SW 107 Ave., Suite 210, Miami FL 33176 [jfuentes@thefuenteslawfirm.com]. MARSHALL DENNEHEY 7 Attorneys for Defendant 2400 E. Commercial Blvd., Suite 1100 Fort Lauderdale, FL 33308 Telephone: 954-847-4920 Facsimile: 954-627-6640 By: /s/ D. Terrance Hill Jessica A. Giesen, Esq. Florida Bar No.: 1007674 D. Terrance Hill, Esq. Florida Bar No.: 71971 8