Proof of Service: Veronawalk Homeowners Association Inc Vs Southwest Property Management Corporation

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                Filing # 51392926 E-Filed 01/19/2017 04:25:14 PM

4055-8
IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
JAMES REDIC, CIRCUIT CIVIL DIVISION
Plaintiff, CASE NO. 2016-CA-002292

VS.

VERONAWALK HOMEOWNERS
ASSOCIATION, INC.,

Defendant.
/

DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT

Defendant VERONAWALK HOMEOWNERS ASSOCIATION, INC. (hereinafter
“DEFENDANT”), by and through the undersigned counsel, files this Answer and Affirmative
Defenses to the Plaintiff's Complaint served December 30, 2016, and states as follows:

1. DEFENDANT admits the allegations in Paragraph 1 for purposes of jurisdiction
only; otherwise denied and DEFENDANT demands strict proof thereof.

2. DEFENDANT is without knowledge as to the allegations contained in Paragraph
2, and therefore denies same and demands strict proof thereof.

3. DEFENDANT admits the allegations in Paragraph 3.

4. DEFENDANT admits the allegations in Paragraph 4.

5. DEFENDANT admits the allegations in Paragraph 5.

6. DEFENDANT is without knowledge as to the allegations contained in Paragraph
6, and therefore denies same and demands strict proof thereof.

7. DEFENDANT is without knowledge as to the allegations contained in Paragraph

7, and therefore denies same and demands strict proof thereof.

FILED: COLLIER COUNTY, DWIGHT E. BROCK, CLERK, 01/21/2017 12:09:54 PMCASE NO. 2016-CA-002292

8. DEFENDANT admits only those duties imposed by law, denies that Plaintiff has
accurately characterized such duties in Paragraph 8, and therefore denes same and demands strict
proof thereof.

9. DEFENDANT is without knowledge as to the allegations contained in Paragraph
9, and therefore denies same and demands strict proof thereof.

10. | DEFENDANT denies the allegations in Paragraph 10 and demands strict proof
thereof.

11. | DEFENDANT denies the allegations in Paragraph 11 and demands strict proof
thereof.

12. | DEFENDANT denies the allegations in Paragraph 12 and demands strict proof
thereof.

13. | DEFENDANT denies the allegations in Paragraph 13 and demands strict proof
thereof.

14. | DEFENDANT denies the allegations in Paragraph 14 and demands strict proof
thereof.

15. | DEFENDANT denies the allegations in Paragraph 15 and demands strict proof
thereof.

16. | DEFENDANT denies the allegations in Paragraph 16 and demands strict proof
thereof.

17. DEFENDANT denies the allegations in Paragraph 17 and demands strict proof

thereof.CASE NO. 2016-CA-002292

18. DEFENDANT admits the allegations in Paragraph 18 for purposes of jurisdiction

only; otherwise denied and DEFENDANT demands strict proof thereof.
AFFIRMATIVE DEFENSES

1. DEFENDANT affirmatively asserts that Plaintiff was guilty of negligence and
Plaintiffs negligence was the sole, proximate or contributing cause of the damages complained
of, and the recovery, if any, should be barred or reduced proportionately pursuant to the doctrine
of comparative negligence.

2. DEFENDANT affirmatively asserts, without admitting any liability whatsoever to
Plaintiff, that in the event that Plaintiff should recover on the claims, DEFENDANT would be
entitled to any credit and set-off of any and all collateral source benefits either paid or payable
for any damages alleged in the Complaint from any collateral source whatsoever pursuant to the
provisions of Florida Statutes §768.76.

3. DEFENDANT affirmatively asserts that at all times material to the Complaint,
Plaintiff knew, or in the exercise of reasonable care, should have known and/or discovered the
potential hazards and dangers alleged in the Complaint and Plaintiff voluntarily chose to remain
exposed to the potential hazards and dangers for which Plaintiff now complains and, therefore,
Plaintiff is barred from recovery against this DEFENDANT as she assumed the risk.

4. DEFENDANT affirmatively asserts that any alleged negligence that caused or
contributed to Plaintiff's alleged injuries was solely the result of negligence on the part of third
parties who were not under the care, custody, control, or supervision of this DEFENDANT and
this DEFENDANT is not legally responsible for those who acted as separate and distinct causes,

or intervening causes and, therefore, Plaintiff cannot recover against this DEFENDANT.CASE NO. 2016-CA-002292

Further, DEFENDANT reserves the right to amend this Answer and Affirmative Defenses

pursuant to Nash v. Wells Fargo Guard Services, Inc., 678. So.2d 1262 (Fla. 1996) and the

Fabre doctrine and Florida Statute §768.81 and, therefore, reserves the right to place others who
may be determined to be liable as discovery progresses on the verdict form in this cause at the
time of trial.

5. DEFENDANT affirmatively asserts that Plaintiff failed to mitigate damages as
required under Florida law and any such recovery should be proportionately reduced as a result
of this failure.

6. DEFENDANT affirmatively asserts that it had no knowledge, actual notice, or
constructive notice of the alleged danger, condition or defect.

7. DEFENDANT affirmatively asserts that they had no duty to warn or provide
notice to Plaintiff of open and obvious conditions on the premises or property.

8. DEFENDANT affirmatively asserts that any conditions on the property which
might have caused or contributed to Plaintiffs injuries claimed herein, were neither latent nor
hidden from Plaintiff. Rather, said conditions were open and obvious, and that Plaintiffs
inattention was the sole cause of the alleged incident.

9. DEFENDANT affirmatively asserts that Plaintiff's damages, if any, were caused
by objects, forces and/or independent intervening acts for which this DEFENDANT had no
control, including, but not limited to an Act of God.

10. DEFENDANT affirmatively asserts that the alleged injuries suffered by Plaintiff

were the result of the natural and inexorable process of pre-existing medical conditions orCASE NO. 2016-CA-002292

injuries, and/or human disease, and/or unique physiology of the Plaintiff rather than as a result of
any act or omission on the part of this DEFENDANT.

11. DEFENDANT affirmatively asserts that Plaintiff's damages, if any, for past
medical expenses are limited to that amount actually paid or owed to the health care providers,
and specifically, are not equal to the amounts charged by those health care providers.

12. | DEFENDANT did not owe the alleged duties to Plaintiff to the extent that the
incident did not occur on DEFENDANT’S property.

13. | DEFENDANT affirmatively asserts that the Complaint fails to state a cause of
action for which relief can be granted.

14. | DEFENDANT reserves the right to amend its Answer to add additional
affirmative defenses as discovery progresses.

DEMAND FOR JURY TRIAL

DEFENDANT hereby demands a trial by jury of all issues triable as of right by a jury.

WHEREFORE, DEFENDANT VERONAWALK HOMEOWNERS ASSOCIATION,
INC., respectfully requests that this Honorable Court enter a judgment in its favor and against
Plaintiff, JAMES REDIC, and enter an Order dismissing Plaintiffs claims, awarding to
DEFENDANT its attorneys’ fees and costs incurred in defending this matter, and award any

further relief deemed just and equitable.CASE NO. 2016-CA-002292

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a copy hereof has been electronically served via Florida

ePortal to: CHAD T. BRAZZEAL, ESQUIRE, cbrazzeal@forthepeople.com; on this19th day
of January, 2017.

4S/ MICHAEL C. SHUE, ESQUIRE _

Kevin W. Crews, Esquire

Florida Bar No: 31887

Michael C. Shue, Esquire

Florida Bar No: 29550

WICKER SMITH O'HARA McCOY & FORD, P.A.
Attorneys for Defendant, Veronawalk Homeowners
Association, Inc.

9128 Strada Place, Suite 10200

Naples, FL 34108

Telephone: (239) 552-5300

Facsimile: (239) 552-5399

Email: NAPertpleadings@wickersmith.com