Preview
Filing # 164865550 E-Filed 01/17/2023 02:19:55 PM
IN THE CIRCUIT COURT, FIFTH
JUDICIAL CIRCUIT, IN AND FOR LAKE
COUNTY, FLORIDA
CASE NO.: 2022-CA-002134
MELISSA MAGLIO,
an individual,
Plaintiff,
vs.
DOLGENCORP, LLC,
a Foreign Limited Liability Company
Defendant.
/
DEFENDANT DOLGENCORP, LLC’S ANSWER
AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT
COMES NOW the Defendant, DOLGENCORP, LLC (hereinafter “DOLGENCORP”), by
and through its undersigned counsel, hereby files this Answer to the Complaint of the Plaintiff,
MELISSA MAGLIO, and denies each and every allegation not specifically admitted herein,
asserts the following Affirmative Defenses, and states as follows:
1 Admitted for jurisdictional purposes only; otherwise, said allegations are denied.
2 Admitted that Defendant DOLGENCORP, at all times material hereto, operated the
store located at 395 East Burleigh Blvd., in Tavares, Florida; otherwise, said allegations are denied.
3 Denied.
4 Denied.
Denied.
Denied.
FILED: LAKE COUNTY, GARY J. COONEY, CLERK, 01/17/2023 02:23:57 PM
7
Admitted that Defendant DOLGENCORP had certain duties consistent with
Florida law; otherwise, said allegations are denied. Defendant DOLGENCORP specifically denies
it breached any duties owed to Plaintiff.
8 Denied.
9 Denied.
10. Denied.
GENERAL DENIALS
Any allegation not specifically admitted herein is denied. Defendant DOLGENCORP
specifically denies each and every allegation of negligence, causation and fact, proximate cause,
injuries, and damages and demands strict proof thereof.
AFFIRMATIVE DEFENSES
Upon information and belief and subject to further investigation and discovery of which
Defendant DOLGENCORP has not yet had the opportunity to complete, Defendant alleges and
relies upon the following Affirmative Defenses which may prove applicable after discovery and/or
at trial:
1 To the extent Plaintiff is claiming she fell as a result of some transitory foreign
substance, Plaintiff has failed to satisfy and cannot satisfy the requirements of Section 768.0755,
Florida Statutes, whereby the Plaintiff must prove that Dolgencorp had actual or constructive
knowledge of the alleged dangerous condition and should have taken action to remedy it.
2. Defendant states that if a dangerous condition existed which caused the Plaintiff to
fall, although disputed, Defendant is not liable to Plaintiff as Defendant had no actual or
constructive knowledge of the alleged dangerous condition. Plaintiff's knowledge of the alleged
dangerous condition was equal to or greater than Defendant’s knowledge and Plaintiff’s claim is
therefore barred.
3 The alleged condition about which Plaintiff complains, was not present for a
sufficient period of time or under circumstances sufficient for the Defendant to discovery, warn,
or remedy.
4 The Plaintiff's Complaint fails to state a cause of action upon which relief can be
granted to Plaintiff.
5 Defendant is not liable for the injuries alleged in the Complaint as Defendant
exercised reasonable care in the maintenance, inspection, repair, warning, or mode of operation of
the premises.
6 Plaintiff is prevented from recovering or stating a claim against Defendant as
Defendant owed no duty to Plaintiff, and even if such a duty existed, Defendant did not fail to
perform any such duty.
7
Plaintiff was the sole and proximate cause of the subject incident and damages
which are alleged in the Complaint, and therefore Plaintiff is barred from recovery as a matter of
law. Alternatively, Plaintiff is guilty of comparative negligence and any recovery in favor of
Plaintiff must be reduced by the percentage of negligence contributed to Plaintiff.
8 The dangerous condition alleged in the Complaint would have been open and
obvious and Plaintiff knew or should have known as to the existence of the condition complained
of in the Complaint, which could have been avoided through the use of reasonable care.
Accordingly, Dolgencorp owed no duty to warn of any open and obvious condition where
Dolgencorp’s knowledge of the alleged condition was not superior to Plaintiff's. Brookie v. Winn-
D ixie Stores, Inc., 213 So. 3d 1129 (Fla. 1 DCA 2017).
9 Plaintiff realized and appreciated the possibility of injury as a result of the
dangerous condition alleged in the Complaint and having the opportunity to avoid it, voluntarily
exposed herself to said danger; therefore, Plaintiff's assumption of the risk bars any recovery of
damages by the Plaintiff.
10. Any injuries or damages sustained by Plaintiff at the time and place alleged in the
Complaint were caused solely by the acts or omissions of other persons, parties or entities for
whose conduct Defendant bears no responsibility and over whom this Defendant had no care or
control.
ll. Intervening or superseding acts occurred, which were unforeseeable occurrences,
causing the injuries or damages alleged in the Complaint; such intervening or superseding causes
bar or reduce proportionately Plaintiffs claim for damages.
12. Defendant is entitled, pursuant to Section 768.81, Florida Statutes, to have the
damages in this action reduced or apportioned in accordance with the provisions of this statute. In
determining damages allegedly incurred by Plaintiff, fault must be apportioned among all
responsible entities and persons who contributed to the accident, even though not all of them have
been joined as defendants. Fabre v. Marin, 623 So.2d 1182 (Fla. 1993). Defendant reserves the
right to place a non-party, whose identity has not yet been obtained, on the verdict form at trial as
a joint tortfeasor.
13. The injuries and losses complained of by Plaintiff occurred either prior to or
subsequent to the incident referred to in the Complaint; alternatively, said injuries and losses are
in no way related to the incident referred to in the Complaint, thus barring or reducing
proportionately all claims for damages against Defendant.
14. Plaintiff failed to mitigate her damages as required by law by failing to obtain
reasonable and necessary medical treatment and/or by failing to follow the medical
recommendations of her treating healthcare providers and by failing to seek and accept
employment, and therefore any recovery shall be proportionally reduced as a result.
15. The treatment provided to Plaintiff was over-billed by the medical providers.
16. Plaintiff has failed to mitigate her damages by failing to submit all payable medical
bills to her health insurer, thus depriving Defendant of the contractual discount available as a third-
party beneficiary of the contract between Plaintiff and her insurer.
17. Defendant is entitled to a set-off from any recovery against it for all sums of money
paid by settlement, judgment, insurance payments, collateral sources and any other benefits paid
or payable to or on behalf of Plaintiff from any party or non-party to this action.
DEMAND FOR JURY TRIAL
Defendant, DOLGENCORP, LLC, hereby demands trial by jury as to all issues so triable
as a matter of right and law.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished via the Florida
Courts E-Filing Portal System to Lisa M. Nommensen, Esquire, Law Office of Nooney, Roberts,
Hewett & Nowicki, 1680 Emerson Street, Jacksonville, FL 32207, lisa@nrhnlaw.com, and
meneil@nrhnlaw.com, Attorney for Plaintiff, on this 17" day of January, 2023.
ST. DENIS & DAVEY, P.A.
Cc
KACIE K. HUTCHINSON, ESQUIRE
Florida Bar Number 016121
kacie@sdtriallaw.com
1300 Riverplace Boulevard, Suite 401
Jacksonville, FL 32207
(904)396-1996 — Telephone
(904)396-1991 — Facsimile
Attorneys for Dolgencorp, LLC
Preview
Filing # 164865550 E-Filed 01/17/2023 02:19:55 PM IN THE CIRCUIT COURT, FIFTH JUDICIAL CIRCUIT, IN AND FOR LAKE COUNTY, FLORIDA CASE NO.: 2022-CA-002134 MELISSA MAGLIO, an individual, Plaintiff, vs. DOLGENCORP, LLC, a Foreign Limited Liability Company Defendant. / DEFENDANT DOLGENCORP, LLC’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT COMES NOW the Defendant, DOLGENCORP, LLC (hereinafter “DOLGENCORP”), by and through its undersigned counsel, hereby files this Answer to the Complaint of the Plaintiff, MELISSA MAGLIO, and denies each and every allegation not specifically admitted herein, asserts the following Affirmative Defenses, and states as follows: 1 Admitted for jurisdictional purposes only; otherwise, said allegations are denied. 2 Admitted that Defendant DOLGENCORP, at all times material hereto, operated the store located at 395 East Burleigh Blvd., in Tavares, Florida; otherwise, said allegations are denied. 3 Denied. 4 Denied. Denied. Denied. FILED: LAKE COUNTY, GARY J. COONEY, CLERK, 01/17/2023 02:23:57 PM 7 Admitted that Defendant DOLGENCORP had certain duties consistent with Florida law; otherwise, said allegations are denied. Defendant DOLGENCORP specifically denies it breached any duties owed to Plaintiff. 8 Denied. 9 Denied. 10. Denied. GENERAL DENIALS Any allegation not specifically admitted herein is denied. Defendant DOLGENCORP specifically denies each and every allegation of negligence, causation and fact, proximate cause, injuries, and damages and demands strict proof thereof. AFFIRMATIVE DEFENSES Upon information and belief and subject to further investigation and discovery of which Defendant DOLGENCORP has not yet had the opportunity to complete, Defendant alleges and relies upon the following Affirmative Defenses which may prove applicable after discovery and/or at trial: 1 To the extent Plaintiff is claiming she fell as a result of some transitory foreign substance, Plaintiff has failed to satisfy and cannot satisfy the requirements of Section 768.0755, Florida Statutes, whereby the Plaintiff must prove that Dolgencorp had actual or constructive knowledge of the alleged dangerous condition and should have taken action to remedy it. 2. Defendant states that if a dangerous condition existed which caused the Plaintiff to fall, although disputed, Defendant is not liable to Plaintiff as Defendant had no actual or constructive knowledge of the alleged dangerous condition. Plaintiff's knowledge of the alleged dangerous condition was equal to or greater than Defendant’s knowledge and Plaintiff’s claim is therefore barred. 3 The alleged condition about which Plaintiff complains, was not present for a sufficient period of time or under circumstances sufficient for the Defendant to discovery, warn, or remedy. 4 The Plaintiff's Complaint fails to state a cause of action upon which relief can be granted to Plaintiff. 5 Defendant is not liable for the injuries alleged in the Complaint as Defendant exercised reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the premises. 6 Plaintiff is prevented from recovering or stating a claim against Defendant as Defendant owed no duty to Plaintiff, and even if such a duty existed, Defendant did not fail to perform any such duty. 7 Plaintiff was the sole and proximate cause of the subject incident and damages which are alleged in the Complaint, and therefore Plaintiff is barred from recovery as a matter of law. Alternatively, Plaintiff is guilty of comparative negligence and any recovery in favor of Plaintiff must be reduced by the percentage of negligence contributed to Plaintiff. 8 The dangerous condition alleged in the Complaint would have been open and obvious and Plaintiff knew or should have known as to the existence of the condition complained of in the Complaint, which could have been avoided through the use of reasonable care. Accordingly, Dolgencorp owed no duty to warn of any open and obvious condition where Dolgencorp’s knowledge of the alleged condition was not superior to Plaintiff's. Brookie v. Winn- D ixie Stores, Inc., 213 So. 3d 1129 (Fla. 1 DCA 2017). 9 Plaintiff realized and appreciated the possibility of injury as a result of the dangerous condition alleged in the Complaint and having the opportunity to avoid it, voluntarily exposed herself to said danger; therefore, Plaintiff's assumption of the risk bars any recovery of damages by the Plaintiff. 10. Any injuries or damages sustained by Plaintiff at the time and place alleged in the Complaint were caused solely by the acts or omissions of other persons, parties or entities for whose conduct Defendant bears no responsibility and over whom this Defendant had no care or control. ll. Intervening or superseding acts occurred, which were unforeseeable occurrences, causing the injuries or damages alleged in the Complaint; such intervening or superseding causes bar or reduce proportionately Plaintiffs claim for damages. 12. Defendant is entitled, pursuant to Section 768.81, Florida Statutes, to have the damages in this action reduced or apportioned in accordance with the provisions of this statute. In determining damages allegedly incurred by Plaintiff, fault must be apportioned among all responsible entities and persons who contributed to the accident, even though not all of them have been joined as defendants. Fabre v. Marin, 623 So.2d 1182 (Fla. 1993). Defendant reserves the right to place a non-party, whose identity has not yet been obtained, on the verdict form at trial as a joint tortfeasor. 13. The injuries and losses complained of by Plaintiff occurred either prior to or subsequent to the incident referred to in the Complaint; alternatively, said injuries and losses are in no way related to the incident referred to in the Complaint, thus barring or reducing proportionately all claims for damages against Defendant. 14. Plaintiff failed to mitigate her damages as required by law by failing to obtain reasonable and necessary medical treatment and/or by failing to follow the medical recommendations of her treating healthcare providers and by failing to seek and accept employment, and therefore any recovery shall be proportionally reduced as a result. 15. The treatment provided to Plaintiff was over-billed by the medical providers. 16. Plaintiff has failed to mitigate her damages by failing to submit all payable medical bills to her health insurer, thus depriving Defendant of the contractual discount available as a third- party beneficiary of the contract between Plaintiff and her insurer. 17. Defendant is entitled to a set-off from any recovery against it for all sums of money paid by settlement, judgment, insurance payments, collateral sources and any other benefits paid or payable to or on behalf of Plaintiff from any party or non-party to this action. DEMAND FOR JURY TRIAL Defendant, DOLGENCORP, LLC, hereby demands trial by jury as to all issues so triable as a matter of right and law. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished via the Florida Courts E-Filing Portal System to Lisa M. Nommensen, Esquire, Law Office of Nooney, Roberts, Hewett & Nowicki, 1680 Emerson Street, Jacksonville, FL 32207, lisa@nrhnlaw.com, and meneil@nrhnlaw.com, Attorney for Plaintiff, on this 17" day of January, 2023. ST. DENIS & DAVEY, P.A. Cc KACIE K. HUTCHINSON, ESQUIRE Florida Bar Number 016121 kacie@sdtriallaw.com 1300 Riverplace Boulevard, Suite 401 Jacksonville, FL 32207 (904)396-1996 — Telephone (904)396-1991 — Facsimile Attorneys for Dolgencorp, LLC