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Filing # 140058645 E-Filed 12/09/2021 02:58:35 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CASE NO: 2021-CA-760 ON
JACKLINE GONZALEZ,
Plaintiff,
vs.
WALMART# 5250 and GERALD
SKINNER,
Defendants.
/
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO
DISMISS AND MEMORANDUM OF LAW IN SUPPORT
Plaintiff, JACKLINE GONZALEZ, by and through her undersigned counsel, in response
to Defendants’, WALMART # 5250 and GERALD SKINNER, Motion to Dismiss and
Memorandum of Law in Support, and in support of same states as follows:
SUMMARY OF THE ARGUMENT
Plaintiff has asserted a simple negligence action against Defendant. Defendant attempts
to persuade this Court that simple negligence no longer exists in Florida as a result of Florida
Statute §768.0755. In reality, plaintiffs must still prove the defendant owed a duty and breached
the duty, resulting in plaintiff's injuries.
The repeal of Fla. Stat. 768.0710 did not eliminate the negligent mode of operation cause
of actions. See Florida Staff Analysis of H.B. 689 on March 1, 2010, which provided that
“[p|roposed Changes H.B. 689 which repeals §768.0710 F.S. and approximates the law with
respect to slip and fall suits as it existed before 2001.” Mode of operations theories existed prior
to 2001. See Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251, 1257-58 (Fla. 4th DCA
1
2003), approved, 908 So. 2d 342 (Fla. 2005)(“[w]ell before the Owens decision, outside of the
context of foreign substance, supermarket slip and fall cases, Florida's courts have applied a
“mode of operation” theory of liability to premises liability cases. See, e.g., Brisson v. W.T.
Grant Co., 79 So.2d 771 (Fla.1955); Fontana v. Wilson World Maingate Condo., 717 So.2d 199
(Fla. 5th DCA 1998). The Florida Legislature has already decided for the Court that the repeal
should return things to pre Owens/2001. We know Mode of Operation existed pre Owens/2001.
Florida Statute §768.0755 acts to shift the burden of proof of knowledge to the Plaintiff
and does not affect any common-law duties owed to Plaintiff. Said another way, Plaintiff must
still prove negligence in order to state a valid cause of action; however, post-enactment of
Florida Statute §768.0755, Plaintiff must also prove the Defendant had actual or constructive
knowledge of the dangerous condition they created or allowed to exist.
If Defendant’s theory made logical sense, a complaint under Florida Statute §768.0755
would only require Plaintiff to allege the Defendant had actual or constructive knowledge of a
dangerous condition, but would not allow Plaintiff to allege duty or breach under common-law
negligence theories. This would result in a dismissal of every single complaint filed for failure to
state a cause of action for negligence. Florida law is clear that premises liability is a form of
negligence.
Finally, negligent mode of operation, as a theory of duty and breach of simple negligence
still exists. In fact, negligent mode of operation which results in the creation of a dangerous
condition is evidence of actual knowledge under Florida Statute §768.0755. Plaintiff's
Complaint, §9(n-o) and 15(n-o) outlines the duties owed and breached with respect to Plaintiff,
and have no effect on Plaintiff's obligation under Florida Statute §768.0755 to prove actual or
constructive knowledge on the part of the Defendant.
2
MATERIAL FACTS
1. The subject cause of action stems from a slip and injury incident at Wal-Mart.
2. Plaintiff filed their simple negligence Complaint.
3. Specifically, the Complaint alleges that Defendant owed Plaintiff a duty, that
Defendant breached said duty, that said breach was the cause of injuries to Plaintiff, and, in
general, the damages sustained by Plaintiff.
4. Defendant filed a Motion to Dismiss portions of the Plaintiff's Complaint. In sum,
this Motion is based on a simple misunderstanding: Defendant misinterprets the Plaintiff's
Complaint for asserting an individual cause of action for negligent mode of operation—it does
not. But even if it did, same would be permitted under the present laws of Florida.
5. Again, as stated above, Plaintiff, at this time, has only alleged a general
negligence claim against Defendant. General negligence claims consist of four elements: (1)
duty, (2) breach, (3) causation, and, (4) damages. In premise liability cases involving a transitory
foreign substance, which are forms of negligence claims, not only does the Plaintiff have to show
the above elements, but must also prove the added elements of possession or control of the
premises, and notice of the dangerous condition.
6. Defendant, incorrectly, relies on Pembroke Lakes Mall v. McGruder, 137 So. 3d
418, 426 (Fla. 4th DCA 2014) to argue that negligent maintenance, inspection, repair, warning,
and mode of operation were abrogated by Florida Statute §768.0755.
7. For the following reasons, the Court should deny Defendant’s Motion to Dismiss,
as Plaintiff’s Complaint properly pleads a cause of action for negligence.
MEMORANDUM OF LAW
I. Motions to Dismiss.
3
The Defendant’s Motion to Dismiss should be denied, however, because (1) Florida
Statute §768.0755(2) preserves common law duties on the part of the owner/operator, and an
examination of the history and evolution of the negligent mode of operation theory demonstrates
that it arises out of the common law duties of premises owners/operators; and (2) a claim for
negligent mode of operation only obviates proof of the element of knowledge because actual
knowledge is presumed where a premises owner/operator creates the dangerous condition or
“zone of foreseeable risk”. Carls Markets v. Meyer, 69 So.2d 789, 791 (Fla. 1953); Food Fair
Stores of Florida, Inc. v. Moroni, 113 So.2d 275 (Fla. 2nd DCA 1958).
Because Defendant requested alternative relief in their wherefore clause, Plaintiff would
further provide that “[a] Motion to Strike will be denied unless the allegations at issue are “wholly
irrelevant, can have no bearing upon the equities and no influence upon the decision either as to the
relief to be granted or the allowance of costs.” Town of Howey-in-the-Hills v. Graessie, 36 So. 2d
619 (Fla. 1948); Rice-Lamar v. City of Fort Lauderdale, 853 So. 2d 1125 (4th DCA 2003)
(applying this principle to Fla. R. Civ. P. 1.140(f)).
Regardless of the Court’s ruling now, Defendant would be able to later pursue similar relief
under 1.140(f), if they desired. However, at the pleading stage, the Defendant’s Motion to Dismiss,
based solely on the four corners of the one count Negligence Complaint filed by Plaintiff, should be
denied.
II. Florida Statute §768.0755 Acts to Shift the Burden of Proof to the Plaintiff and Does
Not Abrogate Common Law Theories of Negligence
Florida’s Transitory Foreign Substance Statute did nothing to change how negligence can
be pled. Instead, it simply shifted the burden of proof to Plaintiff to show the business
establishment had actual or constructive knowledge of the dangerous condition created by a
4
business’s negligence. Under §768.0755, “the injured person must prove that the business
establishment had actual or constructive knowledge of the dangerous condition .. .” As the Court
in Kenz explained, “section §768.0755 does not operate to alter a prima facie case for a
negligence claim[;] rather, it concerns evidence, the burden of producing which is upon the
plaintiff, that the jury must consider in determining whether there has been a breach of duty.”
Kenz at 466.
Plaintiff can still succeed in a slip and fall case by showing the business premises acted
negligently in the maintenance, inspection, repair, warning, and mode of operation, to the extent
the Plaintiff can prove said negligence resulted in the actual or constructive knowledge of the
condition by the business. Nowhere in any Florida cases does it state that causes of action for
negligent maintenance, inspection, repair, warning, or mode of operation were abrogated by the
2010 statute.
In the case at bar, Defendant argues Plaintiff can only argue as a theory of liability that
Defendant had actual or constructive knowledge of the dangerous condition, and not the ways in
which the Defendant acted negligently. In reality, Plaintiff must argue duty and breach as
elements of negligence, but still maintains the burden to prove the Defendant’s negligence
resulted in their actual or constructive knowledge of the dangerous condition.
III. Defendant’s Position Would Act to Abolish Simple Negligence in Transitory Foreign
Substance Cases
In Defendant’s Motion, they argue the duty to maintain, the duty to inspect, the duty to
repair, the duty to train, and the duty to comply with their own policies and procedures, asserts
negligent operations of the business; and therefore, these allegations are based on the repealed
statutory theory of Negligent Mode of Operation. Essentially, Defendant argues the only issue
5
Plaintiff can plead in a transitory foreign substance case is that the Defendant had actual or
constructive knowledge of the condition.
A well-established and recently affirmed principle in Florida finds, “[a] premises liability
claim is a negligence claim with the added elements of possession or control of the premises, and
notice of the dangerous condition. Oliver v. Winn-Dixie Stores, Inc., 291 So. 3d 126 (Fla. 4th
DCA 2020). Similar to the case at bar, Oliver involveda slip and fall incident in a grocery store
on a transitory foreign substance. /d. at 127. Although the issue involved summary judgment
proceedings, the Court introduced the issues by explaining that premises liability claims are a
form of negligence claims. /d. at 128. The Court then explained for Winn-Dixie to prevail on
summary judgment, they had to show no genuine issues of material fact about any one of the
following: (i) its duty to Oliver; (ii) whether it breached the duty; (iii) whether there was causal
connection between its breach and Oliver’s fall; (iv) Oliver’s damages; (v) that it lacked control
of the premises; or (vi) that it did not have constructive notice of the grape or surrounding liquid
on the floor. /d. If the defendant in Oliver could show there were no genuine issues of material
fact on any one of those elements, summary judgment would be granted.
In the case at bar, Defendant confuses the duty / breach allegations in Plaintiff's
Complaint, with the notice requirement under §768.0755. In applying Defendant’s logic to the
analysis in Oliver, every single defendant in every transitory foreign substance case would
prevail on summary judgment as plaintiffs could not plead duty/breach in their complaints and
can only plead actual or constructive knowledge. If Plaintiff in this case cannot argue Defendant
owed and breached the duties outlined in 49 and 15, then under the Oliver analysis, summary
judgment would be entered for Defendant as there are no genuine issues of material fact as to (1)
6
duty to Plaintiff and (ii) breach of the duty, as Plaintiff is not even allowed to plead duty and
breach under theories of negligence.
IV. Negligent Mode of Operation is Proof of Actual Knowledge Under §768.0755
Although defendants routinely argue negligent mode of operation no longer exists,
negligent mode of operation is a subset of actual knowledge under 768.0755. Said another way,
in alleging duty and breach of negligent mode of operation, Plaintiff can still prove actual
knowledge of the dangerous condition sufficient to meet her burden under §768.0755.
Former Chief Judge of the Fifth District Court of Appeals of Florida, Thomas Sawaya,
authored a treatise in October 2016, post-enactment of §768.0755, directly on this issue. 6 Fla.
Prac., Personal Injury & Wrongful Death Actions §10:13 (2016-2017 ed.).' As Judge Sawaya
explained, “the dispositive issue is whether the specific method of operation was negligent and
whether the accident occurred as a result of that negligence.” /d. Furthered, “when the act of
negligence is the method of operation employed by the owner or operator of a business, he is the
creator of the dangerous condition and he must, by that very fact, know about and be responsible
for his creation.” Jd.
Using the analysis offered by Judge Sawaya, mode of operation remains a basis to show
and prove actual or constructive knowledge. This is true as the choice to utilize said mode of
operation itself creates actual knowledge of the part of the owner or operator. This idea is not
new or novel as the Fifth District explained in 2001, “actual knowledge of a dangerous condition
exists when the restaurant’s employees or one of its agents knows of or creates the dangerous
condition.” Barbour v. Brinker Florida, Inc., 801 So. 2d 953 (Fla. 5d DCA 2001).
"Note this was authored after some of the Federal Court cases relied upon Defendant.
7
Defendant relies heavily on the argument outlined in Pembroke Lakes Mall, Ltd. v. McGruder,
137 So. 3d 418, 426 (Fla. 4th DCA 2014):
“Under the 2002 statute, a plaintiff could succeed in a slip and fall case by
showing ‘the business premises acted negligently by failing to exercise
reasonable care in the maintenance, inspection, repair, warning, or mode
of operation of the business premises,’ without showing the business had
actual or constructive knowledge of the transitory foreign substance.
Under the 2010 statute, however, the same plaintiff would be unable to
successfully assert such a cause of action, no matter how persuasive or
compelling the evidence that plaintiff had in support of the claim.” /d. at
426.
What is interesting is the emphasis Defendant in this case added to the Court’s analysis of
McGruder to have it appear the 2010 statute abolished causes of action for negligent
maintenance, inspection, repair, warning, and mode of operation. If instead, we read the analysis
as a whole, we see the clear distinction between the two statutes is knowledge of the substance.
If we look again at the paragraph above, the distinction is clear in that under the 2002 statute, a
plaintiff could succeed in a slip and fall case by showing the business premises acted negligently
by failing to exercise reasonable care in the maintenance, inspection, repair, warning or mode of
operation .. . without showing the business had actual or constructive knowledge . . /d.
(emphasis added).
In 2018 the Barbour case was cited by the United State District Court for the Southern
District of Florida affirming the proposition that a premises owner has actual knowledge of a
dangerous condition when its employees or agents know of or create the dangerous condition.
Toruno vy. Sam’s East, Inc., WL 3934653, at 3 (S.D. Fla. July 25, 2018), report _and
recommendation adopted, 2018 WL 3882931 (S.D. Fla. Aug. 1, 2018). The Court in Toruno
analyzed the issue under §768.0755, finding the burden of proof of actual knowledge under the
statute is met in showing an employee or agent created the dangerous condition.
8
The logical connection between the treatise authored by Judge Sawaya in 2016 and the
analysis outlined in Barbour and Toruno, clearly explains that when a business employs certain
methods of operation which result in the creation of a negligent condition, actual knowledge is
imputed on the business as the creator of the condition, sufficient to meet the burden of actual
knowledge under $768.0755.
V. Statutory Interpretation.
Below is a copy of the prior repealed statute, which I have cited below for the Court’s
convenience:
768.0710 Burden of proof in claims of negligence involving transitory foreign
objects or substances against persons or entities in possession or control of
business premises.--
(1) The person or entity in possession or control of business premises owes a
duty of reasonable care to maintain the premises in a reasonably safe condition for
the safety of business invitees on the premises, which includes reasonable efforts
to keep the premises free from transitory foreign objects or substances that might
foreseeably give rise to loss, injury, or damage.
(2) In any civil action for negligence involving loss, injury, or damage to a
business invitee as a result of a transitory foreign object or substance on business
premises, the claimant shall have the burden of proving that:
(a) The person or entity in possession or control of the business premises owed a
duty to the claimant;
(b) The person or entity in possession or control of the business premises acted
negligently by failing to exercise reasonable care in the maintenance,
inspection, repair, warning, or mode of operation of the business premises.
Actual or constructive notice of the transitory foreign object or substance is not a
required element of proof to this claim. However, evidence of notice or lack of
notice offered by any party may be considered together with all of the evidence;
and (emphasis added).
Plaintiff would suggest that a interpreting this repeal in Defendant’s positions, would
require any reference to negligent maintenance, negligent inspection, negligent repair, or failing
9
to warn also be stricken. Notably, Defendant has not asked that any of the paragraphs pertaining
to maintenance or repair, or the duty to warn be stricken. The statute as amended merely shifts
the burden to the Plaintiff to prove actual or constructive knowledge.
Was it the intent of the legislature to repeal causes of action for negligent maintenance,
negligent repair, negligent warning, failing to perform proper inspections by enacting Fla. Stat.
768.0755? No. Nor was it their intent to remove theories of negligent mode of operation, so long
as the news burdens of knowledge and possession are met.
VI. ~The Change in the Law is Merely Procedural.
In Kenz v. Miami-Dade County & Unicco Serv. Co., 116 So.3d 461 (Fla. 31a DCA 2013),
as part of reviewing a granting of summary judgment related to the previous and current versions
of the statute, the Third DCA looked at section 768.0755 for the question of whether it was a
procedural change in the law, or a substantive change. The Third DCA held that the actual or
constructive knowledge language in the statute is not a new required element of a prima facia
case for negligence and does not alter a case for negligence. Rather, it concerns the type of
evidence that the jury may consider in determining whether there has been a breach of duty, or in
other words, the means and method to show the defendant has breached its duty of care. See
Kenz, at 464. Thus, the Third DCA held that because the change in the statute is related to the
plaintiff's burden of proof, it is a procedural change. See also Hicks v. State, 277 So.3d 153 (Fla.
Ist DCA 2019)(citing Kenz for holding that new statute concerning burden of proof is
procedural).
Florida law holds that substantive law prescribes duties and rights of a party, and
procedural law only concerns the means and methods to apply and enforce those duties and
rights. See Benyard v. Wainwright, 322 So.2d 473, 475 (Fla. 1975); see Alamo Rent-A-Car v.
10
Mancusi, 632 So.2d 1352 (Fla. 1994). Because the transitory substances statute is procedural in
nature, rather than substantive law, it cannot eliminate causes of action that arise out of common
law. While Plaintiff concedes that the level of proof that is required of the Plaintiff under the
negligent mode of operation subset of negligence has changed, nothing in a procedural statute
can abolish the underlying negligence claim itself.”
CONCLUSION
Under Defendant’s position, simple negligence no longer exists in Florida as a result of
Florida Statute §768.0755. In reality, Florida Statute §768.0755 acts to shift the burden of proof
of knowledge to the Plaintiff and does not affect any common-law duties owed to Plaintiff. Post-
enactment of Florida Statute §768.0755 Plaintiff must still prove negligence in order to state a
valid cause of action; however, Plaintiff must also prove the Defendant had actual or
constructive knowledge of the dangerous condition they created or allowed to exist.
Negligent mode of operation still exists to the extent it results in the creation of a
dangerous condition proving actual knowledge under Florida Statute §768.0755. Plaintiff's
Complaint outlines the duties owed and breached with respect to Plaintiff, and have no effect on
Plaintiffs obligation under Florida Statute §768.0755 to prove actual or constructive knowledge
on the part of the Defendant.
WHEREFORE, Plaintiff respectfully requests this Court enter an Order denying
Defendant’s Motion to Dismiss, and for any and all other relief this Court deems just and proper.
* It is undisputed that the Negligent Mode of Operation Cause of Action existed prior to 2001.
11
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on December 9, 2021, I electronically filed the foregoing
with the Clerk of the Courts by using the Florida Courts eFiling Portal which will send notice of
filing to: Michele D. Morales, Esquire (mmorales.pleadings@qpwblaw.com), Quintairos, Prieto,
Wood & Boyer, P.A., 255 S. Orange Avenue, Suite 900, Orlando, Florida 32801; . Jeffrey
Glotzer, Esquire (mchusid@ritterchusid.com; jglotzer@ritterchusid.com), Ritter Chusid, LLP,
5850 Coral Ridge Drive, Ste. 201, Coral Springs, Florida 33076.
___/s/ Brandon M. Smith
Brandon M. Smith, Esq.
FBN 118916
Morgan & Morgan, P.A.
20 N. Orange Avenue, Suite 1600
Orlando, FL 32802-4979
Telephone: (407) 420-1414
Primary Email: brandonmsmith@forthepeople.com
Secondary email: egarcia@forthepeople.com
Attormey for Plaintiff
12
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND FOR
OSCEOLA COUNTY, FLORIDA
ZAHRA BOURASS, CIRCUIT CIVIL DIVISION
Plaintiff, CASE NO. 2016-CA-002515-ON
¥s,
PUBLIX SUPER MARKETS, INC.,
Defendant.
ee|
THIS MATTER came on for hearing on March 27, 2018, on the above motion, and the
Court having reviewed the pleadings, the summary judgment evidence, and having heard
argument of counsel, and being duly advised in the premises, states it is hereby:
ORDERED AND ADJUDGED as follows:
I. Defendant’s Motion for Summary Judgment on Count | is Denied. There is a genuine
issue of material fact as to whether the pled dangerous condition involving the object
occurred with regularity.
2. Defendant’s Motion for Summary Judgement on Count 2 is Denied. The repeal of Fla.
Stat. 768.0710 did not eliminate the “negligent mode of operation” cause of action.”
' See Lago y, Costco Wholesale, 233 So.3d 1248, 1250 n.2 (Fla. 3d DCA 2017) (transitory
foreign substance under Fla. Stat. 768.0755 includes objects).
2 The Florida StaffAnalysis of H.B, 689 on March 1, 2010 provided “Proposed Changes
HB 689 repeals s. 768.0710, F.S. and approximates the law with respect to slip and fall suits as
it existed before 2001.”
Page | of2
DONE: AND ORDERED at Kissimmee, Usceula County. Florida. this £5
day-of naVeo »2018. \,
Honorable Mike Murphy \ -
CIRCUIT JUDGE
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true. and correct copy of the foregoing was served via U.S.
Regular Mailon March .2018. to all counsel ofrecord on the service list below:
Amal Laassel. Esquire
Amal Laassel, P.A,
1650 Sand Lake Rd., Suite 114-A
Orlando, FL 32809 .
amal.claassellaw.com:
mieonard’a lpassellaw.com: dservicea laassell.com
Juseph P. Menello, Lisquire
WICKER SMITH O'MARA McCOY & FORD, P.A.
391) N, Orange Ave.. Suite 1000
Orlando,
FL 32801 . .
ORicrtpleadings<(twickersmith.com; jmenello(@wickersmnith.com
Original Signed
APR 02 2018
Judicial Assistant for Judge Murphy
Puge 2 of2
IN THE CIRCUIT COURT OF THE
11TH JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION
CASENO: ye Ope
Plaintiff(s),
“ ORDER
GRANTING/DENYING
a PLAINTIFF’S/DEFENDANT’S
Defendant(s),
a
THIS CAUSE having come on to be heard on ea one
on Plainuff’s/Defendant’s Motion
TN wh Se a Cee a boa - —
van okt ae ae oye
and the Court having heard arguments of counsel, and being otherwise advised in the premises, it is hereupon
_ ORDERED AND ADJUDGED that said Motion be, and the same is hereby
DONE AND ORDERED in Chambers at Miami-Dade County. Florida this
day of oof
CIRCUIT COURT JUDGE ™
Copies furnished to: Counsel of Record ~
LIT_OL-SS4 4/1 Poke Py rg
COM Ose yh or) re
7 Mi pu QB : mo : } an j
Filing # 74531537 E-Filed 07/05/2018 04:43:18 PM
IN THE CIRCUIT COURT OF THE NINTH
JUDICIAL CIRCUIT IN AND FOR
ORANGE COUNTY, FLORIDA
CASE NO: 2018-CA-001279-O
VIVIENNE HUNT,
Plaintiff,
vs.
WALMART STORES EAST, LP,
Defendant.
/
ORDER ON DEFENDANT’S MOTION TO DISMISS/MOTION TO STRIKE
THIS CAUSE having come before the Court on June 28, 2018, on Defendant’s Motion to
Dismiss/Motion to Strike, and the Court having been fully advised in the premises, states it is
hereby:
ORDERED and ADJUDGED that
1. Defendant’s Motion to Dismiss/Motion to Strike Plaintiff's claim for negligent
mode of operation as set forth in paragraph 7(1) of the Complaint is DENIED.
2. Defendant’s Motion to Dismiss/Motion to Strike Plaintiff's claims as set forth in
paragraph 7(g) of the Complaint is DENIED.
3. Defendant shall file and serve an Answer to Plaintiff's Complaint within twenty
(20) days of entry of this Order.
DONE and ORDERED in Chambers, Orange County Courthouse, Orlando, Florida, this
5 da macho 8
—___—dayo ; .
Circuit Court Judge
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on Duly 5, 20185 . I electronically filed the foregoing
with the Clerk of the Courts by using the Florida Courts eFiling Portal. I further certify
that Pursuant to Rule 2.516(b)(1) I forwarded the foregoing this same day via: o Email, o
U.S. Mail — postage paid, 0 facsimile transmission, to: Counsel for the Plaintiff, WARUN
RAMNARINE, ESQUIRE, P.O. Box 4979, Orlando, FL 32802-4979, and to Counsel
for the Defendant, KATHERINE MCKINLEY, ESQUIRE and TAI
PHETSANGHANE, ESQUIRE, Zimmerman, Kiser & Sutcliffe, P.A., 315 E. Robinson
Street, Ste 600 P.O. Box 3000, Orlando, FL 32802 [primary email: tai@zkslawfirm.com:
secondary email: mwilson@zkslawfirm.com]
Jd}
aoe
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND
FOR ORANGE COUNTY, FLORIDA
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Defendant(s).
ORDER
| perf) of f |
THIS MATTER, came on for consideration/hearing on the / © “ a day of L C7 Pipta-
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and the Court having reviewed the pleadings, having heard argument of counsel, and being ““j°*@*7/7) 4-1
otherwise duly advised in the premises, it is hereby
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, ORDERED and ADJUDGED as follows: §#@ AY ED. bet Oxy Jae
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DONE and ORDERED at Orlando, Orange County, Florida this pa. “7 day of
YT 20 .
yo “ye,
ao | Oo
Circuit Judge \
Copies furnished to:
Plaintiff
Defendant
- March 2014
Filing # 75048328 E-Filed 07/17/2018 10:15:21 AM
IN THE CIRCUIT COURT OF THE NINTH
JUDICIAL CIRCUIT IN AND FOR
ORANGE COUNTY, FLORIDA
CASE NO: 2018-CA-001705-O
DEBRA LOEB,
Plaintiff,
vs.
PUBLIX SUPER MARKETS, INC.,
Defendant.
ee
ORDER ON DEFENDANT’S MOTION TO DISMISS/MOTION TO STRIKE
| THIS CAUSE having come before the Court on July 16, 2018, on Defendant’s Motion to
Dismiss and/or Strike Paragraph 7(e) through 7(i) of Plaintiff's Complaint, and the Court having
been fully advised in the premises, states it is hereby:
ORDERED and ADJUDGED that
1. Defendant’s Motion to Dismiss and/or Strike Plaintiff's claims for negligent mode
of operation as set forth in Paragraph 7(e) through 7(i) of Plaintiff's Complaint is
DENIED.
2. Defendant shall file and serve an Answer to Plaintiff's Complaint within twenty
(20) days of entry of this Order.
lyew and ORDERED
day ofJuly, 2018. in Chambers, Orange County Courthouse, Orlando, Florida, this
Circuit Court Judge
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on Ji, fy J Z ZLAS I electronically filed the foregoing
with the Clerk of the Courts by using the Florida Courts eFiling Portal. I further certify
that Pursuant to Rule 2.516(b)(1) I forwarded the foregoing this same day via: pémail, a
U.S. Mail — postage paid, 0 facsimile transmission, to: Counsel for the Plaintiff, VARUN
RAMNARINE, ESQUIRE, P.O. Box 4979, Orlando, FL 32802-4979, and to Counsel
for the Defendant, CHRISTINE V. ZHAROVA, ESQUIRE and RICHARD 5S.
WOMBLE, ESQUIRE, Rissman, Barrett, Hurt, Donahue, McLain & Mangan, P.A., 201
, East Pine Street, 15th floor Post Office Box 4940, Orlando, FL 32802 [primary email:
rsw.service@rissman.com; cvz.service@rissman.com]
Loeb v. Publix Super Markets, Inc.
Case#: 2018-CA-001705-O
Order on Defendant’s Motion to Dismiss and/or Strike Paragraph 7(e) through 7(i) of Plaintiffs Complaint
Page 2 of2
IN THE CIRCUIT COURT OF THE JUDICIAL CIRCUIT
IN AND FOR VOLUSIA COUNTY, FLORIDA
KELLY SMITH ,
Plaintiff,
vs. CASE NO: 2019-CA-032111
PUBLIX SUPER MARKETS, INC,
Defendant.
a
ORDER ON DEFENDANT’S SUPPLEMENTAL MOTION TO DISMISS AND
PLAINTIFF’S MOTION FOR RECONSIDERATION OF THE MAY 7, 2020 ORDER
THIS CAUSE, having come on to be heard upon the Defendant’s Supplemental Motion to
Dismiss and Plaintiff's Motion for Reconsideration of the May 7, 2020 Order, the Court
ORDERED and ADJUDGED:
1. Defendant’s Supplemental Motion to Dismiss is DENIED.
2. Plaintiff's Motion for Reconsideration of the May 7, 2020 Order is DENIED.
DONE AND ORDERED in Chambers in Volusia County, Florida, on this___ day of ___ day
of June, 2020.
6/24/2020.41:55 AM 2019
e-Signed 6/24/2020 11:55 AM 2019 32111 CICI
HONORABLE
LEAH R. CASE
Circuit Court Judge
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via
the efiling portal to: Tyler Kobylinski, Esquire, Morgan & Morgan, P.A., and Alysse Vautier,
Esquire, Wicker, Smith, O'Hara, McCoy & Ford, P.A.
Judicial Assistant
Case 0:21-cv-60828-AHS Document 16 Entered on FLSD Docket 06/07/2021 Page 1 of 10
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 21-60828-CIV-SINGHAL/VALLE
CRUZ MARQUEZ,
Plaintiff,
V.
BJ’S WHOLESALE CLUB, INC.,
Defendant.
|
ORDER ON MOTION TO STRIKE
THIS CAUSE is before the Court on Defendant’s Motion to Strike Allegations of
Negligent Mode of Operation from Plaintiffs Complaint (DE [5]). Plaintiff has filed a
Response in Opposition (DE [9]), and Defendant has filed a Reply (DE [14]). For the
reasons discussed below, the Court denies Defendant’s Motion.
I. BACKGROUND
Plaintiff filed a two-count Complaint in state court against Defendant for “premises
liability” and “negligence under the non-delegable duty doctrine” arising out of injuries
Plaintiff sustained when she slipped and fell on an “applesauce-like substance” on the
floor at Defendant’s store. Compl. (DE [1-1], at 6-13). Relevant to this Motion, Defendant
takes issue with the following mode-of-operation theories of negligence alleged in
paragraphs 10 and 16 of the Complaint:
f) Negligently failing to have adequate staff on duty and/or assigned to the
task of inspecting and/or maintaining the shopping aisle flooring for
dangerous conditions;
Case 0:21-cv-60828-AHS Document 16 Entered on FLSD Docket 06/07/2021 Page 2 of 10
i) Negligently failing to have adequate policies in place to identify dangerous
conditions that may have accumulated on the shopping aisle flooring
despite knowledge of prior slip and falls at the subject location caused by
transitory foreign substances or other dangerous conditions that were not
timely identified by Defendant's employees and corrected/remedied or for
which notice was given to guests at the premises;
1) Negligently failing to assign specific associates/employees to the task of
solely monitoring the floor in the subject premises for dangerous conditions
and correcting/remedying said conditions and/or warning guests of said
conditions similar to the way in which specific associates/employees were
assigned to the task of solely cleaning/sanitizing shopping carts and/or
handbaskets or counting the number of guests entering/exiting the
premises during the COVID-19 pandemic as safety precautions;
n) Negligently engaging in a mode of operations when Defendant knew, or
should have known, that said mode of operations would result in dangerous
conditions to the general public, including the Plaintiff herein; [and]
0) Negligently engaging in routine or regular practice of business that was
not the reasonable custom of the community[.]
Compl. (DE [1-1], at 8-9, 11)'. Defendant now moves to strike these allegations from the
Complaint on the basis that the theory of negligent mode of operation in slip and fall cases
has been repealed by the Florida Legislature and is no longer a viable theory of recovery.
ll. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(f), “[t]he court may strike from a pleading
...any immaterial, impertinent, or scandalous matter.” Rule 12(f) is designed to “clean
up the pleadings, streamline litigation, and avoid unnecessary forays into immaterial
matters.” Munro v. Fairchild Tropical Botanic Garden, Inc., 2020 WL 7865415, at *1 (S.D.
Fla. Nov. 4, 2020) (quoting Wiand v. Wells Fargo Bank, N.A., 938 F. Supp. 2d 1238, 1251
(M.D. Fla. 2013)). But motions to strike “are not favored ... and will usually be denied
1 The page numbers of the Complaint at (DE [1-1]) refer to the CM/ECF-generated page numbers.
2
Case 0:21-cv-60828-AHS Document 16 Entered on FLSD Docket 06/07/2021 Page 3 of 10
unless the allegations have no possible relation to the controversy and may cause
prejudice to one of the parties.” Belin v. Health Ins. Innovations, Inc., 2019 WL 9575236,
at “13 (S.D. Fla. Oct. 22, 2019), report and recommendation adopted, 2019 WL 9575230
(S.D. Fla. Dec. 30, 2019) (omission in original) (quoting King v. Metro. Life Ins. Co., 331
F. Supp. 2d 1361, 1362 (M.D. Fla. 2003)).
lll. DISCUSSION
Defendant asserts that subparts (f), (i), (/), (n), and (0) of paragraphs 10 and 16,
impermissibly reference Defendant’s mode of operation, which is now a defunct theory of
liability under Florida slip-and-fall law. Under a common-law premises liability claim,
“[b]usiness owners owe invitees a duty: ‘(1) to take ordinary and reasonable care to keep
its premises reasonably safe for invitees[,] and (2) to warn of perils that were known or
should have been known to the owner and of which the invitee could not discover.”
Espinoza v. Target Corp., 843 F. App’x 168, 171 (11th Cir. 2021) (second alteration in
original) (quoting Norman v. DCI Biologicals Dunedin, LLC, 301 So. 3d 425, 428 (Fla. 2d
DCA 2020)); see also Oliver v. Winn-Dixie Stores, Inc., 291 So. 3d 126, 128 (Fla. 4th
DCA 2020) (“A premises liability claim is a ‘negligence claim with the added elements of
possession/control of the premises, and notice of the dangerous condition.” (quoting
Bechtel Corp. v. Batchelor, 250 So. 3d 187, 200 (Fla. 3d DCA 2018))).
In Owens v. Publix Supermarkets, Inc., 802 So. 2d 315 (Fla. 2001), the Florida
Supreme Court adopted the following standard in “slip-and-fall cases in business
premises involving transitory foreign substances”:
We hold that the existence of a foreign substance on the floor of a business
premises that causes a customer to fall and be injured is not a safe condition
and the existence of that unsafe condition creates a rebuttable presumption
that the premises owner did not maintain the premises in a reasonably safe
condition.
3
Case 0:21-cv-60828-AHS Document 16 Entered on FLSD Docket 06/07/2021 Page 4 of 10
Thus, once the plaintiff establishes that he or she fell as a result of a
transitory foreign substance, a rebuttable presumption of negligence arises.
At that point, the burden shifts to the defendant to show by the greater
weight of evidence that it exercised reasonable care in the maintenance of
the premises under the circumstances. The circumstances could include
the nature of the specific hazard and the nature of the defendant's business.
Id. at 331 (footnote omitted). The court also reaffirmed the theory of negligent mode of
operation:
[W]e recognize the continued viability of the mode of operation theory. If
the evidence establishes a specific negligent mode of operation such that
the premises owner could reasonably anticipate that dangerous conditions
would arise as a result of its mode of operation, then whether the owner had
actual or constructive knowledge of the specific transitory foreign substance
is not an issue. The dispositive issue is whether the specific method of
operation was negligent and whether the accident occurred as a result of
that negligence.
Id. at 332. Consistent with Owens, in 2002, the Florida Legislature codified the mode-of-
operation theory in cases involving transitory foreign substances:
(2) In any civil action for negligence involving loss, injury, or damage to a
business invitee as a result of a transitory foreign object or substance on
business premises, the claimant shall have the burden of proving that:
(b) The person or entity in possession or control of the business premises
acted negligently by failing to exercise reasonable care in the maintenance,
inspection, repair, warning, or mode of operation of the business premises.
Actual or constructive notice of the transitory foreign object or substance is
not a required element of proof to this claim. However, evidence of notice
or lack of notice offered by any
Preview
Filing # 140058645 E-Filed 12/09/2021 02:58:35 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO: 2021-CA-760 ON JACKLINE GONZALEZ, Plaintiff, vs. WALMART# 5250 and GERALD SKINNER, Defendants. / PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND MEMORANDUM OF LAW IN SUPPORT Plaintiff, JACKLINE GONZALEZ, by and through her undersigned counsel, in response to Defendants’, WALMART # 5250 and GERALD SKINNER, Motion to Dismiss and Memorandum of Law in Support, and in support of same states as follows: SUMMARY OF THE ARGUMENT Plaintiff has asserted a simple negligence action against Defendant. Defendant attempts to persuade this Court that simple negligence no longer exists in Florida as a result of Florida Statute §768.0755. In reality, plaintiffs must still prove the defendant owed a duty and breached the duty, resulting in plaintiff's injuries. The repeal of Fla. Stat. 768.0710 did not eliminate the negligent mode of operation cause of actions. See Florida Staff Analysis of H.B. 689 on March 1, 2010, which provided that “[p|roposed Changes H.B. 689 which repeals §768.0710 F.S. and approximates the law with respect to slip and fall suits as it existed before 2001.” Mode of operations theories existed prior to 2001. See Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251, 1257-58 (Fla. 4th DCA 1 2003), approved, 908 So. 2d 342 (Fla. 2005)(“[w]ell before the Owens decision, outside of the context of foreign substance, supermarket slip and fall cases, Florida's courts have applied a “mode of operation” theory of liability to premises liability cases. See, e.g., Brisson v. W.T. Grant Co., 79 So.2d 771 (Fla.1955); Fontana v. Wilson World Maingate Condo., 717 So.2d 199 (Fla. 5th DCA 1998). The Florida Legislature has already decided for the Court that the repeal should return things to pre Owens/2001. We know Mode of Operation existed pre Owens/2001. Florida Statute §768.0755 acts to shift the burden of proof of knowledge to the Plaintiff and does not affect any common-law duties owed to Plaintiff. Said another way, Plaintiff must still prove negligence in order to state a valid cause of action; however, post-enactment of Florida Statute §768.0755, Plaintiff must also prove the Defendant had actual or constructive knowledge of the dangerous condition they created or allowed to exist. If Defendant’s theory made logical sense, a complaint under Florida Statute §768.0755 would only require Plaintiff to allege the Defendant had actual or constructive knowledge of a dangerous condition, but would not allow Plaintiff to allege duty or breach under common-law negligence theories. This would result in a dismissal of every single complaint filed for failure to state a cause of action for negligence. Florida law is clear that premises liability is a form of negligence. Finally, negligent mode of operation, as a theory of duty and breach of simple negligence still exists. In fact, negligent mode of operation which results in the creation of a dangerous condition is evidence of actual knowledge under Florida Statute §768.0755. Plaintiff's Complaint, §9(n-o) and 15(n-o) outlines the duties owed and breached with respect to Plaintiff, and have no effect on Plaintiff's obligation under Florida Statute §768.0755 to prove actual or constructive knowledge on the part of the Defendant. 2 MATERIAL FACTS 1. The subject cause of action stems from a slip and injury incident at Wal-Mart. 2. Plaintiff filed their simple negligence Complaint. 3. Specifically, the Complaint alleges that Defendant owed Plaintiff a duty, that Defendant breached said duty, that said breach was the cause of injuries to Plaintiff, and, in general, the damages sustained by Plaintiff. 4. Defendant filed a Motion to Dismiss portions of the Plaintiff's Complaint. In sum, this Motion is based on a simple misunderstanding: Defendant misinterprets the Plaintiff's Complaint for asserting an individual cause of action for negligent mode of operation—it does not. But even if it did, same would be permitted under the present laws of Florida. 5. Again, as stated above, Plaintiff, at this time, has only alleged a general negligence claim against Defendant. General negligence claims consist of four elements: (1) duty, (2) breach, (3) causation, and, (4) damages. In premise liability cases involving a transitory foreign substance, which are forms of negligence claims, not only does the Plaintiff have to show the above elements, but must also prove the added elements of possession or control of the premises, and notice of the dangerous condition. 6. Defendant, incorrectly, relies on Pembroke Lakes Mall v. McGruder, 137 So. 3d 418, 426 (Fla. 4th DCA 2014) to argue that negligent maintenance, inspection, repair, warning, and mode of operation were abrogated by Florida Statute §768.0755. 7. For the following reasons, the Court should deny Defendant’s Motion to Dismiss, as Plaintiff’s Complaint properly pleads a cause of action for negligence. MEMORANDUM OF LAW I. Motions to Dismiss. 3 The Defendant’s Motion to Dismiss should be denied, however, because (1) Florida Statute §768.0755(2) preserves common law duties on the part of the owner/operator, and an examination of the history and evolution of the negligent mode of operation theory demonstrates that it arises out of the common law duties of premises owners/operators; and (2) a claim for negligent mode of operation only obviates proof of the element of knowledge because actual knowledge is presumed where a premises owner/operator creates the dangerous condition or “zone of foreseeable risk”. Carls Markets v. Meyer, 69 So.2d 789, 791 (Fla. 1953); Food Fair Stores of Florida, Inc. v. Moroni, 113 So.2d 275 (Fla. 2nd DCA 1958). Because Defendant requested alternative relief in their wherefore clause, Plaintiff would further provide that “[a] Motion to Strike will be denied unless the allegations at issue are “wholly irrelevant, can have no bearing upon the equities and no influence upon the decision either as to the relief to be granted or the allowance of costs.” Town of Howey-in-the-Hills v. Graessie, 36 So. 2d 619 (Fla. 1948); Rice-Lamar v. City of Fort Lauderdale, 853 So. 2d 1125 (4th DCA 2003) (applying this principle to Fla. R. Civ. P. 1.140(f)). Regardless of the Court’s ruling now, Defendant would be able to later pursue similar relief under 1.140(f), if they desired. However, at the pleading stage, the Defendant’s Motion to Dismiss, based solely on the four corners of the one count Negligence Complaint filed by Plaintiff, should be denied. II. Florida Statute §768.0755 Acts to Shift the Burden of Proof to the Plaintiff and Does Not Abrogate Common Law Theories of Negligence Florida’s Transitory Foreign Substance Statute did nothing to change how negligence can be pled. Instead, it simply shifted the burden of proof to Plaintiff to show the business establishment had actual or constructive knowledge of the dangerous condition created by a 4 business’s negligence. Under §768.0755, “the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition .. .” As the Court in Kenz explained, “section §768.0755 does not operate to alter a prima facie case for a negligence claim[;] rather, it concerns evidence, the burden of producing which is upon the plaintiff, that the jury must consider in determining whether there has been a breach of duty.” Kenz at 466. Plaintiff can still succeed in a slip and fall case by showing the business premises acted negligently in the maintenance, inspection, repair, warning, and mode of operation, to the extent the Plaintiff can prove said negligence resulted in the actual or constructive knowledge of the condition by the business. Nowhere in any Florida cases does it state that causes of action for negligent maintenance, inspection, repair, warning, or mode of operation were abrogated by the 2010 statute. In the case at bar, Defendant argues Plaintiff can only argue as a theory of liability that Defendant had actual or constructive knowledge of the dangerous condition, and not the ways in which the Defendant acted negligently. In reality, Plaintiff must argue duty and breach as elements of negligence, but still maintains the burden to prove the Defendant’s negligence resulted in their actual or constructive knowledge of the dangerous condition. III. Defendant’s Position Would Act to Abolish Simple Negligence in Transitory Foreign Substance Cases In Defendant’s Motion, they argue the duty to maintain, the duty to inspect, the duty to repair, the duty to train, and the duty to comply with their own policies and procedures, asserts negligent operations of the business; and therefore, these allegations are based on the repealed statutory theory of Negligent Mode of Operation. Essentially, Defendant argues the only issue 5 Plaintiff can plead in a transitory foreign substance case is that the Defendant had actual or constructive knowledge of the condition. A well-established and recently affirmed principle in Florida finds, “[a] premises liability claim is a negligence claim with the added elements of possession or control of the premises, and notice of the dangerous condition. Oliver v. Winn-Dixie Stores, Inc., 291 So. 3d 126 (Fla. 4th DCA 2020). Similar to the case at bar, Oliver involveda slip and fall incident in a grocery store on a transitory foreign substance. /d. at 127. Although the issue involved summary judgment proceedings, the Court introduced the issues by explaining that premises liability claims are a form of negligence claims. /d. at 128. The Court then explained for Winn-Dixie to prevail on summary judgment, they had to show no genuine issues of material fact about any one of the following: (i) its duty to Oliver; (ii) whether it breached the duty; (iii) whether there was causal connection between its breach and Oliver’s fall; (iv) Oliver’s damages; (v) that it lacked control of the premises; or (vi) that it did not have constructive notice of the grape or surrounding liquid on the floor. /d. If the defendant in Oliver could show there were no genuine issues of material fact on any one of those elements, summary judgment would be granted. In the case at bar, Defendant confuses the duty / breach allegations in Plaintiff's Complaint, with the notice requirement under §768.0755. In applying Defendant’s logic to the analysis in Oliver, every single defendant in every transitory foreign substance case would prevail on summary judgment as plaintiffs could not plead duty/breach in their complaints and can only plead actual or constructive knowledge. If Plaintiff in this case cannot argue Defendant owed and breached the duties outlined in 49 and 15, then under the Oliver analysis, summary judgment would be entered for Defendant as there are no genuine issues of material fact as to (1) 6 duty to Plaintiff and (ii) breach of the duty, as Plaintiff is not even allowed to plead duty and breach under theories of negligence. IV. Negligent Mode of Operation is Proof of Actual Knowledge Under §768.0755 Although defendants routinely argue negligent mode of operation no longer exists, negligent mode of operation is a subset of actual knowledge under 768.0755. Said another way, in alleging duty and breach of negligent mode of operation, Plaintiff can still prove actual knowledge of the dangerous condition sufficient to meet her burden under §768.0755. Former Chief Judge of the Fifth District Court of Appeals of Florida, Thomas Sawaya, authored a treatise in October 2016, post-enactment of §768.0755, directly on this issue. 6 Fla. Prac., Personal Injury & Wrongful Death Actions §10:13 (2016-2017 ed.).' As Judge Sawaya explained, “the dispositive issue is whether the specific method of operation was negligent and whether the accident occurred as a result of that negligence.” /d. Furthered, “when the act of negligence is the method of operation employed by the owner or operator of a business, he is the creator of the dangerous condition and he must, by that very fact, know about and be responsible for his creation.” Jd. Using the analysis offered by Judge Sawaya, mode of operation remains a basis to show and prove actual or constructive knowledge. This is true as the choice to utilize said mode of operation itself creates actual knowledge of the part of the owner or operator. This idea is not new or novel as the Fifth District explained in 2001, “actual knowledge of a dangerous condition exists when the restaurant’s employees or one of its agents knows of or creates the dangerous condition.” Barbour v. Brinker Florida, Inc., 801 So. 2d 953 (Fla. 5d DCA 2001). "Note this was authored after some of the Federal Court cases relied upon Defendant. 7 Defendant relies heavily on the argument outlined in Pembroke Lakes Mall, Ltd. v. McGruder, 137 So. 3d 418, 426 (Fla. 4th DCA 2014): “Under the 2002 statute, a plaintiff could succeed in a slip and fall case by showing ‘the business premises acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises,’ without showing the business had actual or constructive knowledge of the transitory foreign substance. Under the 2010 statute, however, the same plaintiff would be unable to successfully assert such a cause of action, no matter how persuasive or compelling the evidence that plaintiff had in support of the claim.” /d. at 426. What is interesting is the emphasis Defendant in this case added to the Court’s analysis of McGruder to have it appear the 2010 statute abolished causes of action for negligent maintenance, inspection, repair, warning, and mode of operation. If instead, we read the analysis as a whole, we see the clear distinction between the two statutes is knowledge of the substance. If we look again at the paragraph above, the distinction is clear in that under the 2002 statute, a plaintiff could succeed in a slip and fall case by showing the business premises acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning or mode of operation .. . without showing the business had actual or constructive knowledge . . /d. (emphasis added). In 2018 the Barbour case was cited by the United State District Court for the Southern District of Florida affirming the proposition that a premises owner has actual knowledge of a dangerous condition when its employees or agents know of or create the dangerous condition. Toruno vy. Sam’s East, Inc., WL 3934653, at 3 (S.D. Fla. July 25, 2018), report _and recommendation adopted, 2018 WL 3882931 (S.D. Fla. Aug. 1, 2018). The Court in Toruno analyzed the issue under §768.0755, finding the burden of proof of actual knowledge under the statute is met in showing an employee or agent created the dangerous condition. 8 The logical connection between the treatise authored by Judge Sawaya in 2016 and the analysis outlined in Barbour and Toruno, clearly explains that when a business employs certain methods of operation which result in the creation of a negligent condition, actual knowledge is imputed on the business as the creator of the condition, sufficient to meet the burden of actual knowledge under $768.0755. V. Statutory Interpretation. Below is a copy of the prior repealed statute, which I have cited below for the Court’s convenience: 768.0710 Burden of proof in claims of negligence involving transitory foreign objects or substances against persons or entities in possession or control of business premises.-- (1) The person or entity in possession or control of business premises owes a duty of reasonable care to maintain the premises in a reasonably safe condition for the safety of business invitees on the premises, which includes reasonable efforts to keep the premises free from transitory foreign objects or substances that might foreseeably give rise to loss, injury, or damage. (2) In any civil action for negligence involving loss, injury, or damage to a business invitee as a result of a transitory foreign object or substance on business premises, the claimant shall have the burden of proving that: (a) The person or entity in possession or control of the business premises owed a duty to the claimant; (b) The person or entity in possession or control of the business premises acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises. Actual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim. However, evidence of notice or lack of notice offered by any party may be considered together with all of the evidence; and (emphasis added). Plaintiff would suggest that a interpreting this repeal in Defendant’s positions, would require any reference to negligent maintenance, negligent inspection, negligent repair, or failing 9 to warn also be stricken. Notably, Defendant has not asked that any of the paragraphs pertaining to maintenance or repair, or the duty to warn be stricken. The statute as amended merely shifts the burden to the Plaintiff to prove actual or constructive knowledge. Was it the intent of the legislature to repeal causes of action for negligent maintenance, negligent repair, negligent warning, failing to perform proper inspections by enacting Fla. Stat. 768.0755? No. Nor was it their intent to remove theories of negligent mode of operation, so long as the news burdens of knowledge and possession are met. VI. ~The Change in the Law is Merely Procedural. In Kenz v. Miami-Dade County & Unicco Serv. Co., 116 So.3d 461 (Fla. 31a DCA 2013), as part of reviewing a granting of summary judgment related to the previous and current versions of the statute, the Third DCA looked at section 768.0755 for the question of whether it was a procedural change in the law, or a substantive change. The Third DCA held that the actual or constructive knowledge language in the statute is not a new required element of a prima facia case for negligence and does not alter a case for negligence. Rather, it concerns the type of evidence that the jury may consider in determining whether there has been a breach of duty, or in other words, the means and method to show the defendant has breached its duty of care. See Kenz, at 464. Thus, the Third DCA held that because the change in the statute is related to the plaintiff's burden of proof, it is a procedural change. See also Hicks v. State, 277 So.3d 153 (Fla. Ist DCA 2019)(citing Kenz for holding that new statute concerning burden of proof is procedural). Florida law holds that substantive law prescribes duties and rights of a party, and procedural law only concerns the means and methods to apply and enforce those duties and rights. See Benyard v. Wainwright, 322 So.2d 473, 475 (Fla. 1975); see Alamo Rent-A-Car v. 10 Mancusi, 632 So.2d 1352 (Fla. 1994). Because the transitory substances statute is procedural in nature, rather than substantive law, it cannot eliminate causes of action that arise out of common law. While Plaintiff concedes that the level of proof that is required of the Plaintiff under the negligent mode of operation subset of negligence has changed, nothing in a procedural statute can abolish the underlying negligence claim itself.” CONCLUSION Under Defendant’s position, simple negligence no longer exists in Florida as a result of Florida Statute §768.0755. In reality, Florida Statute §768.0755 acts to shift the burden of proof of knowledge to the Plaintiff and does not affect any common-law duties owed to Plaintiff. Post- enactment of Florida Statute §768.0755 Plaintiff must still prove negligence in order to state a valid cause of action; however, Plaintiff must also prove the Defendant had actual or constructive knowledge of the dangerous condition they created or allowed to exist. Negligent mode of operation still exists to the extent it results in the creation of a dangerous condition proving actual knowledge under Florida Statute §768.0755. Plaintiff's Complaint outlines the duties owed and breached with respect to Plaintiff, and have no effect on Plaintiffs obligation under Florida Statute §768.0755 to prove actual or constructive knowledge on the part of the Defendant. WHEREFORE, Plaintiff respectfully requests this Court enter an Order denying Defendant’s Motion to Dismiss, and for any and all other relief this Court deems just and proper. * It is undisputed that the Negligent Mode of Operation Cause of Action existed prior to 2001. 11 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on December 9, 2021, I electronically filed the foregoing with the Clerk of the Courts by using the Florida Courts eFiling Portal which will send notice of filing to: Michele D. Morales, Esquire (mmorales.pleadings@qpwblaw.com), Quintairos, Prieto, Wood & Boyer, P.A., 255 S. Orange Avenue, Suite 900, Orlando, Florida 32801; . Jeffrey Glotzer, Esquire (mchusid@ritterchusid.com; jglotzer@ritterchusid.com), Ritter Chusid, LLP, 5850 Coral Ridge Drive, Ste. 201, Coral Springs, Florida 33076. ___/s/ Brandon M. Smith Brandon M. Smith, Esq. FBN 118916 Morgan & Morgan, P.A. 20 N. Orange Avenue, Suite 1600 Orlando, FL 32802-4979 Telephone: (407) 420-1414 Primary Email: brandonmsmith@forthepeople.com Secondary email: egarcia@forthepeople.com Attormey for Plaintiff 12 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA ZAHRA BOURASS, CIRCUIT CIVIL DIVISION Plaintiff, CASE NO. 2016-CA-002515-ON ¥s, PUBLIX SUPER MARKETS, INC., Defendant. ee| THIS MATTER came on for hearing on March 27, 2018, on the above motion, and the Court having reviewed the pleadings, the summary judgment evidence, and having heard argument of counsel, and being duly advised in the premises, states it is hereby: ORDERED AND ADJUDGED as follows: I. Defendant’s Motion for Summary Judgment on Count | is Denied. There is a genuine issue of material fact as to whether the pled dangerous condition involving the object occurred with regularity. 2. Defendant’s Motion for Summary Judgement on Count 2 is Denied. The repeal of Fla. Stat. 768.0710 did not eliminate the “negligent mode of operation” cause of action.” ' See Lago y, Costco Wholesale, 233 So.3d 1248, 1250 n.2 (Fla. 3d DCA 2017) (transitory foreign substance under Fla. Stat. 768.0755 includes objects). 2 The Florida StaffAnalysis of H.B, 689 on March 1, 2010 provided “Proposed Changes HB 689 repeals s. 768.0710, F.S. and approximates the law with respect to slip and fall suits as it existed before 2001.” Page | of2 DONE: AND ORDERED at Kissimmee, Usceula County. Florida. this £5 day-of naVeo »2018. \, Honorable Mike Murphy \ - CIRCUIT JUDGE CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true. and correct copy of the foregoing was served via U.S. Regular Mailon March .2018. to all counsel ofrecord on the service list below: Amal Laassel. Esquire Amal Laassel, P.A, 1650 Sand Lake Rd., Suite 114-A Orlando, FL 32809 . amal.claassellaw.com: mieonard’a lpassellaw.com: dservicea laassell.com Juseph P. Menello, Lisquire WICKER SMITH O'MARA McCOY & FORD, P.A. 391) N, Orange Ave.. Suite 1000 Orlando, FL 32801 . . ORicrtpleadings<(twickersmith.com; jmenello(@wickersmnith.com Original Signed APR 02 2018 Judicial Assistant for Judge Murphy Puge 2 of2 IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CIRCUIT CIVIL DIVISION CASENO: ye Ope Plaintiff(s), “ ORDER GRANTING/DENYING a PLAINTIFF’S/DEFENDANT’S Defendant(s), a THIS CAUSE having come on to be heard on ea one on Plainuff’s/Defendant’s Motion TN wh Se a Cee a boa - — van okt ae ae oye and the Court having heard arguments of counsel, and being otherwise advised in the premises, it is hereupon _ ORDERED AND ADJUDGED that said Motion be, and the same is hereby DONE AND ORDERED in Chambers at Miami-Dade County. Florida this day of oof CIRCUIT COURT JUDGE ™ Copies furnished to: Counsel of Record ~ LIT_OL-SS4 4/1 Poke Py rg COM Ose yh or) re 7 Mi pu QB : mo : } an j Filing # 74531537 E-Filed 07/05/2018 04:43:18 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA CASE NO: 2018-CA-001279-O VIVIENNE HUNT, Plaintiff, vs. WALMART STORES EAST, LP, Defendant. / ORDER ON DEFENDANT’S MOTION TO DISMISS/MOTION TO STRIKE THIS CAUSE having come before the Court on June 28, 2018, on Defendant’s Motion to Dismiss/Motion to Strike, and the Court having been fully advised in the premises, states it is hereby: ORDERED and ADJUDGED that 1. Defendant’s Motion to Dismiss/Motion to Strike Plaintiff's claim for negligent mode of operation as set forth in paragraph 7(1) of the Complaint is DENIED. 2. Defendant’s Motion to Dismiss/Motion to Strike Plaintiff's claims as set forth in paragraph 7(g) of the Complaint is DENIED. 3. Defendant shall file and serve an Answer to Plaintiff's Complaint within twenty (20) days of entry of this Order. DONE and ORDERED in Chambers, Orange County Courthouse, Orlando, Florida, this 5 da macho 8 —___—dayo ; . Circuit Court Judge CERTIFICATE OF SERVICE I HEREBY CERTIFY that on Duly 5, 20185 . I electronically filed the foregoing with the Clerk of the Courts by using the Florida Courts eFiling Portal. I further certify that Pursuant to Rule 2.516(b)(1) I forwarded the foregoing this same day via: o Email, o U.S. Mail — postage paid, 0 facsimile transmission, to: Counsel for the Plaintiff, WARUN RAMNARINE, ESQUIRE, P.O. Box 4979, Orlando, FL 32802-4979, and to Counsel for the Defendant, KATHERINE MCKINLEY, ESQUIRE and TAI PHETSANGHANE, ESQUIRE, Zimmerman, Kiser & Sutcliffe, P.A., 315 E. Robinson Street, Ste 600 P.O. Box 3000, Orlando, FL 32802 [primary email: tai@zkslawfirm.com: secondary email: mwilson@zkslawfirm.com] Jd} aoe IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA co - j a } i Lan boda ee eee! C. ow t ff CLA © cAY7) ae 5 CASE NO:: DIVISION: pe ‘a OfFf ©)v 7 CF 40 “4 j meePD)‘| AS t ooOL py (.. ; Plaintiff(s), ; VS. oe cer itinns BINVE Hover ft C Defendant(s). ORDER | perf) of f | THIS MATTER, came on for consideration/hearing on the / © “ a day of L C7 Pipta- oO eit whe . ” “ 4 - 20 ! on the Plaintiff ra / Befendany’s Motion . Ree Sua SS / Ske. Coumt es ‘ . wo reer a! raed } j, fee et - ¢ - —) 9? — v— ee ee FF A te ty ee de FF a A Co PO BOE TON "OD EAE gi ptpcrPt and the Court having reviewed the pleadings, having heard argument of counsel, and being ““j°*@*7/7) 4-1 otherwise duly advised in the premises, it is hereby la ; A ope AdP ore Nef. Pp , ORDERED and ADJUDGED as follows: §#@ AY ED. bet Oxy Jae os spo: j i, ; ae Aos La a dd [4 Bit i ; * o Th/ . fir fvy’a) é OF AAS/ foot am, weollns j : fo wy . & oy P fy4é ama, ithe cri bbe FP) FRI DAT. fom ths DONE and ORDERED at Orlando, Orange County, Florida this pa. “7 day of YT 20 . yo “ye, ao | Oo Circuit Judge \ Copies furnished to: Plaintiff Defendant - March 2014 Filing # 75048328 E-Filed 07/17/2018 10:15:21 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA CASE NO: 2018-CA-001705-O DEBRA LOEB, Plaintiff, vs. PUBLIX SUPER MARKETS, INC., Defendant. ee ORDER ON DEFENDANT’S MOTION TO DISMISS/MOTION TO STRIKE | THIS CAUSE having come before the Court on July 16, 2018, on Defendant’s Motion to Dismiss and/or Strike Paragraph 7(e) through 7(i) of Plaintiff's Complaint, and the Court having been fully advised in the premises, states it is hereby: ORDERED and ADJUDGED that 1. Defendant’s Motion to Dismiss and/or Strike Plaintiff's claims for negligent mode of operation as set forth in Paragraph 7(e) through 7(i) of Plaintiff's Complaint is DENIED. 2. Defendant shall file and serve an Answer to Plaintiff's Complaint within twenty (20) days of entry of this Order. lyew and ORDERED day ofJuly, 2018. in Chambers, Orange County Courthouse, Orlando, Florida, this Circuit Court Judge CERTIFICATE OF SERVICE I HEREBY CERTIFY that on Ji, fy J Z ZLAS I electronically filed the foregoing with the Clerk of the Courts by using the Florida Courts eFiling Portal. I further certify that Pursuant to Rule 2.516(b)(1) I forwarded the foregoing this same day via: pémail, a U.S. Mail — postage paid, 0 facsimile transmission, to: Counsel for the Plaintiff, VARUN RAMNARINE, ESQUIRE, P.O. Box 4979, Orlando, FL 32802-4979, and to Counsel for the Defendant, CHRISTINE V. ZHAROVA, ESQUIRE and RICHARD 5S. WOMBLE, ESQUIRE, Rissman, Barrett, Hurt, Donahue, McLain & Mangan, P.A., 201 , East Pine Street, 15th floor Post Office Box 4940, Orlando, FL 32802 [primary email: rsw.service@rissman.com; cvz.service@rissman.com] Loeb v. Publix Super Markets, Inc. Case#: 2018-CA-001705-O Order on Defendant’s Motion to Dismiss and/or Strike Paragraph 7(e) through 7(i) of Plaintiffs Complaint Page 2 of2 IN THE CIRCUIT COURT OF THE JUDICIAL CIRCUIT IN AND FOR VOLUSIA COUNTY, FLORIDA KELLY SMITH , Plaintiff, vs. CASE NO: 2019-CA-032111 PUBLIX SUPER MARKETS, INC, Defendant. a ORDER ON DEFENDANT’S SUPPLEMENTAL MOTION TO DISMISS AND PLAINTIFF’S MOTION FOR RECONSIDERATION OF THE MAY 7, 2020 ORDER THIS CAUSE, having come on to be heard upon the Defendant’s Supplemental Motion to Dismiss and Plaintiff's Motion for Reconsideration of the May 7, 2020 Order, the Court ORDERED and ADJUDGED: 1. Defendant’s Supplemental Motion to Dismiss is DENIED. 2. Plaintiff's Motion for Reconsideration of the May 7, 2020 Order is DENIED. DONE AND ORDERED in Chambers in Volusia County, Florida, on this___ day of ___ day of June, 2020. 6/24/2020.41:55 AM 2019 e-Signed 6/24/2020 11:55 AM 2019 32111 CICI HONORABLE LEAH R. CASE Circuit Court Judge CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via the efiling portal to: Tyler Kobylinski, Esquire, Morgan & Morgan, P.A., and Alysse Vautier, Esquire, Wicker, Smith, O'Hara, McCoy & Ford, P.A. Judicial Assistant Case 0:21-cv-60828-AHS Document 16 Entered on FLSD Docket 06/07/2021 Page 1 of 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 21-60828-CIV-SINGHAL/VALLE CRUZ MARQUEZ, Plaintiff, V. BJ’S WHOLESALE CLUB, INC., Defendant. | ORDER ON MOTION TO STRIKE THIS CAUSE is before the Court on Defendant’s Motion to Strike Allegations of Negligent Mode of Operation from Plaintiffs Complaint (DE [5]). Plaintiff has filed a Response in Opposition (DE [9]), and Defendant has filed a Reply (DE [14]). For the reasons discussed below, the Court denies Defendant’s Motion. I. BACKGROUND Plaintiff filed a two-count Complaint in state court against Defendant for “premises liability” and “negligence under the non-delegable duty doctrine” arising out of injuries Plaintiff sustained when she slipped and fell on an “applesauce-like substance” on the floor at Defendant’s store. Compl. (DE [1-1], at 6-13). Relevant to this Motion, Defendant takes issue with the following mode-of-operation theories of negligence alleged in paragraphs 10 and 16 of the Complaint: f) Negligently failing to have adequate staff on duty and/or assigned to the task of inspecting and/or maintaining the shopping aisle flooring for dangerous conditions; Case 0:21-cv-60828-AHS Document 16 Entered on FLSD Docket 06/07/2021 Page 2 of 10 i) Negligently failing to have adequate policies in place to identify dangerous conditions that may have accumulated on the shopping aisle flooring despite knowledge of prior slip and falls at the subject location caused by transitory foreign substances or other dangerous conditions that were not timely identified by Defendant's employees and corrected/remedied or for which notice was given to guests at the premises; 1) Negligently failing to assign specific associates/employees to the task of solely monitoring the floor in the subject premises for dangerous conditions and correcting/remedying said conditions and/or warning guests of said conditions similar to the way in which specific associates/employees were assigned to the task of solely cleaning/sanitizing shopping carts and/or handbaskets or counting the number of guests entering/exiting the premises during the COVID-19 pandemic as safety precautions; n) Negligently engaging in a mode of operations when Defendant knew, or should have known, that said mode of operations would result in dangerous conditions to the general public, including the Plaintiff herein; [and] 0) Negligently engaging in routine or regular practice of business that was not the reasonable custom of the community[.] Compl. (DE [1-1], at 8-9, 11)'. Defendant now moves to strike these allegations from the Complaint on the basis that the theory of negligent mode of operation in slip and fall cases has been repealed by the Florida Legislature and is no longer a viable theory of recovery. ll. LEGAL STANDARD Under Federal Rule of Civil Procedure 12(f), “[t]he court may strike from a pleading ...any immaterial, impertinent, or scandalous matter.” Rule 12(f) is designed to “clean up the pleadings, streamline litigation, and avoid unnecessary forays into immaterial matters.” Munro v. Fairchild Tropical Botanic Garden, Inc., 2020 WL 7865415, at *1 (S.D. Fla. Nov. 4, 2020) (quoting Wiand v. Wells Fargo Bank, N.A., 938 F. Supp. 2d 1238, 1251 (M.D. Fla. 2013)). But motions to strike “are not favored ... and will usually be denied 1 The page numbers of the Complaint at (DE [1-1]) refer to the CM/ECF-generated page numbers. 2 Case 0:21-cv-60828-AHS Document 16 Entered on FLSD Docket 06/07/2021 Page 3 of 10 unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties.” Belin v. Health Ins. Innovations, Inc., 2019 WL 9575236, at “13 (S.D. Fla. Oct. 22, 2019), report and recommendation adopted, 2019 WL 9575230 (S.D. Fla. Dec. 30, 2019) (omission in original) (quoting King v. Metro. Life Ins. Co., 331 F. Supp. 2d 1361, 1362 (M.D. Fla. 2003)). lll. DISCUSSION Defendant asserts that subparts (f), (i), (/), (n), and (0) of paragraphs 10 and 16, impermissibly reference Defendant’s mode of operation, which is now a defunct theory of liability under Florida slip-and-fall law. Under a common-law premises liability claim, “[b]usiness owners owe invitees a duty: ‘(1) to take ordinary and reasonable care to keep its premises reasonably safe for invitees[,] and (2) to warn of perils that were known or should have been known to the owner and of which the invitee could not discover.” Espinoza v. Target Corp., 843 F. App’x 168, 171 (11th Cir. 2021) (second alteration in original) (quoting Norman v. DCI Biologicals Dunedin, LLC, 301 So. 3d 425, 428 (Fla. 2d DCA 2020)); see also Oliver v. Winn-Dixie Stores, Inc., 291 So. 3d 126, 128 (Fla. 4th DCA 2020) (“A premises liability claim is a ‘negligence claim with the added elements of possession/control of the premises, and notice of the dangerous condition.” (quoting Bechtel Corp. v. Batchelor, 250 So. 3d 187, 200 (Fla. 3d DCA 2018))). In Owens v. Publix Supermarkets, Inc., 802 So. 2d 315 (Fla. 2001), the Florida Supreme Court adopted the following standard in “slip-and-fall cases in business premises involving transitory foreign substances”: We hold that the existence of a foreign substance on the floor of a business premises that causes a customer to fall and be injured is not a safe condition and the existence of that unsafe condition creates a rebuttable presumption that the premises owner did not maintain the premises in a reasonably safe condition. 3 Case 0:21-cv-60828-AHS Document 16 Entered on FLSD Docket 06/07/2021 Page 4 of 10 Thus, once the plaintiff establishes that he or she fell as a result of a transitory foreign substance, a rebuttable presumption of negligence arises. At that point, the burden shifts to the defendant to show by the greater weight of evidence that it exercised reasonable care in the maintenance of the premises under the circumstances. The circumstances could include the nature of the specific hazard and the nature of the defendant's business. Id. at 331 (footnote omitted). The court also reaffirmed the theory of negligent mode of operation: [W]e recognize the continued viability of the mode of operation theory. If the evidence establishes a specific negligent mode of operation such that the premises owner could reasonably anticipate that dangerous conditions would arise as a result of its mode of operation, then whether the owner had actual or constructive knowledge of the specific transitory foreign substance is not an issue. The dispositive issue is whether the specific method of operation was negligent and whether the accident occurred as a result of that negligence. Id. at 332. Consistent with Owens, in 2002, the Florida Legislature codified the mode-of- operation theory in cases involving transitory foreign substances: (2) In any civil action for negligence involving loss, injury, or damage to a business invitee as a result of a transitory foreign object or substance on business premises, the claimant shall have the burden of proving that: (b) The person or entity in possession or control of the business premises acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises. Actual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim. However, evidence of notice or lack of notice offered by any