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Filing # 158419543 E-Filed 10/02/2022 12:32:55 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
JOSEPH GIFFIN, CASE NO.: 2021-CA-001411-ON
Plaintiff,
vs.
KATHARINE BAKER,
Defendant.
/
MOTION FOR FINAL SUMMARY JUDGMENT
COMES NOW, Defendant KATHARINE BAKER, by and through undersigned counsel
and pursuant to Fla. R. Civ. P. 1.510, moves this Honorable Court for entry of final judgment in
her favor as a matter of law. As grounds for this Motion, MS. BAKER states that the pleadings,
depositions, discovery, and evidence in the record demonstrate there is no genuine issue of material
fact and MS. BAKER is entitled to final summary judgment as a matter of law. MS. BAKER
hereby files this Motion for Final Summary Judgment and as grounds therefore, states:
INTRODUCTION
In the early morning hours of February 23, 2020, Plaintiff, JOSEPH GIFFIN was driving
near King’s Highway and Neptune Road, in Kissimmee, Florida, when he struck a cow (the
“offending cow”) with his vehicle. (Am. Compl. ¶¶ 7, 9). Without any supporting evidence,
Plaintiff alleges the offending cow was owned by Defendant, KATHARINE BAKER and her now-
deceased husband. (Am. Compl. ¶ 8). Pursuant to the Amended Complaint, Plaintiff’s theory of
liability stems from a presumption that because the subject collision occurred adjacent to MS.
BAKER’S property, she must be responsible the offending cow. However, this reasoning is fatally
flawed and unsupported by the evidence.
Plaintiff has now filed suit, bringing a single claim against MS. BAKER under a premises
liability theory. As demonstrated below, there is no evidence establishing that the offending cow
belonged to MS. BAKER. There is also no evidence demonstrating that MS. BAKER owned/kept
the cow in question; that she failed to maintain any of the fencing along her property; or that she
had any knowledge of prior instances of roaming cattle. Additionally, Plaintiff cannot provide any
explanation/support which demonstrates how the offending cow would have escaped through any
section of fencing along MS. BAKER’S property, beyond impermissible speculation and inference
stacking. Therefore, Plaintiff cannot establish any duty owed to him by MS. BAKER, or breach of
said duty, and final summary judgment is warranted.
MATERIAL FACTS
1. In the early morning hours of February 23, 2020, Plaintiff was delivering
newspapers along King’s Highway and Neptune Road, in Kissimmee, Osceola County, Florida.
(Am. Compl. ¶ 7; Pl.’s Ans. to Roggs attached as Exhibit “A”).1 Thereafter, Plaintiff encountered
a cow, ultimately striking it with his vehicle. (Am. Compl. ¶ 8-9; Exhibit “A”). 2
2. Without support, Plaintiff alleges the offending cow was owned by Defendant,
KATHARINE BAKER and her now-deceased husband. (Am. Compl. ¶ 8).
3. In an attempt to establish a duty owed, Plaintiff claims to have been a guest at “the
retail establishment, lawfully upon the premises” of MS. BAKER.” (Am. Compl. ¶ 10). However,
this accounting of events is inconsistent with Plaintiff’s Answers to Interrogatories, No. 08,
wherein Plaintiff indicates he was delivering newspapers at the time of the incident, and with other
portions of the Amended Complaint itself, wherein Plaintiff alleges he was “accessing the public
1
Plaintiff’s claim may also be barred pursuant to Ch. 440, Fla. Stat. (addressed via separate motion).
2
The Amended Complaint is inconsistent with Plaintiff’s Answers to Interrogatories, No. 08, wherein Plaintiff states
that “[Katharine] Baker’s bull rammed my vehicle.” (Exhibit “A”).
2
road adjacent to the Defendant’s premises” at the time of the collision. (Am. Compl. ¶ 12
(emphasis added); see also Exhibit “A”).
4. As for causing the incident, Plaintiff alleges MS. BAKER (i) failed to maintain her
fence; (ii) failed to inspect her fence; (iii) failed to warn “of the danger of the fencing,” and (iv)
failed to correct the fence. (Am. Compl. ¶ 11).
5. Proving fatal to his claim, the cow Plaintiff struck did not belong to MS. BAKER.
As pictured below, the offending cow had no identification marks and/or carrier branding.3
Crucially, every head of cattle MS. BAKER owned as of February 23, 2020, was carrier branded
with her farm’s identifying marks.
6. Additionally, the cow (as pictured) has no earmarks. As of February 23, 2020, MS.
BAKER’s cattle had specific ear markings used for identification.
3
This photograph is the sole evidence depicting the offending cow. During initial discovery, Plaintiff claimed to not
have any photographs of the cow. Though, this was untrue. During his deposition, for the first time, Plaintiff
acknowledged that he did, in fact, have a photograph. (See Plaintiff’s Response to Defendant’s Request for Production,
No. 13-14, attached as Exhibit “B”).
3
7. As of February 23, 2020, none of the cattle owned by MS. BAKER had the horn
stature of the offending cow.4
8. More, at no time after February 23, 2020, was MS. BAKER missing any head of
cattle. In fact, all of her cattle were known to her and had been accounted for. Additionally, MS.
BAKER and her staff/family had no involvement in moving any deceased cows from the roadway
and she did not become aware of any alleged incidents until this suit commenced.
9. Again, Plaintiff’s sole piece of evidence for establishing ownership of the offending
cow is this photograph. Nobody knows what happened to the cow after the incident; who removed
it from the side of the road (or how), or where the cow ultimately ended up.
10. With the entirety of the evidence as it regards the offending cow now known, there
exists no evidence which could establish that the cow, as pictured, belonged to MS. BAKER.
11. Even assuming, arguendo, that the offending cow belonged to MS. BAKER (it did
not), Plaintiff cannot establish how the cow got out of its enclosure beyond impermissible
speculation and inference stacking, as there is no evidence or witnesses with knowledge.
12. Therefore, Plaintiff cannot meet his burden of establishing any duty owed to him
by MS. BAKER and final summary judgment is warranted.
SUMMARY JUDGMENT STANDARD
Summary judgment is governed by Rule 1.510(c) of the Florida Rules of Civil Procedure.
As of May 1, 2021, Florida has adopted the federal summary judgment standard of review
articulated by the United States Supreme Court in Celotex Corp. v. Catreti, 477 U.S. 317 (1986),
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Electric Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574 (1986), and Rule 1.510 has been amended to largely adopt the
4
The offending cow would have been easily identifiable as 90% of the cattle owned by MS. BAKER are of a whiteish-
gray color and not the color as pictured.
4
text of Federal Rule of Civil Procedure 56 to implement that change. 5 See In re Amendments to
Florida Rule of Civil Procedure 1.510, 309 So. 3d 192 (Fla. 2020) (hereinafter, “2020
Amendment”); In re Amendments to Florida Rule of Civil Procedure 1.510, 2021 WL 1684095,
*1 (Fla. 2021) (hereinafter, “2021 Amendment”). Florida courts will now align with federal court
jurisprudence and interpretation of the summary judgment standard, which is “more rational, more
fair, and more consistent with the structure and purpose of [Florida’s] rules of civil procedure.”
2020 Amendment, 309 So. 3d at 194. Under the text of the amended Rule 1.510, the Court should
grant summary judgment to a movant who shows, based on record evidence including depositions,
documents, answers to interrogatories, admissions, affidavits, and declaration, “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fla. R.
Civ. P. 1.510(a), (c) (eff. May 1, 2021); see also Fed. R. Civ. P. 56(c).
The changes to Florida’s standard of review were made with the goal of improving the
“fairness and efficiency of Florida’s civil justice system to relieve parties from the expense and
burdens of meritless litigation, [] to save the work of juries for cases where there are real factual
disputes that need resolution,” and to carry out the spirit of the rules of civil procedure “to secure
the just, speedy, and inexpensive determination of every action.” 2020 Amendment, 309 So. 3d at
194; 2021 Amendment, 2021 WL 1684095 at *2 (quoting Celotex, 477 U.S. at 327). In furtherance
thereof, courts must abandon prior features of Florida jurisprudence that have “unduly hindered
the use of summary judgment” in Florida. Id. (citing 2020 Amendment, 309 So. 3d at 192–93).
Summary judgment affords the Court an opportunity to “isolate and dispose of factually
5
The new standard applies to any motion decided on or after May 1, 2021, regardless of when the case was initiated
or the motion was filed. See 2021 Amendment, 2021 WL 1684095 at *4 (“New rule 1.510 takes effect May 1, 2021.
This means that the new rule must govern the adjudication of any summary judgment motion decided on or after that
date, including in pending cases.”). If a summary judgment motion has previously been denied, the Court should give
the parties a reasonable opportunity to file renewed motions under the new standard. Id.
5
unsupported claims or defendants,” and the standard of review “should be interpreted in a way that
allows [the Court] to accomplish [that] purpose.” Id. (quoting Celotex, 477 U.S. at 323–24). In
applying this new standard in Florida, courts can look to well-established precedent and the body
of case law interpreting and applying Federal Rule of Civil Procedure 56.
With the adoption of the federal standard comes two significant differences to Florida
courts’ review on summary judgment. The first regards the burden of proof. Florida has long
required that, to prevail on summary judgment, a movant must affirmatively demonstrate a lack of
genuine issue of material fact, essentially requiring the movant “to disprove the nonmovant’s
theory of the case in order to eliminate any issue of fact.” 2020 Amendment, 309 So. 3d at 193
(citation omitted). That is, to prevail to summary judgment, a movant historically has had to show
that the nonmovant could not prove its case. See Hervey v. Alfonso, 650 So. 2d 644, 645–46 (Fla.
2d DCA 1995) (“The party moving for summary judgment has the burden of establishing
irrefutably that the nonmoving party cannot prevail.”). In aligning with the federal courts, a state
court movant can now obtain summary judgment without disproving the nonmovant’s case;
movants will now also be able to satisfy their burden by “showing – that is, pointing out to the []
court – that there is an absence of evidence to support the nonmoving party’s case.” 2020
Amendment, 309 So. 3d at 193 (quoting Celotex, 477 U.S. at 323). To be clear, a movant can now
“satisfy its initial burden of production in either of two ways: ‘[I]f the nonmoving party must prove
X to prevail [at trial], the moving party at summary judgment can either produce evidence that X
is not so or point out that the nonmoving party lacks the evidence to prove X.’” Fla. R. Civ. P.
1.510(c)(1); 2021 Amendment, 2021 WL 1684095 at *2 (citation omitted). It would then fall on
the nonmovant to show there is evidence that creates a triable jury issue. See Avirgan v. Hull, 932
F.2d 1572, 1577 (11th Cir. 1991) (explaining when “the party seeking summary judgment meets
6
the initial burden of demonstrating the absence of a genuine issue of material fact, the burden then
shifts to the nonmoving party to come forward with sufficient evidence to rebut this showing with
affidavits or other relevant and admissible evidence”). Summary judgment can appropriately be
entered “against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322).
The second and equally significant change that comes with the new rule is a more stringent
standard as to what constitutes a “genuine issue of material fact.” 2020 Amendment, 309 So. 3d at
193. Florida has historically embraced a broad and expansive understanding of the phrase,
allowing “the existence of any competent evidence creating an issue of fact, however credible or
incredible, substantial or trivial” to preclude the issuance of summary judgment. Id. (quoting Bruce
J. Berman & Peter D. Webster, Berman’s Fla. Civil P. .510:5 (2020 ed.)); see also Hervey, 650
So. 2d at 646 (explaining summary judgment is precluded if the record reflects even just the
“possibility of any issue [of fact], or if the record raises even the slightest doubt that an issue might
exist). However, consistent with federal jurisprudence, the new standard requires that the evidence
establishing a genuine issue of material fact be more than “merely colorable” and do more than
raise a “metaphysical doubt as to the material facts.” 2020 Amendment, 309 So. 3d at 193 (citing
Anderson, 477 U.S. at 249 and Matsushita, 475 U.S. at 586). As of May 1, 2021, the nonmovant
must point to evidence not blatantly contradicted by the record that could result in a reasonable
jury returning a verdict for the nonmoving party. Id. (citing Anderson, 477 U.S. at 248 and Scott
v. Harris, 550 U.S. 372 (2007)). Inferences shall still be construed in favor of the nonmovant, but
only if they are reasonable, justifiable, and legitimate inferences that flow rationally from the
underlying facts. See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742–43 (11th Cir. 1996);
7
Anderson, 477 U.S. at 255.6 Simply showing “there is some metaphysical doubt as to the material
facts” will not suffice, Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586,
(1986), and the “mere existence of a scintilla of evidence in support of the [nonmovant’s] position”
is also insufficient, Anderson, 477 U.S. at 252. It is no longer plausible to “maintain that ‘the
existence of any competent evidence creating an issue of fact, however credible or incredible,
substantial or trivial, stops the inquiry and precludes summary judgment, so long as the ‘slightest
doubt’ is raised.’” 2021 Amendment, 2021 WL 1684095 at *3. Instead, to overcome a motion for
summary judgment, the nonmovant must establish that “reasonable jurors could find by a
preponderance of the evidence that the [nonmovant] is entitled to a verdict.” Anderson, 477 U.S.
at 252.
For the reasons set forth below, MS. BAKER is entitled to final summary judgment.
MEMORANDUM OF LAW
I. MS. BAKER DID NOT OWE PLAINTIFF ANY DUTY BECAUSE SHE DID NOT
OWN OR KEEP THE OFFENDING COW
As demonstrated above, there is no evidence establishing MS. BAKER owned or kept the
offending cow. A liability claim for damages resulting from an animal that is at large remains with
the legal owner of the animal and not the person who is merely the legal owner of the land on
which the animal is located. See Davidson v. Howard, 438 So. 2d 899, 902 (Fla. 4th DCA 1983);
Florida Power & Light Co. v. Morris, 944 So. 2d 407, 409–410 (Fla. 4th DCA 2006).
More, Fla. Stat. § 588.15, specifically limits liability to the owners of livestock: “Every
owner of livestock who intentionally, willfully, carelessly, or negligently suffers or permits such
6
A third change resulting from the adoption of the federal standard of review, which is not applicable to this Motion,
is that Florida courts shall recognize the functional similarly between a motion for directed verdict and a motion for
summary judgment; while they are procedurally distinct, the inquiry under each remains the same. See In re
Amendments to Florida Rule of Civil Procedure 1.510, 2020 WL 7778179 at *1.
8
livestock to run at large upon or stray upon the public roads of this state shall be liable in damages
for all injury and property damage sustained by any person by reason thereof.” (Emphasis added).7
As such, long-standing Florida law bars recovery for Plaintiff’s premises liability claim
against MS. BAKER as no duty of care was owed to Plaintiff where MS. BAKER did not own or
keep the offending cow. Accordingly, the Court should grant summary judgment in favor of MS.
BAKER because there exists no genuine issue of material fact sufficient for a jury to find that MS.
BAKER could be liable for Plaintiff’s injuries.
II. THERE IS NO EVIDENCE ESTABLISHING THAT MS. BAKER KNEW OR
SHOULD HAVE KNOWN OF THE PROPENSITIES OF THE OFFENDING COW
A premises liability claim is a negligence claim with the added elements of
possession/control and notice of an alleged dangerous condition. See Lisanti v. City of Port
Richey, 787 So. 2d 36, 37 (Fla. 2d DCA 2001) (observing, “[t]he elements for negligence are duty,
breach, harm, and proximate cause; the additional elements for a claim of premises liability include
the defendant's possession or control of the premises and notice of the dangerous condition”).
Assuming, arguendo, that the offending cow belonged to MS. BAKER (it did not), there
is still no evidence demonstrating that MS. BAKER had notice of the offending cow roaming the
roadway prior to the subject incident. Therefore, she had no opportunity to cure any alleged defect.
Common law establishes that if MS. BAKER (as an owner) was aware of the offending cow’s
propensity to escape, she could be held liable. However, where there is no such instance of a prior
escape, such as in this case, MS. BAKER cannot be said to have had notice, and therefore, cannot
be liable under a premises liability theory (at common law, it is the acts of a particular animal for
which an owner can be held accountable, i.e., this particular cow vs. cows in general)).
7
“Livestock” is defined in § 588.13(1) as including “include all animals of the equine, bovine, or swine class,
including goats, sheep, mules, horses, hogs, cattle, ostriches, and other grazing animals.”
9
In a similar set of circumstances in Fisel v. Wynns, 667 So. 2d 761 (Fla. 1996), an
automobile owner struck a cow that had strayed onto a county road and sued the cow’s owner. It
appeared that the cow escaped through an open gate. The Plaintiff sued based on a negligence
theory. The Defendants in that case argued that it was possible a trespasser opened the gate. The
trial court entered summary judgment in favor of the Defendants, the Wynns. The Fifth DCA
affirmed the trial court’s decision in 650 So. 2d 46 (Fla. 5th DCA 1995), and certified a question
regarding public policy to the Supreme Court. The Supreme Court evaluated the public policy and
approved the Fifth DCA's decision, answering the certified question in the negative (discussed in
more detail below).
In Fisel, the Fifth DCA indicated that in order to hold an owner responsible for allowing
their livestock to run at large, the owner must “willfully let the cattle roam, acquiesce in conditions
that permit the cattle to roam, or fail to take any action in which the owner knows or should know
as necessary to prevent cattle from roaming.” Id. at 48. And that, to hold an owner who provided
fences and gates (and who are not themselves intentionally, willfully, carelessly, or negligently
responsible for permitting the animal to run at large) liable for unforeseen acts would make such
owner the virtual insurers of safety. Id. at 50.
Here, there is no evidence that MS. BAKER knew that the offending cow had ever roamed
prior to the subject incident; permitted the offending cow to roam at large, or intentionally or
willfully allowed the cow out of its confines. For these reasons, Plaintiff cannot establish any claim
against MS. BAKER for premises liability and final summary judgment is warranted.
[Continued on next page]
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II. PLAINTIFF CANNOT ESTABLISH HOW THE COW ESCAPED WITHOUT
ENGAGING IN IMPERMISSIBLE SPECULATION & INFERENCE STACKING
a. There Is No Evidence Establishing How The Offending Cow Escaped
Simply stated, here, there is no evidence which indicates how (or if) the offending cow
escaped through any portion of MS. BAKER’S fence (again, assuming arguendo that the cow was
owned or kept by MS. BAKER).
Generally, a landowner can only be liable for negligence if she failed to take reasonable
steps to prevent injury caused by an escaped animal. However, if an animal escapes and causes
injury despite the landowner taking all reasonable precautions, there may be no civil liability. The
mere fact that livestock are running at large on a public roadway does not automatically mean that
the owner intentionally or negligently permitted the animals to run at large. The plaintiff carries
the burden of proving negligence. For example, there is no negligence where a horse escapes from
a closed gate that could only be opened by human hands, see Lee v. Hinson, 160 So. 2d 166, 167
(Fla. 2d DCA 1964). Florida Courts have also determined that an owner whose cow broke through
three separate enclosures before reaching a public road was not careless or negligent. See Welch
v. Baker, 184 So. 2d 188, 192 (Fla. 1st DCA 1966) (“The undisputed evidence showed that the
defendant had placed his cattle . . . within three fenced enclosures, so that the cattle would have to
break down all three fences . . . before they could reach the public road.”). An owner could escape
liability if there is evidence, such as unknown tire tracks or a different knot used to tie a gate, i.e.,
evidence that another person caused the animal’s release. See Gordon v. Sutherland, 131 So. 2d
520, 521–22 (Fla. 3d DCA 1961).
Looking again to Fisel v. Wynns, 667 So. 2d 761 (Fla. 1996), wherein the plaintiff's truck
struck a black cow on a dark road at midnight. In Fisel, Deposition testimony revealed that the
11
Defendants lived alone on forty acres on which they kept forty (40) head of cattle in a fenced
enclosure with several gates.
The western gate, which was 1,400 feet from the county road and secured by a sliding latch
that could only be operated by human hands, was found open following the accident. The Wynns
had used the gate the day before and closed it. They had no visitors during this period and did not
know how the gate was opened. There was no showing that the Defendant's cattle had escaped on
prior occasions, or that there had been trespassers in the past. The Court found that no construction
of the facts yielded a reasonable inference of negligence. The Fifth DCA certified to the Court the
following question: “Have changing conditions in Florida altered public policy as announced in
Selby v. Bullock, 287 So. 2d 18 (Fla. 1973), so that a livestock owner may now be liable for injuries
resulting when the owner's livestock wanders through an open gate and the reason the gate is open
is unknown?” The Supreme Court answered that question in the negative and affirmed a summary
judgment in favor of the defendants.
Similar to the instant case, there is no construction of facts which yield a reasonable
inference of negligence upon MS. BAKER.
b. Only Impermissible Speculation And Inference Stacking Could Support
Plaintiff’s Claim That The Offending Cow Escaped Via MS. BAKER’S Fence
Even if Plaintiff can establish some elements of negligence, the mere occurrence of an
incident does not give rise to a finding of negligence. Cassell v. Price, 396 So. 2d 258, 264 (Fla.
1st DCA 1981); Belden v. Lynch, 126 So. 2d 581 (Fla. 2nd DCA 1961). In Florida, a plaintiff has
the burden to present evidence which shows that more likely than not the conduct of a defendant
was a substantial factor in causing an accident. Broward Exec. Builders, Inc. v. Zota, 192 So. 3d
534, 536 (Fla. 4th DCA 2016). It follows that circumstantial evidence can establish an inference
or fact; however, it will not support a jury inference if the evidence is purely speculative and,
12
therefore, inadequate to produce an inference that outweighs all contrary evidence. Food Fair
Stores, Inc. v. Trusell, 131 So.2d 730 (Fla. 1961). The rule against impermissible stacking of
inferences is designed to protect litigants from verdicts based upon conjecture and speculation.
Stanley v. Marceaux, 991 So. 2d 938, 940 (Fla. 4th DCA 2008). As such, summary judgment is
proper when there is no direct evidence, and circumstantial evidence does not exclude other
reasonable inferences. Zolta, 192 So. 3d at 538.
Further, courts apply this prohibition against the stacking of inferences when determining
the propriety of summary judgment dispositions. Petruska v. Smartparks-Silver Springs, Inc., 914
So. 2d 502, 505 (Fla. 2005) (citing Koelling v. CSX Transp., Inc., 673 So. 2d 67, 67-68 (Fla. 5th
DCA 1996) (“We affirm the judgment for FPL because there is no evidence, absent the stacking
of conjectural inferences, that it was guilty of causative negligence.”) (internal citations omitted),
review denied, 680 So. 2d 423 (Fla.1996)).
Here, a jury cannot return a verdict for Plaintiff against MS. BAKER without constructing
the following inferences:
(i) MS. BAKER owned or kept the offending cow;
(ii) MS. BAKER knew of the offending cow’s propensity to roam;
(iii) The offending cow escaped via a defect in the fence;
(iv) MS. BAKER knew about the defect in the fence or the defect existed for a sufficient
period of time that MS. BAKER should have been aware of it; and
(vi) The offending cow was not intentionally let out by trespassers or passersby
These inferences are fatal to Plaintiff’s case as they cannot be made to the exclusion of all
other reasonable inferences. Voelker, 72 So. 2d at 407 (holding that an inference can only be made
when no other reasonable theories exist). Without more, Plaintiff’s theory equates to nothing more
than speculation and conjecture that is unsupported by material facts. For Plaintiff’s claim to
succeed, a jury will have to infer facts despite other reasonable inferences to the exclusion of all
13
other reasonable theories. Again, in Florida, it is well established that negligence “may not be
inferred from the mere happening of an accident alone.” Winn Dixie v. White, 675 So. 2d 702 (Fla.
4th DCA 1996) (citing Cooper Hotel Servs., Inc. v. MacFarland, 662 So. 2d 710, 712 (Fla. 2d
DCA 1995); Belden v. Lynch, 126 So. 2d 578, 581 (Fla. 2d DCA 1961)). Thus, final summary
judgment in favor of MS. BAKER is appropriate to prevent unwarranted speculation and an
impermissible stacking of inferences to the exclusion of reasonable alternative theories.
III. THE PREMISES LIABILTY CLAIM FAILS BECAUSE PLAINTIFF CANNOT
ESTABLISH MS. BAKER OWED A DUTY OF CARE TO PLAINTIFF
Again assuming, arguendo, that Plaintiff can show that MS. BAKER owned or kept the
offending cow, Plaintiff’s claim still fails because Plaintiff cannot establish that MS. BAKER
owed him any duty.
It is axiomatic in Florida that the mere occurrence of an accident does not give rise to an
inference of negligence. See St. Joseph's Hosp. v. Cowart, 891 So. 2d 1039, 1041 (Fla. 2d DCA
1995). See also Meyer By & Through Meyer v. Torrey, 452 So. 2d 672, 673-74 (Fla. 2d DCA
1984); Winn Dixie v. White, 675 So. 2d 702, 703 (Fla. 4th DCA 1996); Crawford v. Miller, 542
So. 2d 1050, 1051 (Fla. 3d DCA 1989); Emmons v. Baptist Hosp., 478 So. 2d 440, 442 (Fla. 1st
DCA 1985). To sustain a premises liability claim, the burden of proof is on the plaintiff to establish
that: (1) the defendant owed a duty of reasonable care to maintain the premises in a reasonably
safe condition; (2) the defendant breached that duty and (3) the defendant's breach was the
proximate cause of the plaintiff's injuries and resulting damages. Clay Elec. Co-op., Inc. v.
Johnson, 873 So.2d 1182, 1185 (Fla. 2003). Thus, the threshold inquiry in any premises liability
claim is the legal question of whether the defendant owed a duty of care to the plaintiff. If no duty
was owed and as a result breached, then no negligence can be found and summary judgment should
be granted in favor of the defendant. See, e.g., Cassel v. Price, 396 So. 2d 258 (Fla. 1st DCA 1981).
14
Here, there is no evidence to establish that MS. BAKER owed Plaintiff any duty to protect
him against a cow which she did not own or keep, or to maintain and inspect her fence from which
the offending animal did not escape. Similarly, there is no evidence that MS. BAKER breached
any purported duty.
A legal duty ordinarily arises from four general sources: “(1) legislative enactments or
administration regulations; (2) judicial interpretations of such enactments or regulations; (3) other
judicial precedent; and (4) a duty arising from the general facts of the case.” Clay Elec. Coop., Inc.
v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003) (quoting McCain v. Fla. Power Corp., 593 So. 2d
500, 503 n.2 (Fla. 1992). “The duty element of negligence focuses on whether the defendant’s
conduct foreseeably created a broader ‘zone of risk’ that poses a general threat of harm to others.”
McCain, 593 So. 2d at 502. It must be an “unreasonable risk” of harm caused by defendant’s
conduct, however. Stevens v. Jefferson, 436 So. 2d 33, 35 (Fla. 1983). And the risk must be created
by the defendant’s conduct which the defendant thus has the ability to control. See Surloff v.
Regions Bank, 179 So. 3d 472, 475 (Fla. 4th DCA 2015)(emphasis added); Aguila v. Hilton, Inc.,
878 So. 2d 392, 396 (Fla. 1st DCA 2004). Because Plaintiff has brought this claim pursuant to a
common law premises liability theory, and not under Ch. 588, Fla. Stat., this case falls squarely
within the fourth category—the duty, if it exists, would arise from the general facts of the case.
The test for determining the existence of a legal duty flowing from the general facts of the
case is whether the defendant’s conduct creates or controls a foreseeable zone of risk. Demelus v.
King Motor Co. of Fort Lauderdale, 24 So. 3d 759, 761 (Fla. 5th DCA 2009); Aguila v. Hilton,
878 So. 2d 392, 395 (Fla. 4th DCA 2004).
The Florida Supreme Court “recognizes that a duty will arise whenever a human endeavor
creates a generalized and foreseeable risk of harm[.]” See Whitt v. Silverman, 788 So. 2d 210, 217
15
(Fla. 2001); citing McCain v. Florida Power Corp., 593 So. 2d 500, 502-503 (Fla. 1992). Simply
put, a duty arises “when a defendant’s conduct creates a foreseeable zone of risk.” Id. Whether the
defendant’s conduct created such a risk is a “matter of law and is not a factual question for the jury
to decide.” Id. (emphasis added). Here, there is no evidence that any act by MS. BAKER created
any such foreseeable zone of risk.
In making determinations about how far liability should extend, courts have acknowledged
that the mere ability to be injured by contact with an instrument within the control of the Defendant
does not automatically extend a duty to everyone who may be injured; rather, a threshold
determination of law must be made that someone in the Plaintiff’s particular circumstances was
within the foreseeable “zone of risk” created by the Defendant. See Rehab. Ctr. at Hollywood Hills,
LLC v. Florida Power & Light Co., 299 So. 3d 16 (Fla. 4th DCA 2020) (quoting Smith v. Fla.
Power &Light Co., 857 So. 2d 224, 233 (Fla. 2d DCA 2003)). This places foreseeability at the
forefront of the duty analysis. McCain v. Fla. Power Corp., 593 So. 2d 500, 503 n.2 (Fla.1992).
“A foreseeable consequence is one which a prudent man would anticipate likely to result from an
act.” Webb v. Glades Elec. Co-op., Inc., 521 So. 2d 258 (Fla. 2d DCA 1988).
As demonstrated, there is no evidence to establish the existence of a legal duty owed by
MS. BAKER flowing from the facts of this case, where it is evident that MS. BAKER did not own
or keep the offending cow; there is no evidence of prior roaming by the offending cow, and there
is no evidence as to how the offending cow would have purportedly escaped from MS. BAKER’S
property. Therefore, Plaintiff cannot maintain a cause of action for negligence against MS.
BAKER solely because Plaintiff failed to recognize a cow in the roadway adjacent to MS.
BAKER’s property.
16
The Plaintiff must present admissible evidence that (1) a dangerous condition existed; (2)
that the dangerous condition was caused by MS. BAKER’s negligence; and (3) that the dangerous
condition caused his injuries. Summary judgment is appropriate in this case because Plaintiff is
unable to provide any admissible evidence to establish the elements of his cause of action against
MS. BAKER. As a result, there is no genuine issue of material act in dispute, and MS. BAKER’s
Motion for Final Summary Judgment should be granted.
CONCLUSION
As demonstrated above, there is no evidence establishing that the offending cow belonged
to MS. BAKER. Further, there is no evidence demonstrating that MS. BAKER owned/kept the
cow in question; that she failed to maintain any of the fencing along her property; or that she had
any knowledge of prior instances of roaming cattle. Additionally, Plaintiff cannot provide any
explanation/support which demonstrates how the offending cow would have escaped through any
section of fencing, beyond impermissible speculation and inference stacking. Therefore, Plaintiff
cannot establish any duty owed to him by MS. BAKER, or breach of said duty, and final summary
judgment is warranted.
WHEREFORE, Defendant KATHARINE BAKER respectfully requests that this Court
enter an Order granting her Motion for Final Summary Judgment and for such other and further
relief as the Court deems just and proper.
[Certificate on next page]
17
I HEREBY CERTIFY that on October 02, 2022, the foregoing was electronically filed
through the Florida Courts E-Filing Portal which will send a notice of electronic filing to Ashley
M. Nelson, Esquire, Morgan & Morgan, P.A., 20 N. Orange Avenue Suite 1600, Orlando, FL
32801.
/s/ S. Renee Stephens Lundy
S. RENEE STEPHENS LUNDY, ESQ.
Florida Bar No. 0501867
BRANDON T. ACEVEDO, ESQ.
Florida bar No. 1024857
Dean, Ringers, Morgan & Lawton, P.A.
Post Office Box 2928
Orlando, Florida 32802-2928
Tel: 407-422-4310 Fax: 407-648-0233
RLundy@drml-law.com
BAcevedo@drml-law.com
BrittanK@drml-law.com
Denise.Covert@drml-law.com
Attorneys for Katharine Baker
18
Filing # 147885496 E-Filed 04/18/2022 04:41:32 PM
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND FOR
OSCEOLA COUNTY, FLORIDA
JOSEPH GIFFIN, CASE NO: 2021-CA-001411 ON
vs.
Plaintiff,
EXHIBIT
KATHARINE BAKER,
Defendant.
"A"
/
PLAINTIFF'S NOTICE OF SERVICE OF ANSWERS TO INTERROGATORIES
COME(S) NOW the Plaintiff, JOSEPH GIFFIN, by and through the undersigned attorneys,
and gives notice to the Court that the original Interrogatories propounded upon said Plaintiff, on or
about March 11, 2022, and answers thereto have been returned to counsel for Defendants,
KATHARINE BAKER, on this 18th day of April, 2022.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on April 18, 2022, I electronically filed the foregoing with the
Clerk of the Courts by using the Florida Courts eFiling Portal which will send notice of
electronic filing to: S. Renee Stephens Lundy, Esq., Dean, Ringers, Morgan & Lawton, P.A.,
P.O. Box 2928, Orlando, FL 32802, RLundy@drml-law.com; BrittanK@drml-law.com;
Denise.Covert@drml-law.com; Kari@drml-law.com.
/s/ Ashley M. Nelson
Ashley M. Nelson, Esquire
FBN: 1018349
Morgan & Morgan, P.A.
20 N. Orange Avenue
Suite 1600
Orlando, FL 32801
Telephone: (407) 867-4823
Facsimile: (407) 452-1632
Primary email: ANelson@forthepeople.com
Secondary email: NSanchez@forthepeople.com
Attorneys for Plaintiff
PLAINTIFF’S ANSWERS TO DEFENDANT’S INTERROGATORIES
1. What is the name and address of the person answering these interrogatories, and, if
applicable, the person's official position or relationship with the party to whom the
interrogatories are directed?
ANSWER:
Joseph Giffin
2. List the names, business addresses, dates of employment and rates of pay regarding all
employers, including self-employment, for whom you have worked in the past ten (10)
years.
ANSWER:
Dunkin Donuts
St. Cloud, FL
October 2021 – November 2021
$12 Hourly
Unemployed from April 2020 to October 2021
Sale Representative for Amazon
Remote
October 2020 – April 2021
$15 Hourly
Armstrong Garage Door
Lake Nona, FL
August 2020 – October 2020
$600 Weekly
Unemployed from June 2020 to August 2020
Paper Delivery Orlando Sentinel
Kissimmee, FL
January 2020 – June 2020
$400 Weekly
Dominos
St. Cloud, FL
January 2020
$10 Hourly
Labor Ready (People Ready)
Kissimmee, FL
2015 – 2020
$10 - $16 Hourly
RentSource
Kansas City, MI
June 2015 – August 2016
$400 Base & Commission
Vendor
Kansas City, MI
April 2015 – June 2015
$11 Hourly
GreenStar Roofing
Lakeland, FL
February 2015 – April 2015
$300 Weekly & Commission
Doorstep Delivery
Orlando, FL
2019 – 2014
$15 plus tip per delivery
3. List all former names and when you were known by those names. State all addresses
where you have lived for the past ten (10) years, the dates you lived at each address, your
Social Security number, your date of birth, and if you are or have ever been married, the
name of your spouse or spouses.
ANSWER:
Joseph Giffin
I do not recall the previous address before June 2015.
4. Do you wear glasses, contact lenses, or hearing aids? If so, who prescribed them; when
were they prescribed; when were your eyes or ears last examined; and what is the name
and address of the examiner?
ANSWER: To the best of my recollection, I’ve been prescribed contact lenses, however,
I do not recall when was the last time I had my eyes and ears examine and the name and
address of the examiner.
5. Have you ever been convicted of a crime, other than any juvenile adjudication, which
under the law under which you were convicted was punishable by death or imprisonment
in excess of one year, or that involved dishonesty or a false statement regardless the
punishment? If so, state as to each conviction, the specific crime, the date and the place
of conviction.
ANSWER: To the best of my recollection, I was charged of a misdemeanor. However, I
do not recall of the details of my conviction.
6. Were you suffering from physical infirmity, disability, or sickness at the time of the
incident described in the complaint? If so, what was the nature of the infirmity, disability
or sickness?
ANSWER: To the best of my knowledge, I am not suffering from any physical infirmity,
disability or sickness at the time of the subject accident.
7. Did you consume any alcoholic beverages or take any drugs or medication within twelve
(12) hours before the time of the incident described in the complaint? If so, state the type
and amount of alcoholic beverages, drugs or medication which were consumed and when
and where you consumed them.
ANSWER: I did not consume any alcoholic beverages nor any drugs or medications
within twelve (12) hours before the time of the incident
8. Describe in detail how the incident described in the complaint happened, including all
actions taken by you to prevent the incident.
ANSWER: On February 23, 2020, at approximately 4:20 a.m., I was driving and
delivering newspapers. When Katherine Baker’s, bull rammed into my vehicle.
9. Describe in detail each act or omission on the part of any party to this lawsuit that you
contend constituted negligence that was a contributing legal cause of the incident in
question.
ANSWER: Katherine Baker was negligent for failing to properly secure her bull.
10. Were you charged with any violation of law (including any regulations or ordinances)
arising out of the incident described in the complaint? If so, what was the nature of the
charge; what plea, or answer, if any, did you enter to the charge; what court or agency
heard the charge; was any written report prepared by anyone regarding this charge, and if
so, what is the name and address of the person or entity that prepared the report; do you
have a copy of the report; and was the testimony at any trial, hearing, or other proceeding
on the charge recorded in any manner, and if so, what was the name and address of the
person who recorded the testimony?
ANSWER: I was not charged with violating any law as a result of the subject accident.
11. Describe each injury for which you are claiming damages in this case, specifying the part
of your body that was injured, the nature of the injury, and as to any injuries you contend
are permanent, the effects on you that you claim are permanent.
ANSWER: As a result of the subject accident, I suffered injuries to my neck.
12. List each item of expense or damage, other than loss of income or earning capacity, that
you claim to have incurred as a result of the incident described in the complaint, giving
for each item the amount incurred, the date incurred, the name and business address to
whom each was paid or is owed, and the goods or services for which each was incurred.
ANSWER: List of expenses:
Providers Total Charges Pymts/By Whom Balance
Akumin Osceola $1.950.00 - $1,950.00
819 E. Oak Street
Kissimmee, FL 34744
05/12/2021
Emergency Phys. of Central FL, LLC $6,091.00 Other: $1,419.00 $4,672.00
1414 Kuhl Ave
Orlando, FL 32806
Integrity Medical Group LLC $11,108.04 - $11,108.04
812 10th Street
St. Cloud, FL 34769
06/03/2021 – 03/21/2022
Medical Center Radiology Group $911.00 Other $911.00 $0
20 W. Kaley Street
Orlando, FL 32806
4/26/2020 – 11/26/2020
Orlando Health – Kissimmee $0 - $0
Orlando Health Dr. P Phillips Hospital $5,546.00 - $5,546.00
3090 Caruso Ct Ste 20
Orlando, FL 32806
4/23/2020 - 11/27/2020
Osceola Regional Medical Center $0 - $0
Saint Cloud Fire Rescue $0 - $0
Sheridan Radiology Services of $0 - $0
Central Florida
13. Do you contend that you have lost any income, benefits, or earning capacity in the past or
future as a result of the incident described in the complaint? If so, state the nature of the
income, benefits, or earning capacity, and the amount and the method that you used in
computing the amount.
ANSWER: As a result of the subject accident, the amount of my lost wage claim is
undetermined at this time. My future lost wages are undetermined at this time.
14. Has anything been paid or is anything payable from any third party for the damages listed
in your answers to these interrogatories? If so, state the amounts paid or payable, the
name and business address of the person or entity who paid or owes said amounts, and
which of those third parties have or claim a right of subrogation.
ANSWER: Please refer to Plaintiff’s answer to Interrogatory number #12.
15. List the name, and business addresses of each physician who has treated or examined
you, and each medical facility where you have received any treatment or examination for
the injuries for which you seek damages in this case; and state as to each the date of
treatment or examination and the injury or condition for which you were examined or
treated.
ANSWER: Please refer to Plaintiff’s answer to Interrogatory number #12.
16. List the names and business addresses of all other physicians, medical facilities or other
health care providers by whom or at which you have been examined or treated in the past
ten (10) years; and state as to each the dates of examination or treatment and the
condition or injury for which you were examined or treated.
ANSWER: To the best of my recollection, other than the medical providers listed in
Interrogatory no. 12, below is a list of medical providers that I received medical treatment
from in the last ten (10) years.
17. List the names and addresses of all persons who are believed or known by you, your
agents or attorneys to have any knowledge concerning any of the issues in this lawsuit
and specify the subject matter about which the witness has knowledge.
ANSWER: To the best of my knowledge, the following individuals may have
information regarding the issues in the subject lawsuit: Officer Jose Ramirez (Unit # 257)
and Officer B. Black (Unit #: 263); parties to this lawsuit; and my treating healthcare
providers may have knowledge of the issues in this lawsuit.
18. Have you heard or do you know about any statement or remark made by or on behalf of
any party to this lawsuit, other than yourself, concerning any issue in this lawsuit? If so,
state the name and address of each person who made the statement or statements, the
name and address of each person who heard it, and the date, time, place and substance of
each statement.
ANSWER: I am not aware of any statement or remark made by or on behalf of any party
to this lawsuit, other than myself, concerning any issue in this lawsuit.
19. State the name and address of every per
Preview
Filing # 158419543 E-Filed 10/02/2022 12:32:55 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA JOSEPH GIFFIN, CASE NO.: 2021-CA-001411-ON Plaintiff, vs. KATHARINE BAKER, Defendant. / MOTION FOR FINAL SUMMARY JUDGMENT COMES NOW, Defendant KATHARINE BAKER, by and through undersigned counsel and pursuant to Fla. R. Civ. P. 1.510, moves this Honorable Court for entry of final judgment in her favor as a matter of law. As grounds for this Motion, MS. BAKER states that the pleadings, depositions, discovery, and evidence in the record demonstrate there is no genuine issue of material fact and MS. BAKER is entitled to final summary judgment as a matter of law. MS. BAKER hereby files this Motion for Final Summary Judgment and as grounds therefore, states: INTRODUCTION In the early morning hours of February 23, 2020, Plaintiff, JOSEPH GIFFIN was driving near King’s Highway and Neptune Road, in Kissimmee, Florida, when he struck a cow (the “offending cow”) with his vehicle. (Am. Compl. ¶¶ 7, 9). Without any supporting evidence, Plaintiff alleges the offending cow was owned by Defendant, KATHARINE BAKER and her now- deceased husband. (Am. Compl. ¶ 8). Pursuant to the Amended Complaint, Plaintiff’s theory of liability stems from a presumption that because the subject collision occurred adjacent to MS. BAKER’S property, she must be responsible the offending cow. However, this reasoning is fatally flawed and unsupported by the evidence. Plaintiff has now filed suit, bringing a single claim against MS. BAKER under a premises liability theory. As demonstrated below, there is no evidence establishing that the offending cow belonged to MS. BAKER. There is also no evidence demonstrating that MS. BAKER owned/kept the cow in question; that she failed to maintain any of the fencing along her property; or that she had any knowledge of prior instances of roaming cattle. Additionally, Plaintiff cannot provide any explanation/support which demonstrates how the offending cow would have escaped through any section of fencing along MS. BAKER’S property, beyond impermissible speculation and inference stacking. Therefore, Plaintiff cannot establish any duty owed to him by MS. BAKER, or breach of said duty, and final summary judgment is warranted. MATERIAL FACTS 1. In the early morning hours of February 23, 2020, Plaintiff was delivering newspapers along King’s Highway and Neptune Road, in Kissimmee, Osceola County, Florida. (Am. Compl. ¶ 7; Pl.’s Ans. to Roggs attached as Exhibit “A”).1 Thereafter, Plaintiff encountered a cow, ultimately striking it with his vehicle. (Am. Compl. ¶ 8-9; Exhibit “A”). 2 2. Without support, Plaintiff alleges the offending cow was owned by Defendant, KATHARINE BAKER and her now-deceased husband. (Am. Compl. ¶ 8). 3. In an attempt to establish a duty owed, Plaintiff claims to have been a guest at “the retail establishment, lawfully upon the premises” of MS. BAKER.” (Am. Compl. ¶ 10). However, this accounting of events is inconsistent with Plaintiff’s Answers to Interrogatories, No. 08, wherein Plaintiff indicates he was delivering newspapers at the time of the incident, and with other portions of the Amended Complaint itself, wherein Plaintiff alleges he was “accessing the public 1 Plaintiff’s claim may also be barred pursuant to Ch. 440, Fla. Stat. (addressed via separate motion). 2 The Amended Complaint is inconsistent with Plaintiff’s Answers to Interrogatories, No. 08, wherein Plaintiff states that “[Katharine] Baker’s bull rammed my vehicle.” (Exhibit “A”). 2 road adjacent to the Defendant’s premises” at the time of the collision. (Am. Compl. ¶ 12 (emphasis added); see also Exhibit “A”). 4. As for causing the incident, Plaintiff alleges MS. BAKER (i) failed to maintain her fence; (ii) failed to inspect her fence; (iii) failed to warn “of the danger of the fencing,” and (iv) failed to correct the fence. (Am. Compl. ¶ 11). 5. Proving fatal to his claim, the cow Plaintiff struck did not belong to MS. BAKER. As pictured below, the offending cow had no identification marks and/or carrier branding.3 Crucially, every head of cattle MS. BAKER owned as of February 23, 2020, was carrier branded with her farm’s identifying marks. 6. Additionally, the cow (as pictured) has no earmarks. As of February 23, 2020, MS. BAKER’s cattle had specific ear markings used for identification. 3 This photograph is the sole evidence depicting the offending cow. During initial discovery, Plaintiff claimed to not have any photographs of the cow. Though, this was untrue. During his deposition, for the first time, Plaintiff acknowledged that he did, in fact, have a photograph. (See Plaintiff’s Response to Defendant’s Request for Production, No. 13-14, attached as Exhibit “B”). 3 7. As of February 23, 2020, none of the cattle owned by MS. BAKER had the horn stature of the offending cow.4 8. More, at no time after February 23, 2020, was MS. BAKER missing any head of cattle. In fact, all of her cattle were known to her and had been accounted for. Additionally, MS. BAKER and her staff/family had no involvement in moving any deceased cows from the roadway and she did not become aware of any alleged incidents until this suit commenced. 9. Again, Plaintiff’s sole piece of evidence for establishing ownership of the offending cow is this photograph. Nobody knows what happened to the cow after the incident; who removed it from the side of the road (or how), or where the cow ultimately ended up. 10. With the entirety of the evidence as it regards the offending cow now known, there exists no evidence which could establish that the cow, as pictured, belonged to MS. BAKER. 11. Even assuming, arguendo, that the offending cow belonged to MS. BAKER (it did not), Plaintiff cannot establish how the cow got out of its enclosure beyond impermissible speculation and inference stacking, as there is no evidence or witnesses with knowledge. 12. Therefore, Plaintiff cannot meet his burden of establishing any duty owed to him by MS. BAKER and final summary judgment is warranted. SUMMARY JUDGMENT STANDARD Summary judgment is governed by Rule 1.510(c) of the Florida Rules of Civil Procedure. As of May 1, 2021, Florida has adopted the federal summary judgment standard of review articulated by the United States Supreme Court in Celotex Corp. v. Catreti, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), and Rule 1.510 has been amended to largely adopt the 4 The offending cow would have been easily identifiable as 90% of the cattle owned by MS. BAKER are of a whiteish- gray color and not the color as pictured. 4 text of Federal Rule of Civil Procedure 56 to implement that change. 5 See In re Amendments to Florida Rule of Civil Procedure 1.510, 309 So. 3d 192 (Fla. 2020) (hereinafter, “2020 Amendment”); In re Amendments to Florida Rule of Civil Procedure 1.510, 2021 WL 1684095, *1 (Fla. 2021) (hereinafter, “2021 Amendment”). Florida courts will now align with federal court jurisprudence and interpretation of the summary judgment standard, which is “more rational, more fair, and more consistent with the structure and purpose of [Florida’s] rules of civil procedure.” 2020 Amendment, 309 So. 3d at 194. Under the text of the amended Rule 1.510, the Court should grant summary judgment to a movant who shows, based on record evidence including depositions, documents, answers to interrogatories, admissions, affidavits, and declaration, “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(a), (c) (eff. May 1, 2021); see also Fed. R. Civ. P. 56(c). The changes to Florida’s standard of review were made with the goal of improving the “fairness and efficiency of Florida’s civil justice system to relieve parties from the expense and burdens of meritless litigation, [] to save the work of juries for cases where there are real factual disputes that need resolution,” and to carry out the spirit of the rules of civil procedure “to secure the just, speedy, and inexpensive determination of every action.” 2020 Amendment, 309 So. 3d at 194; 2021 Amendment, 2021 WL 1684095 at *2 (quoting Celotex, 477 U.S. at 327). In furtherance thereof, courts must abandon prior features of Florida jurisprudence that have “unduly hindered the use of summary judgment” in Florida. Id. (citing 2020 Amendment, 309 So. 3d at 192–93). Summary judgment affords the Court an opportunity to “isolate and dispose of factually 5 The new standard applies to any motion decided on or after May 1, 2021, regardless of when the case was initiated or the motion was filed. See 2021 Amendment, 2021 WL 1684095 at *4 (“New rule 1.510 takes effect May 1, 2021. This means that the new rule must govern the adjudication of any summary judgment motion decided on or after that date, including in pending cases.”). If a summary judgment motion has previously been denied, the Court should give the parties a reasonable opportunity to file renewed motions under the new standard. Id. 5 unsupported claims or defendants,” and the standard of review “should be interpreted in a way that allows [the Court] to accomplish [that] purpose.” Id. (quoting Celotex, 477 U.S. at 323–24). In applying this new standard in Florida, courts can look to well-established precedent and the body of case law interpreting and applying Federal Rule of Civil Procedure 56. With the adoption of the federal standard comes two significant differences to Florida courts’ review on summary judgment. The first regards the burden of proof. Florida has long required that, to prevail on summary judgment, a movant must affirmatively demonstrate a lack of genuine issue of material fact, essentially requiring the movant “to disprove the nonmovant’s theory of the case in order to eliminate any issue of fact.” 2020 Amendment, 309 So. 3d at 193 (citation omitted). That is, to prevail to summary judgment, a movant historically has had to show that the nonmovant could not prove its case. See Hervey v. Alfonso, 650 So. 2d 644, 645–46 (Fla. 2d DCA 1995) (“The party moving for summary judgment has the burden of establishing irrefutably that the nonmoving party cannot prevail.”). In aligning with the federal courts, a state court movant can now obtain summary judgment without disproving the nonmovant’s case; movants will now also be able to satisfy their burden by “showing – that is, pointing out to the [] court – that there is an absence of evidence to support the nonmoving party’s case.” 2020 Amendment, 309 So. 3d at 193 (quoting Celotex, 477 U.S. at 323). To be clear, a movant can now “satisfy its initial burden of production in either of two ways: ‘[I]f the nonmoving party must prove X to prevail [at trial], the moving party at summary judgment can either produce evidence that X is not so or point out that the nonmoving party lacks the evidence to prove X.’” Fla. R. Civ. P. 1.510(c)(1); 2021 Amendment, 2021 WL 1684095 at *2 (citation omitted). It would then fall on the nonmovant to show there is evidence that creates a triable jury issue. See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991) (explaining when “the party seeking summary judgment meets 6 the initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party to come forward with sufficient evidence to rebut this showing with affidavits or other relevant and admissible evidence”). Summary judgment can appropriately be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322). The second and equally significant change that comes with the new rule is a more stringent standard as to what constitutes a “genuine issue of material fact.” 2020 Amendment, 309 So. 3d at 193. Florida has historically embraced a broad and expansive understanding of the phrase, allowing “the existence of any competent evidence creating an issue of fact, however credible or incredible, substantial or trivial” to preclude the issuance of summary judgment. Id. (quoting Bruce J. Berman & Peter D. Webster, Berman’s Fla. Civil P. .510:5 (2020 ed.)); see also Hervey, 650 So. 2d at 646 (explaining summary judgment is precluded if the record reflects even just the “possibility of any issue [of fact], or if the record raises even the slightest doubt that an issue might exist). However, consistent with federal jurisprudence, the new standard requires that the evidence establishing a genuine issue of material fact be more than “merely colorable” and do more than raise a “metaphysical doubt as to the material facts.” 2020 Amendment, 309 So. 3d at 193 (citing Anderson, 477 U.S. at 249 and Matsushita, 475 U.S. at 586). As of May 1, 2021, the nonmovant must point to evidence not blatantly contradicted by the record that could result in a reasonable jury returning a verdict for the nonmoving party. Id. (citing Anderson, 477 U.S. at 248 and Scott v. Harris, 550 U.S. 372 (2007)). Inferences shall still be construed in favor of the nonmovant, but only if they are reasonable, justifiable, and legitimate inferences that flow rationally from the underlying facts. See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742–43 (11th Cir. 1996); 7 Anderson, 477 U.S. at 255.6 Simply showing “there is some metaphysical doubt as to the material facts” will not suffice, Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, (1986), and the “mere existence of a scintilla of evidence in support of the [nonmovant’s] position” is also insufficient, Anderson, 477 U.S. at 252. It is no longer plausible to “maintain that ‘the existence of any competent evidence creating an issue of fact, however credible or incredible, substantial or trivial, stops the inquiry and precludes summary judgment, so long as the ‘slightest doubt’ is raised.’” 2021 Amendment, 2021 WL 1684095 at *3. Instead, to overcome a motion for summary judgment, the nonmovant must establish that “reasonable jurors could find by a preponderance of the evidence that the [nonmovant] is entitled to a verdict.” Anderson, 477 U.S. at 252. For the reasons set forth below, MS. BAKER is entitled to final summary judgment. MEMORANDUM OF LAW I. MS. BAKER DID NOT OWE PLAINTIFF ANY DUTY BECAUSE SHE DID NOT OWN OR KEEP THE OFFENDING COW As demonstrated above, there is no evidence establishing MS. BAKER owned or kept the offending cow. A liability claim for damages resulting from an animal that is at large remains with the legal owner of the animal and not the person who is merely the legal owner of the land on which the animal is located. See Davidson v. Howard, 438 So. 2d 899, 902 (Fla. 4th DCA 1983); Florida Power & Light Co. v. Morris, 944 So. 2d 407, 409–410 (Fla. 4th DCA 2006). More, Fla. Stat. § 588.15, specifically limits liability to the owners of livestock: “Every owner of livestock who intentionally, willfully, carelessly, or negligently suffers or permits such 6 A third change resulting from the adoption of the federal standard of review, which is not applicable to this Motion, is that Florida courts shall recognize the functional similarly between a motion for directed verdict and a motion for summary judgment; while they are procedurally distinct, the inquiry under each remains the same. See In re Amendments to Florida Rule of Civil Procedure 1.510, 2020 WL 7778179 at *1. 8 livestock to run at large upon or stray upon the public roads of this state shall be liable in damages for all injury and property damage sustained by any person by reason thereof.” (Emphasis added).7 As such, long-standing Florida law bars recovery for Plaintiff’s premises liability claim against MS. BAKER as no duty of care was owed to Plaintiff where MS. BAKER did not own or keep the offending cow. Accordingly, the Court should grant summary judgment in favor of MS. BAKER because there exists no genuine issue of material fact sufficient for a jury to find that MS. BAKER could be liable for Plaintiff’s injuries. II. THERE IS NO EVIDENCE ESTABLISHING THAT MS. BAKER KNEW OR SHOULD HAVE KNOWN OF THE PROPENSITIES OF THE OFFENDING COW A premises liability claim is a negligence claim with the added elements of possession/control and notice of an alleged dangerous condition. See Lisanti v. City of Port Richey, 787 So. 2d 36, 37 (Fla. 2d DCA 2001) (observing, “[t]he elements for negligence are duty, breach, harm, and proximate cause; the additional elements for a claim of premises liability include the defendant's possession or control of the premises and notice of the dangerous condition”). Assuming, arguendo, that the offending cow belonged to MS. BAKER (it did not), there is still no evidence demonstrating that MS. BAKER had notice of the offending cow roaming the roadway prior to the subject incident. Therefore, she had no opportunity to cure any alleged defect. Common law establishes that if MS. BAKER (as an owner) was aware of the offending cow’s propensity to escape, she could be held liable. However, where there is no such instance of a prior escape, such as in this case, MS. BAKER cannot be said to have had notice, and therefore, cannot be liable under a premises liability theory (at common law, it is the acts of a particular animal for which an owner can be held accountable, i.e., this particular cow vs. cows in general)). 7 “Livestock” is defined in § 588.13(1) as including “include all animals of the equine, bovine, or swine class, including goats, sheep, mules, horses, hogs, cattle, ostriches, and other grazing animals.” 9 In a similar set of circumstances in Fisel v. Wynns, 667 So. 2d 761 (Fla. 1996), an automobile owner struck a cow that had strayed onto a county road and sued the cow’s owner. It appeared that the cow escaped through an open gate. The Plaintiff sued based on a negligence theory. The Defendants in that case argued that it was possible a trespasser opened the gate. The trial court entered summary judgment in favor of the Defendants, the Wynns. The Fifth DCA affirmed the trial court’s decision in 650 So. 2d 46 (Fla. 5th DCA 1995), and certified a question regarding public policy to the Supreme Court. The Supreme Court evaluated the public policy and approved the Fifth DCA's decision, answering the certified question in the negative (discussed in more detail below). In Fisel, the Fifth DCA indicated that in order to hold an owner responsible for allowing their livestock to run at large, the owner must “willfully let the cattle roam, acquiesce in conditions that permit the cattle to roam, or fail to take any action in which the owner knows or should know as necessary to prevent cattle from roaming.” Id. at 48. And that, to hold an owner who provided fences and gates (and who are not themselves intentionally, willfully, carelessly, or negligently responsible for permitting the animal to run at large) liable for unforeseen acts would make such owner the virtual insurers of safety. Id. at 50. Here, there is no evidence that MS. BAKER knew that the offending cow had ever roamed prior to the subject incident; permitted the offending cow to roam at large, or intentionally or willfully allowed the cow out of its confines. For these reasons, Plaintiff cannot establish any claim against MS. BAKER for premises liability and final summary judgment is warranted. [Continued on next page] 10 II. PLAINTIFF CANNOT ESTABLISH HOW THE COW ESCAPED WITHOUT ENGAGING IN IMPERMISSIBLE SPECULATION & INFERENCE STACKING a. There Is No Evidence Establishing How The Offending Cow Escaped Simply stated, here, there is no evidence which indicates how (or if) the offending cow escaped through any portion of MS. BAKER’S fence (again, assuming arguendo that the cow was owned or kept by MS. BAKER). Generally, a landowner can only be liable for negligence if she failed to take reasonable steps to prevent injury caused by an escaped animal. However, if an animal escapes and causes injury despite the landowner taking all reasonable precautions, there may be no civil liability. The mere fact that livestock are running at large on a public roadway does not automatically mean that the owner intentionally or negligently permitted the animals to run at large. The plaintiff carries the burden of proving negligence. For example, there is no negligence where a horse escapes from a closed gate that could only be opened by human hands, see Lee v. Hinson, 160 So. 2d 166, 167 (Fla. 2d DCA 1964). Florida Courts have also determined that an owner whose cow broke through three separate enclosures before reaching a public road was not careless or negligent. See Welch v. Baker, 184 So. 2d 188, 192 (Fla. 1st DCA 1966) (“The undisputed evidence showed that the defendant had placed his cattle . . . within three fenced enclosures, so that the cattle would have to break down all three fences . . . before they could reach the public road.”). An owner could escape liability if there is evidence, such as unknown tire tracks or a different knot used to tie a gate, i.e., evidence that another person caused the animal’s release. See Gordon v. Sutherland, 131 So. 2d 520, 521–22 (Fla. 3d DCA 1961). Looking again to Fisel v. Wynns, 667 So. 2d 761 (Fla. 1996), wherein the plaintiff's truck struck a black cow on a dark road at midnight. In Fisel, Deposition testimony revealed that the 11 Defendants lived alone on forty acres on which they kept forty (40) head of cattle in a fenced enclosure with several gates. The western gate, which was 1,400 feet from the county road and secured by a sliding latch that could only be operated by human hands, was found open following the accident. The Wynns had used the gate the day before and closed it. They had no visitors during this period and did not know how the gate was opened. There was no showing that the Defendant's cattle had escaped on prior occasions, or that there had been trespassers in the past. The Court found that no construction of the facts yielded a reasonable inference of negligence. The Fifth DCA certified to the Court the following question: “Have changing conditions in Florida altered public policy as announced in Selby v. Bullock, 287 So. 2d 18 (Fla. 1973), so that a livestock owner may now be liable for injuries resulting when the owner's livestock wanders through an open gate and the reason the gate is open is unknown?” The Supreme Court answered that question in the negative and affirmed a summary judgment in favor of the defendants. Similar to the instant case, there is no construction of facts which yield a reasonable inference of negligence upon MS. BAKER. b. Only Impermissible Speculation And Inference Stacking Could Support Plaintiff’s Claim That The Offending Cow Escaped Via MS. BAKER’S Fence Even if Plaintiff can establish some elements of negligence, the mere occurrence of an incident does not give rise to a finding of negligence. Cassell v. Price, 396 So. 2d 258, 264 (Fla. 1st DCA 1981); Belden v. Lynch, 126 So. 2d 581 (Fla. 2nd DCA 1961). In Florida, a plaintiff has the burden to present evidence which shows that more likely than not the conduct of a defendant was a substantial factor in causing an accident. Broward Exec. Builders, Inc. v. Zota, 192 So. 3d 534, 536 (Fla. 4th DCA 2016). It follows that circumstantial evidence can establish an inference or fact; however, it will not support a jury inference if the evidence is purely speculative and, 12 therefore, inadequate to produce an inference that outweighs all contrary evidence. Food Fair Stores, Inc. v. Trusell, 131 So.2d 730 (Fla. 1961). The rule against impermissible stacking of inferences is designed to protect litigants from verdicts based upon conjecture and speculation. Stanley v. Marceaux, 991 So. 2d 938, 940 (Fla. 4th DCA 2008). As such, summary judgment is proper when there is no direct evidence, and circumstantial evidence does not exclude other reasonable inferences. Zolta, 192 So. 3d at 538. Further, courts apply this prohibition against the stacking of inferences when determining the propriety of summary judgment dispositions. Petruska v. Smartparks-Silver Springs, Inc., 914 So. 2d 502, 505 (Fla. 2005) (citing Koelling v. CSX Transp., Inc., 673 So. 2d 67, 67-68 (Fla. 5th DCA 1996) (“We affirm the judgment for FPL because there is no evidence, absent the stacking of conjectural inferences, that it was guilty of causative negligence.”) (internal citations omitted), review denied, 680 So. 2d 423 (Fla.1996)). Here, a jury cannot return a verdict for Plaintiff against MS. BAKER without constructing the following inferences: (i) MS. BAKER owned or kept the offending cow; (ii) MS. BAKER knew of the offending cow’s propensity to roam; (iii) The offending cow escaped via a defect in the fence; (iv) MS. BAKER knew about the defect in the fence or the defect existed for a sufficient period of time that MS. BAKER should have been aware of it; and (vi) The offending cow was not intentionally let out by trespassers or passersby These inferences are fatal to Plaintiff’s case as they cannot be made to the exclusion of all other reasonable inferences. Voelker, 72 So. 2d at 407 (holding that an inference can only be made when no other reasonable theories exist). Without more, Plaintiff’s theory equates to nothing more than speculation and conjecture that is unsupported by material facts. For Plaintiff’s claim to succeed, a jury will have to infer facts despite other reasonable inferences to the exclusion of all 13 other reasonable theories. Again, in Florida, it is well established that negligence “may not be inferred from the mere happening of an accident alone.” Winn Dixie v. White, 675 So. 2d 702 (Fla. 4th DCA 1996) (citing Cooper Hotel Servs., Inc. v. MacFarland, 662 So. 2d 710, 712 (Fla. 2d DCA 1995); Belden v. Lynch, 126 So. 2d 578, 581 (Fla. 2d DCA 1961)). Thus, final summary judgment in favor of MS. BAKER is appropriate to prevent unwarranted speculation and an impermissible stacking of inferences to the exclusion of reasonable alternative theories. III. THE PREMISES LIABILTY CLAIM FAILS BECAUSE PLAINTIFF CANNOT ESTABLISH MS. BAKER OWED A DUTY OF CARE TO PLAINTIFF Again assuming, arguendo, that Plaintiff can show that MS. BAKER owned or kept the offending cow, Plaintiff’s claim still fails because Plaintiff cannot establish that MS. BAKER owed him any duty. It is axiomatic in Florida that the mere occurrence of an accident does not give rise to an inference of negligence. See St. Joseph's Hosp. v. Cowart, 891 So. 2d 1039, 1041 (Fla. 2d DCA 1995). See also Meyer By & Through Meyer v. Torrey, 452 So. 2d 672, 673-74 (Fla. 2d DCA 1984); Winn Dixie v. White, 675 So. 2d 702, 703 (Fla. 4th DCA 1996); Crawford v. Miller, 542 So. 2d 1050, 1051 (Fla. 3d DCA 1989); Emmons v. Baptist Hosp., 478 So. 2d 440, 442 (Fla. 1st DCA 1985). To sustain a premises liability claim, the burden of proof is on the plaintiff to establish that: (1) the defendant owed a duty of reasonable care to maintain the premises in a reasonably safe condition; (2) the defendant breached that duty and (3) the defendant's breach was the proximate cause of the plaintiff's injuries and resulting damages. Clay Elec. Co-op., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla. 2003). Thus, the threshold inquiry in any premises liability claim is the legal question of whether the defendant owed a duty of care to the plaintiff. If no duty was owed and as a result breached, then no negligence can be found and summary judgment should be granted in favor of the defendant. See, e.g., Cassel v. Price, 396 So. 2d 258 (Fla. 1st DCA 1981). 14 Here, there is no evidence to establish that MS. BAKER owed Plaintiff any duty to protect him against a cow which she did not own or keep, or to maintain and inspect her fence from which the offending animal did not escape. Similarly, there is no evidence that MS. BAKER breached any purported duty. A legal duty ordinarily arises from four general sources: “(1) legislative enactments or administration regulations; (2) judicial interpretations of such enactments or regulations; (3) other judicial precedent; and (4) a duty arising from the general facts of the case.” Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003) (quoting McCain v. Fla. Power Corp., 593 So. 2d 500, 503 n.2 (Fla. 1992). “The duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader ‘zone of risk’ that poses a general threat of harm to others.” McCain, 593 So. 2d at 502. It must be an “unreasonable risk” of harm caused by defendant’s conduct, however. Stevens v. Jefferson, 436 So. 2d 33, 35 (Fla. 1983). And the risk must be created by the defendant’s conduct which the defendant thus has the ability to control. See Surloff v. Regions Bank, 179 So. 3d 472, 475 (Fla. 4th DCA 2015)(emphasis added); Aguila v. Hilton, Inc., 878 So. 2d 392, 396 (Fla. 1st DCA 2004). Because Plaintiff has brought this claim pursuant to a common law premises liability theory, and not under Ch. 588, Fla. Stat., this case falls squarely within the fourth category—the duty, if it exists, would arise from the general facts of the case. The test for determining the existence of a legal duty flowing from the general facts of the case is whether the defendant’s conduct creates or controls a foreseeable zone of risk. Demelus v. King Motor Co. of Fort Lauderdale, 24 So. 3d 759, 761 (Fla. 5th DCA 2009); Aguila v. Hilton, 878 So. 2d 392, 395 (Fla. 4th DCA 2004). The Florida Supreme Court “recognizes that a duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harm[.]” See Whitt v. Silverman, 788 So. 2d 210, 217 15 (Fla. 2001); citing McCain v. Florida Power Corp., 593 So. 2d 500, 502-503 (Fla. 1992). Simply put, a duty arises “when a defendant’s conduct creates a foreseeable zone of risk.” Id. Whether the defendant’s conduct created such a risk is a “matter of law and is not a factual question for the jury to decide.” Id. (emphasis added). Here, there is no evidence that any act by MS. BAKER created any such foreseeable zone of risk. In making determinations about how far liability should extend, courts have acknowledged that the mere ability to be injured by contact with an instrument within the control of the Defendant does not automatically extend a duty to everyone who may be injured; rather, a threshold determination of law must be made that someone in the Plaintiff’s particular circumstances was within the foreseeable “zone of risk” created by the Defendant. See Rehab. Ctr. at Hollywood Hills, LLC v. Florida Power & Light Co., 299 So. 3d 16 (Fla. 4th DCA 2020) (quoting Smith v. Fla. Power &Light Co., 857 So. 2d 224, 233 (Fla. 2d DCA 2003)). This places foreseeability at the forefront of the duty analysis. McCain v. Fla. Power Corp., 593 So. 2d 500, 503 n.2 (Fla.1992). “A foreseeable consequence is one which a prudent man would anticipate likely to result from an act.” Webb v. Glades Elec. Co-op., Inc., 521 So. 2d 258 (Fla. 2d DCA 1988). As demonstrated, there is no evidence to establish the existence of a legal duty owed by MS. BAKER flowing from the facts of this case, where it is evident that MS. BAKER did not own or keep the offending cow; there is no evidence of prior roaming by the offending cow, and there is no evidence as to how the offending cow would have purportedly escaped from MS. BAKER’S property. Therefore, Plaintiff cannot maintain a cause of action for negligence against MS. BAKER solely because Plaintiff failed to recognize a cow in the roadway adjacent to MS. BAKER’s property. 16 The Plaintiff must present admissible evidence that (1) a dangerous condition existed; (2) that the dangerous condition was caused by MS. BAKER’s negligence; and (3) that the dangerous condition caused his injuries. Summary judgment is appropriate in this case because Plaintiff is unable to provide any admissible evidence to establish the elements of his cause of action against MS. BAKER. As a result, there is no genuine issue of material act in dispute, and MS. BAKER’s Motion for Final Summary Judgment should be granted. CONCLUSION As demonstrated above, there is no evidence establishing that the offending cow belonged to MS. BAKER. Further, there is no evidence demonstrating that MS. BAKER owned/kept the cow in question; that she failed to maintain any of the fencing along her property; or that she had any knowledge of prior instances of roaming cattle. Additionally, Plaintiff cannot provide any explanation/support which demonstrates how the offending cow would have escaped through any section of fencing, beyond impermissible speculation and inference stacking. Therefore, Plaintiff cannot establish any duty owed to him by MS. BAKER, or breach of said duty, and final summary judgment is warranted. WHEREFORE, Defendant KATHARINE BAKER respectfully requests that this Court enter an Order granting her Motion for Final Summary Judgment and for such other and further relief as the Court deems just and proper. [Certificate on next page] 17 I HEREBY CERTIFY that on October 02, 2022, the foregoing was electronically filed through the Florida Courts E-Filing Portal which will send a notice of electronic filing to Ashley M. Nelson, Esquire, Morgan & Morgan, P.A., 20 N. Orange Avenue Suite 1600, Orlando, FL 32801. /s/ S. Renee Stephens Lundy S. RENEE STEPHENS LUNDY, ESQ. Florida Bar No. 0501867 BRANDON T. ACEVEDO, ESQ. Florida bar No. 1024857 Dean, Ringers, Morgan & Lawton, P.A. Post Office Box 2928 Orlando, Florida 32802-2928 Tel: 407-422-4310 Fax: 407-648-0233 RLundy@drml-law.com BAcevedo@drml-law.com BrittanK@drml-law.com Denise.Covert@drml-law.com Attorneys for Katharine Baker 18 Filing # 147885496 E-Filed 04/18/2022 04:41:32 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA JOSEPH GIFFIN, CASE NO: 2021-CA-001411 ON vs. Plaintiff, EXHIBIT KATHARINE BAKER, Defendant. "A" / PLAINTIFF'S NOTICE OF SERVICE OF ANSWERS TO INTERROGATORIES COME(S) NOW the Plaintiff, JOSEPH GIFFIN, by and through the undersigned attorneys, and gives notice to the Court that the original Interrogatories propounded upon said Plaintiff, on or about March 11, 2022, and answers thereto have been returned to counsel for Defendants, KATHARINE BAKER, on this 18th day of April, 2022. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on April 18, 2022, I electronically filed the foregoing with the Clerk of the Courts by using the Florida Courts eFiling Portal which will send notice of electronic filing to: S. Renee Stephens Lundy, Esq., Dean, Ringers, Morgan & Lawton, P.A., P.O. Box 2928, Orlando, FL 32802, RLundy@drml-law.com; BrittanK@drml-law.com; Denise.Covert@drml-law.com; Kari@drml-law.com. /s/ Ashley M. Nelson Ashley M. Nelson, Esquire FBN: 1018349 Morgan & Morgan, P.A. 20 N. Orange Avenue Suite 1600 Orlando, FL 32801 Telephone: (407) 867-4823 Facsimile: (407) 452-1632 Primary email: ANelson@forthepeople.com Secondary email: NSanchez@forthepeople.com Attorneys for Plaintiff PLAINTIFF’S ANSWERS TO DEFENDANT’S INTERROGATORIES 1. What is the name and address of the person answering these interrogatories, and, if applicable, the person's official position or relationship with the party to whom the interrogatories are directed? ANSWER: Joseph Giffin 2. List the names, business addresses, dates of employment and rates of pay regarding all employers, including self-employment, for whom you have worked in the past ten (10) years. ANSWER: Dunkin Donuts St. Cloud, FL October 2021 – November 2021 $12 Hourly Unemployed from April 2020 to October 2021 Sale Representative for Amazon Remote October 2020 – April 2021 $15 Hourly Armstrong Garage Door Lake Nona, FL August 2020 – October 2020 $600 Weekly Unemployed from June 2020 to August 2020 Paper Delivery Orlando Sentinel Kissimmee, FL January 2020 – June 2020 $400 Weekly Dominos St. Cloud, FL January 2020 $10 Hourly Labor Ready (People Ready) Kissimmee, FL 2015 – 2020 $10 - $16 Hourly RentSource Kansas City, MI June 2015 – August 2016 $400 Base & Commission Vendor Kansas City, MI April 2015 – June 2015 $11 Hourly GreenStar Roofing Lakeland, FL February 2015 – April 2015 $300 Weekly & Commission Doorstep Delivery Orlando, FL 2019 – 2014 $15 plus tip per delivery 3. List all former names and when you were known by those names. State all addresses where you have lived for the past ten (10) years, the dates you lived at each address, your Social Security number, your date of birth, and if you are or have ever been married, the name of your spouse or spouses. ANSWER: Joseph Giffin I do not recall the previous address before June 2015. 4. Do you wear glasses, contact lenses, or hearing aids? If so, who prescribed them; when were they prescribed; when were your eyes or ears last examined; and what is the name and address of the examiner? ANSWER: To the best of my recollection, I’ve been prescribed contact lenses, however, I do not recall when was the last time I had my eyes and ears examine and the name and address of the examiner. 5. Have you ever been convicted of a crime, other than any juvenile adjudication, which under the law under which you were convicted was punishable by death or imprisonment in excess of one year, or that involved dishonesty or a false statement regardless the punishment? If so, state as to each conviction, the specific crime, the date and the place of conviction. ANSWER: To the best of my recollection, I was charged of a misdemeanor. However, I do not recall of the details of my conviction. 6. Were you suffering from physical infirmity, disability, or sickness at the time of the incident described in the complaint? If so, what was the nature of the infirmity, disability or sickness? ANSWER: To the best of my knowledge, I am not suffering from any physical infirmity, disability or sickness at the time of the subject accident. 7. Did you consume any alcoholic beverages or take any drugs or medication within twelve (12) hours before the time of the incident described in the complaint? If so, state the type and amount of alcoholic beverages, drugs or medication which were consumed and when and where you consumed them. ANSWER: I did not consume any alcoholic beverages nor any drugs or medications within twelve (12) hours before the time of the incident 8. Describe in detail how the incident described in the complaint happened, including all actions taken by you to prevent the incident. ANSWER: On February 23, 2020, at approximately 4:20 a.m., I was driving and delivering newspapers. When Katherine Baker’s, bull rammed into my vehicle. 9. Describe in detail each act or omission on the part of any party to this lawsuit that you contend constituted negligence that was a contributing legal cause of the incident in question. ANSWER: Katherine Baker was negligent for failing to properly secure her bull. 10. Were you charged with any violation of law (including any regulations or ordinances) arising out of the incident described in the complaint? If so, what was the nature of the charge; what plea, or answer, if any, did you enter to the charge; what court or agency heard the charge; was any written report prepared by anyone regarding this charge, and if so, what is the name and address of the person or entity that prepared the report; do you have a copy of the report; and was the testimony at any trial, hearing, or other proceeding on the charge recorded in any manner, and if so, what was the name and address of the person who recorded the testimony? ANSWER: I was not charged with violating any law as a result of the subject accident. 11. Describe each injury for which you are claiming damages in this case, specifying the part of your body that was injured, the nature of the injury, and as to any injuries you contend are permanent, the effects on you that you claim are permanent. ANSWER: As a result of the subject accident, I suffered injuries to my neck. 12. List each item of expense or damage, other than loss of income or earning capacity, that you claim to have incurred as a result of the incident described in the complaint, giving for each item the amount incurred, the date incurred, the name and business address to whom each was paid or is owed, and the goods or services for which each was incurred. ANSWER: List of expenses: Providers Total Charges Pymts/By Whom Balance Akumin Osceola $1.950.00 - $1,950.00 819 E. Oak Street Kissimmee, FL 34744 05/12/2021 Emergency Phys. of Central FL, LLC $6,091.00 Other: $1,419.00 $4,672.00 1414 Kuhl Ave Orlando, FL 32806 Integrity Medical Group LLC $11,108.04 - $11,108.04 812 10th Street St. Cloud, FL 34769 06/03/2021 – 03/21/2022 Medical Center Radiology Group $911.00 Other $911.00 $0 20 W. Kaley Street Orlando, FL 32806 4/26/2020 – 11/26/2020 Orlando Health – Kissimmee $0 - $0 Orlando Health Dr. P Phillips Hospital $5,546.00 - $5,546.00 3090 Caruso Ct Ste 20 Orlando, FL 32806 4/23/2020 - 11/27/2020 Osceola Regional Medical Center $0 - $0 Saint Cloud Fire Rescue $0 - $0 Sheridan Radiology Services of $0 - $0 Central Florida 13. Do you contend that you have lost any income, benefits, or earning capacity in the past or future as a result of the incident described in the complaint? If so, state the nature of the income, benefits, or earning capacity, and the amount and the method that you used in computing the amount. ANSWER: As a result of the subject accident, the amount of my lost wage claim is undetermined at this time. My future lost wages are undetermined at this time. 14. Has anything been paid or is anything payable from any third party for the damages listed in your answers to these interrogatories? If so, state the amounts paid or payable, the name and business address of the person or entity who paid or owes said amounts, and which of those third parties have or claim a right of subrogation. ANSWER: Please refer to Plaintiff’s answer to Interrogatory number #12. 15. List the name, and business addresses of each physician who has treated or examined you, and each medical facility where you have received any treatment or examination for the injuries for which you seek damages in this case; and state as to each the date of treatment or examination and the injury or condition for which you were examined or treated. ANSWER: Please refer to Plaintiff’s answer to Interrogatory number #12. 16. List the names and business addresses of all other physicians, medical facilities or other health care providers by whom or at which you have been examined or treated in the past ten (10) years; and state as to each the dates of examination or treatment and the condition or injury for which you were examined or treated. ANSWER: To the best of my recollection, other than the medical providers listed in Interrogatory no. 12, below is a list of medical providers that I received medical treatment from in the last ten (10) years. 17. List the names and addresses of all persons who are believed or known by you, your agents or attorneys to have any knowledge concerning any of the issues in this lawsuit and specify the subject matter about which the witness has knowledge. ANSWER: To the best of my knowledge, the following individuals may have information regarding the issues in the subject lawsuit: Officer Jose Ramirez (Unit # 257) and Officer B. Black (Unit #: 263); parties to this lawsuit; and my treating healthcare providers may have knowledge of the issues in this lawsuit. 18. Have you heard or do you know about any statement or remark made by or on behalf of any party to this lawsuit, other than yourself, concerning any issue in this lawsuit? If so, state the name and address of each person who made the statement or statements, the name and address of each person who heard it, and the date, time, place and substance of each statement. ANSWER: I am not aware of any statement or remark made by or on behalf of any party to this lawsuit, other than myself, concerning any issue in this lawsuit. 19. State the name and address of every per