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Filing # 98595429 E-Filed 11/08/2019 10:38:32 AM
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CIVIL DIVISION
LUERETTA SMITH,
Plaintiff, CASE NO. CACE-19-021319 (13)
VS.
WINN-DIXIE STORES, INC.,
Defendant.
/
ANSWER AND AFFIRMATIVE DEFENSES
Defendant, WINN-DIXIE STORES, INC. (hereinafter “Defendant”) by and through
undersigned counsel, hereby files its Answer and Affirmative Defenses to Plaintiff's Complaint,
and states:
1. Denied and demand strict proof thereof.
2. Admitted.
3. Admitted.
4. Denied as phrased.
5. Denied as phrased.
6. Denied and demand strict proof thereof.
7. Denied and demand strict proof thereof.
8. Denied and demand strict proof thereof.
9. Denied and demand strict proof thereof.
10. Defendant denies each allegation in Paragraph 10a. through 10k. and demands
strict proof thereof.
1025563\304675846.v1
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 11/08/2019 10:38:32 AM.****CASE NO. CACE-19-021319 (13)
11. | Defendant denies each and every allegation not specifically admitted herein and
demands strict proof thereof.
12. Defendant denies each and every allegation of negligence, causation in fact,
proximate cause, damages and/or injuries as this Defendant is without sufficient information to
affirm or deny said allegations at the present time.
13. Defendant demands trial by jury of all issues so triable as of right by a jury.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
At all times material hereto, the alleged accident and/or incident occurred above and
beyond the control of this Defendant and was caused by actions and/or omissions of third
persons and conditions beyond the control of the Defendant. Defendant denies any negligence.
SECOND AFFIRMATIVE DEFENSE
At all times material hereto, Plaintiff conducted herself in a negligent and careless
manner, that said negligence and carelessness was a contributing and/or the sole proximate legal
cause of the injuries and damages complained of and that by reason thereof, the Plaintiff is
barred in whole and/or in part from recovery against Defendant on the ground of comparative
negligence. Defendant denies any negligence.
THIRD AFFIRMATIVE DEFENSE
Plaintiff has failed to mitigate her damages, and, as such, Plaintiff's recovery, if any,
should be reduced by the amount she could have lessened her claimed injuries or damages.
Defendant denies any negligence.
1025563\304675846.v1CASE NO. CACE-19-021319 (13)
FOURTH AFFIRMATIVE DEFENSE
At all times material hereto, the Plaintiff knew, or in the exercise of reasonable care,
should have known of the potential hazards and dangers for which she complains, and that
thereafter she voluntarily chose to remain exposed to said potential hazards and dangers of which
she now complains, and the Plaintiff is, therefore, barred from recovery in whole and/or in part
against this Defendant on the ground of assumed risk. Defendant denies any negligence.
FIFTH AFFIRMATIVE DEFENSE
Defendant asserts the accident herein falls under the provisions of the “Tort Reform and
Insurance Act of 1986” which said act specifically addresses but is not limited to: §768.76,
Deduction From Jury Verdict of all Collateral Source Payments to Plaintiff; §768.78, Alternative
Methods of Payment of Damage Awards; and §768.81, Contributory Fault and Apportionment of
Damages Between Tortfeasors. Defendant pleads all of the defenses available to it under said
Act.
SIXTH AFFIRMATIVE DEFENSE
Plaintiff's damages and injuries, if any, were a result of independent, superseding and/or
intervening causes over which this Defendant had no control, and for which Defendant cannot be
legally liable. Defendant denies any negligence.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiff has or may in the future obtain a judgment or settlement against a third party or
third parties for the same damages sought in this lawsuit. In that event, Defendant is entitled to a
set-off for all such sums paid pursuant to any settlement and/or judgment. Defendant denies any
negligence.
1025563\304675846.v1CASE NO. CACE-19-021319 (13)
EIGHTH AFFIRMATIVE DEFENSE
The Plaintiff failed to take ordinary and reasonable care in conducting herself on the
premises. The Plaintiff's failure to use all ordinary care and reasonable care was a direct and
proximate cause of Plaintiff's damages. Defendant denies any negligence.
NINTH AFFIRMATIVE DEFENSE
The Defendant had insufficient notice, whether constructive or actual regarding the
condition complained of by the Plaintiff. Any and all conditions complained of by the Plaintiff
existed for such a short period of time that there was no notice or insufficient notice to Defendant
so that corrective action could have been taken. Defendant denies any negligence.
TENTH AFFIRMATIVE DEFENSE
At all times complained of, Defendant conducted itself, including its maintenance and/or
inspection and supervision of its premises, reasonably and adequately. Defendant denies any
negligence.
ELE
TH AFFIRMATIVE DEFENSE
The disability, disfigurement or injury claimed of or alleged by the Plaintiff is as a result
of pre-existing conditions which were not caused by or aggravated by any alleged acts of
negligence of Defendant. Defendant denies any negligence.
TWELFTH AFFIRMATIVE DEFENSE
Pursuant to Florida Statutes §768.0755, the Plaintiff maintains the burden of proof in
claims of negligence involving transitory foreign objects or substances against persons or entities
in possession or control of business premises. Defendant pleads all of the defenses available to it
under said statute.
1025563\304675846.v1CASE NO. CACE-19-021319 (13)
THIRTEENTH AFFIRMATIVE DEFENSE
Defendant expressly reserves the right to amend, delete and/or add additional defenses as
discovery and investigation in this matter continues.
WHEREFORE, the Defendant, WINN-DIXIE STORES INC., demands judgment in its
favor and against the Plaintiff, LUERETTA SMITH, an award of taxable costs and for any and
all other relief this Court deems just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 8th day of November, 2019, a true and correct copy of
the foregoing was filed and served via Florida Courts eFiling Portal to the following counsel of
record: Justin G. Morgan, Esq., The Law Offices of Justin G. Morgan, P.A., 2500 Weston Road,
Suite 211, Weston, FL 33331; pleadings@justinmorganlaw.com.
HINSHAW & CULBERTSON LLP
/s/ Paul J.Gamm
Paul J. Gamm
Florida Bar No. 0577146
One East Broward Boulevard
Suite 1010
Ft. Lauderdale, FL 33301
Telephone: 954-467-7900
Facsimile: 954-467-1024
Primary: pgamm@hinshawlaw.com
Secondary: kcardenas@hinshawlaw.com
Attorneys for Defendant WINN-DIXIE
1025563\304675846.v1
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Filing # 98595429 E-Filed 11/08/2019 10:38:32 AM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CIVIL DIVISION LUERETTA SMITH, Plaintiff, CASE NO. CACE-19-021319 (13) VS. WINN-DIXIE STORES, INC., Defendant. / ANSWER AND AFFIRMATIVE DEFENSES Defendant, WINN-DIXIE STORES, INC. (hereinafter “Defendant”) by and through undersigned counsel, hereby files its Answer and Affirmative Defenses to Plaintiff's Complaint, and states: 1. Denied and demand strict proof thereof. 2. Admitted. 3. Admitted. 4. Denied as phrased. 5. Denied as phrased. 6. Denied and demand strict proof thereof. 7. Denied and demand strict proof thereof. 8. Denied and demand strict proof thereof. 9. Denied and demand strict proof thereof. 10. Defendant denies each allegation in Paragraph 10a. through 10k. and demands strict proof thereof. 1025563\304675846.v1 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 11/08/2019 10:38:32 AM.****CASE NO. CACE-19-021319 (13) 11. | Defendant denies each and every allegation not specifically admitted herein and demands strict proof thereof. 12. Defendant denies each and every allegation of negligence, causation in fact, proximate cause, damages and/or injuries as this Defendant is without sufficient information to affirm or deny said allegations at the present time. 13. Defendant demands trial by jury of all issues so triable as of right by a jury. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE At all times material hereto, the alleged accident and/or incident occurred above and beyond the control of this Defendant and was caused by actions and/or omissions of third persons and conditions beyond the control of the Defendant. Defendant denies any negligence. SECOND AFFIRMATIVE DEFENSE At all times material hereto, Plaintiff conducted herself in a negligent and careless manner, that said negligence and carelessness was a contributing and/or the sole proximate legal cause of the injuries and damages complained of and that by reason thereof, the Plaintiff is barred in whole and/or in part from recovery against Defendant on the ground of comparative negligence. Defendant denies any negligence. THIRD AFFIRMATIVE DEFENSE Plaintiff has failed to mitigate her damages, and, as such, Plaintiff's recovery, if any, should be reduced by the amount she could have lessened her claimed injuries or damages. Defendant denies any negligence. 1025563\304675846.v1CASE NO. CACE-19-021319 (13) FOURTH AFFIRMATIVE DEFENSE At all times material hereto, the Plaintiff knew, or in the exercise of reasonable care, should have known of the potential hazards and dangers for which she complains, and that thereafter she voluntarily chose to remain exposed to said potential hazards and dangers of which she now complains, and the Plaintiff is, therefore, barred from recovery in whole and/or in part against this Defendant on the ground of assumed risk. Defendant denies any negligence. FIFTH AFFIRMATIVE DEFENSE Defendant asserts the accident herein falls under the provisions of the “Tort Reform and Insurance Act of 1986” which said act specifically addresses but is not limited to: §768.76, Deduction From Jury Verdict of all Collateral Source Payments to Plaintiff; §768.78, Alternative Methods of Payment of Damage Awards; and §768.81, Contributory Fault and Apportionment of Damages Between Tortfeasors. Defendant pleads all of the defenses available to it under said Act. SIXTH AFFIRMATIVE DEFENSE Plaintiff's damages and injuries, if any, were a result of independent, superseding and/or intervening causes over which this Defendant had no control, and for which Defendant cannot be legally liable. Defendant denies any negligence. SEVENTH AFFIRMATIVE DEFENSE Plaintiff has or may in the future obtain a judgment or settlement against a third party or third parties for the same damages sought in this lawsuit. In that event, Defendant is entitled to a set-off for all such sums paid pursuant to any settlement and/or judgment. Defendant denies any negligence. 1025563\304675846.v1CASE NO. CACE-19-021319 (13) EIGHTH AFFIRMATIVE DEFENSE The Plaintiff failed to take ordinary and reasonable care in conducting herself on the premises. The Plaintiff's failure to use all ordinary care and reasonable care was a direct and proximate cause of Plaintiff's damages. Defendant denies any negligence. NINTH AFFIRMATIVE DEFENSE The Defendant had insufficient notice, whether constructive or actual regarding the condition complained of by the Plaintiff. Any and all conditions complained of by the Plaintiff existed for such a short period of time that there was no notice or insufficient notice to Defendant so that corrective action could have been taken. Defendant denies any negligence. TENTH AFFIRMATIVE DEFENSE At all times complained of, Defendant conducted itself, including its maintenance and/or inspection and supervision of its premises, reasonably and adequately. Defendant denies any negligence. ELE TH AFFIRMATIVE DEFENSE The disability, disfigurement or injury claimed of or alleged by the Plaintiff is as a result of pre-existing conditions which were not caused by or aggravated by any alleged acts of negligence of Defendant. Defendant denies any negligence. TWELFTH AFFIRMATIVE DEFENSE Pursuant to Florida Statutes §768.0755, the Plaintiff maintains the burden of proof in claims of negligence involving transitory foreign objects or substances against persons or entities in possession or control of business premises. Defendant pleads all of the defenses available to it under said statute. 1025563\304675846.v1CASE NO. CACE-19-021319 (13) THIRTEENTH AFFIRMATIVE DEFENSE Defendant expressly reserves the right to amend, delete and/or add additional defenses as discovery and investigation in this matter continues. WHEREFORE, the Defendant, WINN-DIXIE STORES INC., demands judgment in its favor and against the Plaintiff, LUERETTA SMITH, an award of taxable costs and for any and all other relief this Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 8th day of November, 2019, a true and correct copy of the foregoing was filed and served via Florida Courts eFiling Portal to the following counsel of record: Justin G. Morgan, Esq., The Law Offices of Justin G. Morgan, P.A., 2500 Weston Road, Suite 211, Weston, FL 33331; pleadings@justinmorganlaw.com. HINSHAW & CULBERTSON LLP /s/ Paul J.Gamm Paul J. Gamm Florida Bar No. 0577146 One East Broward Boulevard Suite 1010 Ft. Lauderdale, FL 33301 Telephone: 954-467-7900 Facsimile: 954-467-1024 Primary: pgamm@hinshawlaw.com Secondary: kcardenas@hinshawlaw.com Attorneys for Defendant WINN-DIXIE 1025563\304675846.v1