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Filing # 36211201 E-Filed 01/06/2016 12:34:15 PM
IN THE CIRCUIT COURT OF THE
EIGHTH JUDICIAL CIRCUIT, IN AND
FOR ALACHUA COUNTY, FLORIDA
CASE NO.: 01-2015-CA-004327
MARIAN MYERS,
Plaintiff,
Vv,
S$ & P OIL, INC. D/B/A GATOR FOOD
MART,
Defendant.
/
DEFENDANT, S$ & P OIL, INC. d/b/a GATOR FOOD MART’S ANSWER AND
AFFIRMATIVE DEFENSES TO PLAINTIFFS’ COMPLAINT
COMES NOW Defendant, S & P OIL, INC. d/b/a GATOR FOOD MART, by and
through undersigned counsel, and hereby files this, its Answer and Affirmative Defenses
to Plaintiff's Complaint and states as follows:
1 Each and every allegation of fault, legal responsibility and/or damage not
specifically addressed in this Answer is hereby denied in its entirety.
2 Each and every paragraph or allegation in the Complaint not specifically
addressed in this Answer is hereby denied.
3 In response to paragraph 1 of Plaintiff's Complaint, Defendant admits this
paragraph for jurisdictional purposes only, otherwise denied.
4 In response to paragraph 2 of Plaintiff's Complaint, Defendant states that
it is without sufficient information to admit or deny this paragraph and, therefore, must
deny same and demand strict proof thereof.
Page 1
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 4686 SUNBEAM ROAD - JACKSONVILLE, FLORIDA 32267 - (904) 672-4000 (804) 672-4050 FAX
"2015 CA 004327" 36211201 Filed at Alachua County Clerk 01/06/2016 12:34:25 PM EST
CASE NO.: 01-2015-CA-004327
5 In response to paragraph 3 of Plaintiff's Complaint, Defendant admits this
paragraph in its entirety.
6 In response to paragraph 4 of Plaintiff's Complaint, Defendant Defendant
denies this paragraph in its entirety.
7 In response to paragraph 5 of Plaintiff's Complaint, Defendant Defendant
denies this paragraph in its entirety.
8 In response to paragraph 6 of Plaintiff's Complaint, Defendant Defendant
denies this paragraph in its entirety.
9 In response to paragraph 7 (and all subparts thereof) of Plaintiffs
Complaint, Defendant denies this paragraph in its entirety.
10. In response to paragraph 8 of Plaintiff's Complaint, Defendant denies this
paragraph in its entirety.
11. In response to paragraph 9 of Plaintiff's Complaint, Defendant denies this
paragraph in its entirety.
AFFIRMATIVE DEFENSES
1 By and for its First Affirmative Defense, Defendant would assert that
Plaintiff herein was comparatively negligent. Any recovery herein must be reduced by
an amount equivalent to the Plaintiff's degree of negligence.
2 By and for its Second Affirmative Defense, Defendant would assert that
Plaintiff is entitled to receive, has received or, in the future, may receive compensation
for injury and damages sustained from collateral sources and this Defendant claims a
set-off for said compensation pursuant to applicable Florida law.
Page 2
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 4886 SUNBEAM ROAD - JACKSONVILLE, FLORIDA 32257 - (904) 672-4000 (204) 672-4050 FAX
CASE NO.: 01-2015-CA-004327
3 By and for its Third Affirmative Defense, Defendant would assert that
Plaintiff has failed to mitigate damages in this case, which failure to mitigate should
reduce her claim for damages in direct proportion thereto.
4 By and for its Fourth Affirmative Defense, Defendant would assert that the
matter at issue is governed by the Florida Tort Reform and Insurance Act of 1986
(Chapter 86-160 Laws of Florida). This Defendant would plead and assert all defenses
available under this Act, including but not limited to, those dealing with apportionment of
damages, collateral source set-off and joint and several liability.
5, By and for its Fifth Affirmative Defense, Defendant alleges that any
damages and/or injuries allegedly sustained by the Plaintiff were caused due to the
negligent acts of third parties over whom they had no control.
6 By and for its Sixth Affirmative Defense, Defendant alleges that Plaintiff
knew of the existence of the alleged danger stated in her Complaint, realized and
appreciated the possibility of injury as a result of the alleged danger, and having a
reasonable opportunity to avoid it, voluntarily exposed herself to it.
7 By and for its Seventh Affirmative Defense, Defendant alleges that this
cause of action is barred by the open and obvious danger doctrine in that a possessor
of land is not liable for injuries caused by a condition on the premises that is known or
obvious to the injured party.
Page 3
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 4606 SUNBEAM ROAD - JACKSONVILLE, FLORIDA 32267 - (904) 672-4000 (904) 872-4050 FAX
CASE NO.: 01-2015-CA-004327
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that on this 6 day of January, 2016, a true and correct
copy of the foregoing was filed with the Clerk of Alachua County by using the Florida
Courts e-Filing Portal, which will send an automatic e-mail message to the following
parties registered with the e-Filing Portal system: Megan D. Searls, Esq., Morgan &
Morgan, P.A., msearls@forthepeople.com, 76 South Laura Street, Suite 1100,
Jacksonville, FL 32202, Attorney for Plaintiff, Marian Myers.
COLE, SCOTT & KISSANE, P.A.
Counsel for Defendant S & P OIL, INC. D/B/A
GATOR FOOD MART
Cole, Scott & Kissane Building
4686 Sunbeam Road
Jacksonville, Florida 32257
Telephone (904) 672-4032
Facsimile (904) 672-4050
Primary e-mail: steven.worley@csklegal.com
Secondary e-mail: april.jarvis@csklegal.com
By: s/ Steven L. Worle
STEVEN L. WORLEY
Florida Bar No.: 159719
0108.0196-00/1793475
Page 4
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 4686 SUNBEAM ROAD - JACKSONVILLE, FLORIDA 32257 - (804) 672-4000 (904) 672-4050 FAX
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Filing # 36211201 E-Filed 01/06/2016 12:34:15 PM IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT, IN AND FOR ALACHUA COUNTY, FLORIDA CASE NO.: 01-2015-CA-004327 MARIAN MYERS, Plaintiff, Vv, S$ & P OIL, INC. D/B/A GATOR FOOD MART, Defendant. / DEFENDANT, S$ & P OIL, INC. d/b/a GATOR FOOD MART’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ COMPLAINT COMES NOW Defendant, S & P OIL, INC. d/b/a GATOR FOOD MART, by and through undersigned counsel, and hereby files this, its Answer and Affirmative Defenses to Plaintiff's Complaint and states as follows: 1 Each and every allegation of fault, legal responsibility and/or damage not specifically addressed in this Answer is hereby denied in its entirety. 2 Each and every paragraph or allegation in the Complaint not specifically addressed in this Answer is hereby denied. 3 In response to paragraph 1 of Plaintiff's Complaint, Defendant admits this paragraph for jurisdictional purposes only, otherwise denied. 4 In response to paragraph 2 of Plaintiff's Complaint, Defendant states that it is without sufficient information to admit or deny this paragraph and, therefore, must deny same and demand strict proof thereof. Page 1 COLE, SCOTT & KISSANE, P.A. COLE, SCOTT & KISSANE BUILDING - 4686 SUNBEAM ROAD - JACKSONVILLE, FLORIDA 32267 - (904) 672-4000 (804) 672-4050 FAX "2015 CA 004327" 36211201 Filed at Alachua County Clerk 01/06/2016 12:34:25 PM EST CASE NO.: 01-2015-CA-004327 5 In response to paragraph 3 of Plaintiff's Complaint, Defendant admits this paragraph in its entirety. 6 In response to paragraph 4 of Plaintiff's Complaint, Defendant Defendant denies this paragraph in its entirety. 7 In response to paragraph 5 of Plaintiff's Complaint, Defendant Defendant denies this paragraph in its entirety. 8 In response to paragraph 6 of Plaintiff's Complaint, Defendant Defendant denies this paragraph in its entirety. 9 In response to paragraph 7 (and all subparts thereof) of Plaintiffs Complaint, Defendant denies this paragraph in its entirety. 10. In response to paragraph 8 of Plaintiff's Complaint, Defendant denies this paragraph in its entirety. 11. In response to paragraph 9 of Plaintiff's Complaint, Defendant denies this paragraph in its entirety. AFFIRMATIVE DEFENSES 1 By and for its First Affirmative Defense, Defendant would assert that Plaintiff herein was comparatively negligent. Any recovery herein must be reduced by an amount equivalent to the Plaintiff's degree of negligence. 2 By and for its Second Affirmative Defense, Defendant would assert that Plaintiff is entitled to receive, has received or, in the future, may receive compensation for injury and damages sustained from collateral sources and this Defendant claims a set-off for said compensation pursuant to applicable Florida law. Page 2 COLE, SCOTT & KISSANE, P.A. COLE, SCOTT & KISSANE BUILDING - 4886 SUNBEAM ROAD - JACKSONVILLE, FLORIDA 32257 - (904) 672-4000 (204) 672-4050 FAX CASE NO.: 01-2015-CA-004327 3 By and for its Third Affirmative Defense, Defendant would assert that Plaintiff has failed to mitigate damages in this case, which failure to mitigate should reduce her claim for damages in direct proportion thereto. 4 By and for its Fourth Affirmative Defense, Defendant would assert that the matter at issue is governed by the Florida Tort Reform and Insurance Act of 1986 (Chapter 86-160 Laws of Florida). This Defendant would plead and assert all defenses available under this Act, including but not limited to, those dealing with apportionment of damages, collateral source set-off and joint and several liability. 5, By and for its Fifth Affirmative Defense, Defendant alleges that any damages and/or injuries allegedly sustained by the Plaintiff were caused due to the negligent acts of third parties over whom they had no control. 6 By and for its Sixth Affirmative Defense, Defendant alleges that Plaintiff knew of the existence of the alleged danger stated in her Complaint, realized and appreciated the possibility of injury as a result of the alleged danger, and having a reasonable opportunity to avoid it, voluntarily exposed herself to it. 7 By and for its Seventh Affirmative Defense, Defendant alleges that this cause of action is barred by the open and obvious danger doctrine in that a possessor of land is not liable for injuries caused by a condition on the premises that is known or obvious to the injured party. Page 3 COLE, SCOTT & KISSANE, P.A. COLE, SCOTT & KISSANE BUILDING - 4606 SUNBEAM ROAD - JACKSONVILLE, FLORIDA 32267 - (904) 672-4000 (904) 872-4050 FAX CASE NO.: 01-2015-CA-004327 CERTIFICATE OF SERVICE | HEREBY CERTIFY that on this 6 day of January, 2016, a true and correct copy of the foregoing was filed with the Clerk of Alachua County by using the Florida Courts e-Filing Portal, which will send an automatic e-mail message to the following parties registered with the e-Filing Portal system: Megan D. Searls, Esq., Morgan & Morgan, P.A., msearls@forthepeople.com, 76 South Laura Street, Suite 1100, Jacksonville, FL 32202, Attorney for Plaintiff, Marian Myers. COLE, SCOTT & KISSANE, P.A. Counsel for Defendant S & P OIL, INC. D/B/A GATOR FOOD MART Cole, Scott & Kissane Building 4686 Sunbeam Road Jacksonville, Florida 32257 Telephone (904) 672-4032 Facsimile (904) 672-4050 Primary e-mail: steven.worley@csklegal.com Secondary e-mail: april.jarvis@csklegal.com By: s/ Steven L. Worle STEVEN L. WORLEY Florida Bar No.: 159719 0108.0196-00/1793475 Page 4 COLE, SCOTT & KISSANE, P.A. COLE, SCOTT & KISSANE BUILDING - 4686 SUNBEAM ROAD - JACKSONVILLE, FLORIDA 32257 - (804) 672-4000 (904) 672-4050 FAX