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May 24, 2017

Partner Harold Stevens & Attorney Jason Handin Successfully Defend Wholesale Warehouse Club in Two Premises Liability Cases

Fort Lauderdale Partner, Harold S. Stevens, and Attorney, Jason E. Handin, successfully defended an international wholesale Warehouse club by obtaining a Final Summary Judgment in two separate cases on similar grounds.

In the first case, the Plaintiff sued the Warehouse for negligence related to injuries and damages incurred when she allegedly slipped and fell on an unknown substance while walking on a covered entrance walkway outside of the Warehouse.  The Plaintiff claimed damages related to her injuries, which included a fractured left kneecap requiring surgery.

At the Plaintiff’s deposition she testified that there were no witnesses to her fall or to the alleged substance on the walkway, and that no photos were taken of the substance that allegedly caused her to slip. Further, the Plaintiff did not complete an accident report before she was taken, by ambulance, to a hospital after the fall. The Plaintiff also testified that she never personally observed the alleged substance on the walkway and could not state what kind of substance it was, or, most importantly, how long it had been on the walkway.  Rather, she testified at her deposition that she was told by an unidentifiable third party that it might have been rainwater.
In the Warehouse’s Motion for Summary Judgment (MSJ), Harold and Jason argued that in order to find the business liable, the Plaintiff was required, by statute, to prove that the business had actual or constructive notice of the substance that allegedly caused her fall.  Harold and Jason argued that based on the Plaintiff’s own testimony, it was impossible for her to prove the Warehouse’s actual or constructive notice of the alleged substance given that no other person had witnessed the incident, or that there was even a substance on the walkway, or how long the substance had allegedly been on the walkway surface.

In response to the MSJ, the Plaintiff filed two documents.  The first was a two-page letter from the Plaintiff’s expert, who happened to have inspected the subject walkway in an unrelated case two days prior the Plaintiff’s fall.  The Plaintiff argued that her expert found the walkway to be dangerous when wet.  The second filed document was a printout from the Weather Channel’s website, which the Plaintiff argued reflected that it had rained in the area of the Warehouse during the hours preceding her fall, therefore the substance must have been rainwater, and that the Warehouse had constructive notice of the condition of the walkway.

These arguments were presented at the hearing on the MSJ. In opposition to these documents Harold and Jason argued that the two-page expert letter constituted inadmissible hearsay as it had not been authenticated, and even if the letter had been authenticated it reflects that it had been raining two days prior to the Plaintiff’s fall, not on the date of her fall. Similarly, they argued that the unauthenticated weather report was inadmissible, and rather only official weather reports from the National Oceanic and Atmospheric Administration could be considered.  Further, the inadmissible weather report actually reflected that there had been no rain in the area of the Warehouse for the 12 hours preceding the Plaintiff’s fall, contradictory to the Plaintiff’s argument.  Therefore, Harold and Jason argued that these two documents were inadmissible and could not be considered by the Judge.

As a result of these arguments, the Judge entered Final Summary Judgment in favor of the Warehouse.

In the second similar case, the Plaintiff sued the Warehouse for negligence related to injuries and damages incurred when she allegedly slipped on a raspberry and fell in an aisle inside the Warehouse.  The Plaintiff claimed damages and injuries including a torn meniscus in both knees.

Like in the first case, Final Summary Judgment was granted based solely on the Plaintiff’s deposition testimony, a very rare occurrence.  The Plaintiff testified that she was walking down an aisle, where raspberries were not sold, and slipped on a raspberry. The Plaintiff claimed that she only noticed the smear of the squished raspberry on the floor after she fell, and that she did not know how long the raspberry had been on the floor prior to the incident. She also testified that she was not using a shopping cart at the time and therefore her vision was not obstructed in any way. There were also no witnesses to her fall and no witnesses to the alleged existence of the raspberry on the floor before her fall.

Again, Harold and Jason filed a Motion for Summary Judgment based on the statute stating the Plaintiff must prove the business had actual or constructive notice of the foreign substance.  Specifically, they argued that the Plaintiff could not prove that the Warehouse had any actual or constructive notice of the raspberry as 1) there were no witnesses to the Plaintiff’s fall; 2) no other person had complained of raspberries on the floor that day; 3) the Plaintiff had testified that she saw the raspberry smear only after she had stepped on it; and 4) the Warehouse’s internal clean-floor procedures, and the employee on duty who was responsible for conducting these procedures, stated in an affidavit under oath that he did not see any raspberries on the floor during his cleaning that occurred no more than 20 minutes prior to the Plaintiff’s alleged fall.

At the hearing on the MSJ, the Plaintiff argued, without any proof, that the employee who performed the “floor walk” just prior to her fall had overlooked the raspberry due to his distance from the alleged fruit on the floor, that the Warehouse should have had constructive notice based on the 20-minute time frame between the employee’s inspection and the Plaintiff’s fall, and that her completion of an incident report should constitute some type of notice for the business. Harold and Jason countered these arguments as speculative, contrary to the Warehouse’s responses to discovery, and insufficient grounds to prove constructive notice of the raspberry on the floor. Further, Harold and Jason argued that no constructive notice existed and there was only evidence of the Warehouse having notice of the raspberry after the Plaintiff’s fall, not before the fall, because 1) the Plaintiff testified that she observed the smear of the raspberry only after she had already stepped on it, foreclosing any evidence that someone else may have stepped on it prior to the Plaintiff, and 2) the Plaintiff filled out an incident report after her fall, which again only proves the Warehouse’s subsequent notice of the raspberry, not prior notice. Ultimately, the Judge agreed with Harold and Jason, and granted a Final Summary Judgement.

 The two cases are huge successes, as it is very rare for a Judge to grant Summary Judgment so early in a case, and by obtaining these Summary Judgments Harold and Jason saved the client an enormous amount of future legal fees and costs.