An injured consumer’s lawyer is generally going to plead that the store owner / operator was aware of the following facts:

1. had actual or constructive knowledge of a dangerous condition on its premises that injured the client;
2. (ii) created a dangerous condition on its premises through its mode of operation in stacking the item that allegedly injured the client. This is called “constructive notice” which permits the jury to find that the owner / operator failed to maintain the premises in a reasonably safe condition.

Florida courts recognize that this no longer holds true in premises liability cases involving a slip and fall on a transitory foreign substance. See § 768.0755, Fla. Stat. (2010); Kenz v. Miami-Dade Cty., 116 So. 3d 461 (Fla. 3d DCA 2013). However, this case is not such a case at all.

On June 23, 2010, the consumer was shopping at a Harbor Freight store in Miami. According to consumer, while he was perusing the shelves in a store aisle, a large metal object fell off an upper aisle shelf and struck the consumer rom behind, injuring his knee. Apparently, the consumer was facing a wall of shelves when an item on one of the shelves behind him fell and somehow struck him.

Counsel for the injured consumer filed a two-count, second amended complaint against Harbor Freight alleging negligence (Count I) and negligent mode of operation (Count II). Both of these claims were based, in part, on allegations that large and heavy equipment — such as the object that hit him — were displayed in an unsafe manner over areas that Harbor Freight’s invitees are expected to walk while shopping.

The injured consumer testified at his deposition that he did not see the object on the aisle shelf before the incident. Nor did the injured consumer see the object on the ground after it hit him. The injured consumer testified, however, that he saw the object in his peripheral vision as it was falling. The consumer also testified that while he was being attended to after the incident, a store employee showed the consumer a metal trailer hitch and identified the hitch as the object that had struck him.

Though Harbor Freight asserts that its store policy is to display such heavy objects only on lower shelves, Khorran testified that, immediately after the incident, he saw trailer hitches being stored on the top shelf in question at a height of at least eight or nine feet from the ground.

Harbor Freight filed a motion for summary judgment, claiming there was no evidence that Harbor Freight had any actual or constructive knowledge or notice of the alleged dangerous condition prior to the incident. In its motion, Harbor Freight argued that “[e]ven assuming that it was a trailer hitch that fell on the consumer and that it had been dangerously stacked, consumer. produced no evidence as to where the trailer hitch was located at the time of the incident, that Harbor Freight created the dangerous condition, or that Harbor Freight had actual or constructive notice of it.” In support of its summary judgment motion, Harbor Freight also produced an expert affidavit, which opined that the consumer’s version of events was a “physical impossibility.”

In response, the consumer filed his own expert affidavit, which opined that the consumer’s version of events was “reasonable.” In his response, consumer’s lawyer also argued that he was entitled to a res ipsa loquitur inference and, therefore, that any actual or constructive notice of a dangerous condition is irrelevant.

While the transcript from the summary judgment hearing reflects that the trial court rejected Harbor Freight’s “impossibility” claim, the trial court, nevertheless, entered summary judgment for Harbor Freight, concluding that the record evidence was devoid of any genuine issue of material fact. The consumer timely appealed the trial court’s summary judgment for Harbor Freight.

1. ANALYSIS

Consumer asserts two distinct, albeit similar, negligence claims against Harbor Freight. The consumer’s negligence claim (Count I) is premised upon there being a dangerous condition at the Harbor Freight store and requires proof that Harbor Freight either knew or should have known of the alleged dangerous condition. In the alternative, consumer’s negligent mode of operation” claim (Count II) is premised upon Harbor Freight’s alleged conduct in creating the dangerous condition, thus obviating the knowledge element inherent in the negligence claim. We discuss each claim below, and why the record evidence precludes summary judgment on either claim.

1. The Consumer’s Negligence Claim

A property owner owes an invitee a “duty to use reasonable care in maintaining the property in a reasonably safe condition.” Grimes v. Family Dollar Stores of Fla., Inc., 194 So. 3d 424, 427 (Fla. 3d DCA 2016). Where an invitee has been injured by a dangerous condition on a business premises and seeks to recover damages from the premises owner, the invitee ordinarily must establish that the premises owner had either actual or constructive knowledge or notice of the dangerous condition. Id. Constructive knowledge may be inferred if the dangerous condition existed for such a length of time that in the exercise of ordinary care, the premises owner should have known of it and taken action to remedy it. Id. at 427-28.

In his deposition, the consumer testified that: (i) two Harbor Freight employees were stacking the shelves behind him, in the same aisle where the injured consumer was standing; (ii) injured consumer saw the object that hit him fall from above and behind his head; (iii) one of the Harbor Freight employees who had been stacking the shelves behind the consumer identified a trailer hitch as the object that had struck him; (iv) immediately following the incident, consumer looked up from where he was seated and saw multiple, similar trailer hitches stored on the top shelf, directly behind where he had been standing; and (v) the top shelf was at least eight or nine feet high, requiring the use of a ladder to reach it.

Viewing this evidence in a light most favorable to the consumer reasonable inferences can be made that the trailer hitch that hit the consumer was dangerously stacked on the top shelf behind where the consumer was standing, and that the Harbor Freight employees who then were stocking the shelves somehow caused the trailer hitch to fall. That the top shelf was not reachable without the assistance of a ladder and that multiple trailer hitches were displayed there support a reasonable inference that a Harbor Freight employee either created the dangerous condition by placing the trailer hitches there — as opposed to a random customer re-shelving a lone, unwanted item in the wrong place — or that the dangerous condition existed for a sufficient period of time that a Harbor Freight employee should have known about it and taken steps to remedy it.

Contrary to the trial court’s finding, there is record evidence sufficient to create a genuine issue of material fact precluding summary judgment for Harbor Freight on whether it had actual or constructive knowledge of the dangerous condition. Id. Hence, we reverse the trial court’s summary judgment for Harbor Freight on Count I of the consumer’s second amended complaint.

1. The Consumer’s Negligent Mode of Operation Claim

A claim for negligent mode of operation “recognizes the common-sense proposition of negligence law that the duty of care required under the circumstances may consist of taking reasonable precautions so as to minimize or eliminate the likelihood of a dangerous condition arising in the first instance.” Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256, 260 (Fla. 2002). Under this negligence theory, the focus is on the manner in which the premises owner operates, rather than on the particular events surrounding the plaintiff’s accident. Id. at 261. If the premises owner operates in a manner that creates a dangerous or unsafe condition, the premises owner can be held liable. Id. Importantly, under the mode of operation theory of negligence, “the requirement of establishing constructive knowledge is altered or eliminated.” Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 323 (Fla. 2001).²

As the Florida Supreme Court has explained:

The duty of premises owners to maintain their premises in a safe condition is not exclusively limited to detecting dangerous conditions on the premises after they occur and then correcting them; the duty to exercise reasonable care may extend to taking actions to reduce, minimize, or eliminate foreseeable risks before they manifest themselves as particular dangerous conditions on the premises. Of course, the duty of care may vary with the circumstances. See, e.g., Wal — Mart Stores, Inc. v. Rogers, 714 So. 2d 577, 578 (Fla. 1st DCA 1998) (whether store was negligent in manner in which it hung radios from hook so as to create a dangerous condition was jury question); Ochlockonee Banks Rest., Inc. v. Colvin, 700 So. 2d 1229, 1230 (Fla. 1st DCA 1997) (where jury could have determined that the defendant’s negligence consisted of allowing a dangerous condition to exist by allowing people to place their drinks on the railing immediately adjacent to the dance floor); Klaue v. Galencare, Inc., 696 So. 2d 933, 935 (Fla. 2d DCA 1997) (“[W]hether a business entity was negligent in stacking items on a shelf at a particular height, in a particular manner, and at a particular location thus causing a dangerous condition to exist is a jury question.”); Harrell v. Beall’s Dep’t Store, Inc., 614 So. 2d 1142, 1143 (Fla. 2d DCA 1993) (whether a department store created a dangerous condition by the manner in which it mounted a display rack is a jury question).

Markowitz, 826 So. 2d at 259-60.

Here, a Harbor Freight employee testified in his deposition that when Harbor Freight receives a shipment of trailer hitches, an employee removes the trailer hitches from the boxes they are shipped in and then stacks them loosely on the store shelves.³ Harbor Freight also introduced evidence that it has a policy of displaying, and does display, heavy metal objects on lower shelves (below eye level). Yet, in his deposition, the consumer testified that he saw several, metal trailer hitches stored on the top shelf, at a height of eight or nine feet (significantly higher than eye level).

“Under Florida law, . . . the question of whether a business entity was negligent in stacking items on a shelf at a particular height, in a particular manner, and at a particular location thus causing a dangerous condition to exist is a jury question.” Klaue v. Galencare, Inc., 696 So. 2d 933, 935 (Fla. 2d DCA 1997); Valdes v. Faby Enters., Inc., 483 So. 2d 65, 65 (Fla. 3d DCA 1986) (“Whether Faby was negligent in stacking the cases of beer at the height and in the manner and location in which it did was a question for the jury.”). Simply put, we cannot conclude, based on our de novo review of the summary judgment evidence, that Harbor Freight met its burden of establishing the absence of any genuine issue of material fact with regard to the consumer’s negligent mode of operation claim. Hence, we also reverse the trial court’s summary judgment for Harbor Freight on Count II of the consumer’s second amended complaint.

III. CONCLUSION

Because genuine issues of material fact exist as to both the consumer’s negligence claim, and his negligent mode of operation claim against Harbor Freight, we reverse the trial court’s summary judgment and remand for proceedings consistent herewith. Reversed and remanded with instructions.

Another case in the Florida’s court system ended in favor of the Palmetto Hospital and the hospital’s contracted cleaning company by way of entry of a final summary judgment in favor of the defendants. This was because of the considerable burden placed on the plaintiff in Florida that the plaintiff must show some evidence that the defendant “knew or should have known” that there was a foreign substance on the floor. Most of us have been at the emergency room for a friend of family member and we have actually seen how busy the emergency room can be. There are paramedics, nurses, doctors, staff and patients and their family waiting or walking about. I personally have never seen any maintenance being done to the floors while in the walkways or halls of the emergency room but I was not present in the present case. In the Palmetto case, the Plaintiff saw someone in a uniform spraying what smelled like “pine sol” on a gurney and wiping down the gurney. She attempted to avoid the dark grey spot on the floor of the hallway but slipped and fell while she was walking through the hospital’s emergency room. She later sued. The appellate court cited the well settled law in Florida that the Plaintiff must plead and demonstrate evidence of the following: “A negligence claim has four elements: (1) a duty by defendant to conform to a certain standard of conduct; (2) a breach by defendant of that duty; (3) a causal connection between the breach and injury to plaintiff; and (4) loss or damage to plaintiff.” Wilson-Greene v. City of Miami, No. 3D14-3094, slip op. at 4 (Fla. 3d DCA Jan. 25, 2017) (citing Bartsch v. Costello, 170 So. 3d 83, 86 (Fla. 4th DCA 2015)). It is undisputed that the Plaintiff was a business invitee on the hospital premises and, therefore, the hospital owed her a duty to exercise reasonable care to maintain their premises in a safe condition. Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 423 (Fla. 4th DCA 2014). However, where a business invitee slips and falls on a “transitory substance” in a business establishment as occurred here, proof of the breach element of the claim against an owner of the establishment is statutorily constrained by section 768.0755 of the Florida Statutes (2013). In her deposition, the Plaintiff asserted that the substance smelled like a cleaning product similar to “Pine Sol,” she did not know how long the substance had been on the floor, and she thought that “because [the man’s] uniform was kind of gray, dark gray, [she assumed] that he was an EMS.” The Hospital further asserted that it employed reasonable measures to maintain its emergency department in a reasonably safe condition by having its own security personnel police the emergency room area on a regular basis to correct any dangerous condition, and by employing Hospital Housekeeping Systems, which assigned two housekeepers to the emergency department twenty-four hours per day, seven days per week. What might have made a difference in the outcome would have been if the record contained more documentation regarding the cleaning schedules, cleaning logs or employee testimony concerning the extent to which the Hospital’s security personnel or Hospital Housekeeping Systems performed their assigned and contractual tasks. Nevertheless, on this record, the trial court granted summary judgment in favor of the Hospital and Hospital Housekeeping Systems, Inc. Certainly, had the plaintiff taken pictures of the floor, the gurney, and of the man using the spray bottle, this might have permitted her lawyer to conduct more discovery that may have helped her discovery admissible evidence. It is normal to be in shock and embarrassed at the time of the incident and not focused anything else but the  pain.

Water intrusion occurs in so many condominiums and homes in Florida rendering the home uninhabitable. The homeowner’s insurance companies, adjusters, lawyers and experts seldom agree on what the source of the water is. Determining the source of the water can be very difficult to isolate in many cases.

Experts will examine the property for months and additional experts retained while the homeowner is inconvenienced or even required to move from the property while the dispute goes through the court system.

In one Florida case the home was purchased in April 2005, when it was four years old. [American Home Assurance Company (AHAC)] provided homeowners insurance as of the date of the purchase. The policy, which insured against “all risks,” was issued through a private client group and was referred to as a manuscript policy. The house and other permanent structures were insured for over $8,000,000. The policy also provided additional coverage for loss of use of the home.

Shortly after the owner bought the residence, water began to intrude during rainstorms. Major water leaks were reported to property manager as early as May 31, 2005. She prepared a list of problems: leaks in the main house at the foyer, the living room, dining room, piano room, exercise room, master bathroom, and upstairs bathroom. By June 22, 2005, the property manager advised the owner of these leaks in writing. It became clear that the house suffered from major design and construction defects. After an August rain, paint along the windows just fell off the wall. In October 2005, Hurricane Wilma struck Naples and further damaged the residence.

The owner did not report the water intrusion and other damages to AHAC until December 30, 2005. AHAC investigated the claim, and in April 2006 it denied coverage for most of the claimed losses.

The residence could not be repaired and was eventually demolished. In January 2007, The homeowner filed suit against a number of defendants, including the sellers of the property, the architect who designed the residence, and the construction company that built it. He alleged that the home had been negligently designed and constructed and that the sellers had fraudulently failed to disclose the defects in the property. The homeowner eventually amended his complaint in November 2009, adding AHAC as a defendant and seeking a declaration that the policy provided coverage for his damages. After the homeowner settled his claims against a majority of all other defendants, the trial proceeded only on his declaratory action against AHAC. The jurors found in favor of homeowner and the court eventually entered judgment against AHAC.

On appeal, the Second District found that “[t]here is no dispute in this case that there was more than one cause of the loss, including defective construction, rain, and wind.” Id. at 197. However, the court disagreed with the trial court’s application of Wallach, 527 So. 2d 1386, and, in fact, disagreed with the Third District’s “determination that the concurrent causation doctrine should be applied in a case involving multiple perils and a first-party insurance policy.” Sebo, 141 So. 3d at 198. The court reversed and remanded for a new trial, “in which the causation of homeowner’s loss is examined under the efficient proximate cause theory.”

The issue presented is whether coverage exists under homeowner’s all-risk policy when multiple perils combined to create a loss and at least one of the perils is excluded by the terms of the policy.

To answer this question, this Court must determine the proper theory of recovery to apply, which is a pure question of law.

Additionally, the policy at issue in this case is an all-risk policy. We have stated that “[a]lthough the term ‘all-risk’ is afforded a broad, comprehensive meaning, an ‘all-risk’ policy is not an ‘all loss’ policy, and this does not extend coverage for every conceivable loss.” Id. at 1086 (citation omitted). Insurance contracts are construed in accordance with the plain language of the policy. Id. (citing Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 33 (Fla. 2000).

However, if the language is susceptible to more than one reasonable interpretation and is therefore ambiguous, the policy will be strictly construed against the insurer and in favor of the insured. Id. “[A]mbiguous ‘exclusionary clauses are construed even more strictly against the insurer than coverage clauses.’ ” Id. (quoting Anderson, 756 So. 2d at 34). In short, in all-risk policies such as the one held by the homeowner construction is governed by the language of the exclusionary provisions.

We are confronted with determining the appropriate theory of recovery to apply when two or more perils converge to cause a loss and at least one of the perils is excluded from an insurance policy. When addressing this question, courts have developed competing theories on how to determine coverage: the efficient proximate cause and concurring cause doctrines.

To begin our analysis, we first explain these doctrines. Then we discuss the Second District’s decision below. We conclude that when independent perils converge and no single cause can be considered the sole or proximate cause, it is appropriate to apply the concurring cause doctrine. Accordingly, we quash the decision below.

Efficient Proximate Cause (EPC)

The EPC provides that where there is a concurrence of different perils, the efficient cause — the one that set the other in motion — is the cause to which the loss is attributable. Sabella v. Nat’l Union Fire Ins. Co., 377 P.2d 889, 892 (Cal. 1963); Fire Ass’n of Phila. v. Evansville Brewing Ass’n, 75 So. 196 (Fla. 1917).

We applied the EPC in Evansville Brewing, where the coverage at issue provided under an all-loss fire policy excluded loss caused by an explosion. We explained, “[w]hile the insurer is not liable for a loss caused by an explosion which was not produced by a preceding fire, yet if the explosion is caused by fire during its progress in the building, the fire is the proximate cause of the loss, the explosion being a mere incident of the fire, and the insurer is liable.” Evansville Brewing, 75 So. at 198. In Evansville Brewing, we contemplated a chain of events where one peril directly led to a subsequent peril. In finding that coverage existed under the policy, we drew the distinction between a covered peril setting into motion an uncovered peril and an uncovered peril setting into motion a covered peril. Coverage exists for the former but not the latter.

The EPC was explained by the California Supreme Court¹ in Sabella, where it reasoned, “ ‘in determining whether a loss is within an exception in a policy, where there is a concurrence of different causes, the efficient cause — the one that sets others in motion — is the cause to which the loss is to be attributed, though the other causes may follow it, and operate more immediately in producing the disaster.’ ” Sabella, 377 P.2d at 895 (quoting 6 George J. Couch, Cyclopedia of Insurance Law § 1466, at 5303-04 (1930)). The California Supreme Court thus reasoned that a covered peril that convenes with an uncovered peril may still provide for coverage under a policy when the covered peril triggered the events that eventually led to the loss.

Concurrent Cause Doctrine (CCD)

The CCD provides that coverage may exist where an insured risk constitutes a concurrent cause of the loss even when it is not the prime or efficient cause. See Wallach, 527 So. 2d 1386; State Farm Mut. Auto. Ins. Co. v. Partridge, 514 P.2d 123, 133 (Cal. 1973). The CCD originated with the California Supreme Court’s decision in Partridge, where the court was presented with “a somewhat novel question of insurance coverage: when two negligent acts of an insured — one auto-related and the other non-auto-related — constitute concurrent causes of an accident, is the insured covered under both his homeowner’s policy and his automobile liability policy, or is coverage limited to the automobile policy?” Id. at 124-25. The insured, Wayne Partridge, owned a .357 Magnum pistol and had filed the trigger mechanism to create “hair trigger action.” Id. at 125.

Partridge was driving two friends, Vanida Neilson and Ray Albertson, in his insured Ford Bronco when he spotted a jack rabbit. In pursuit of the rabbit, he drove the Bronco off the road and hit a bump, causing the pistol to discharge. A bullet entered Neilson’s arm, penetrated her spinal cord, and left her paralyzed. Neilson filed an action against Partridge and entered into settlement discussions with State Farm. This dispute arose because the parties did not agree whether recovery was available from both the homeowner’s and automobile policies. The homeowner’s policy contained an exclusion for bodily injury arising out of the use of any motor vehicle. State Farm relied on this exclusionary language to argue that only the automobile policy provided coverage for the injuries. Specifically, State Farm argued that the language of the policies was intended to be mutually exclusive and not provide for overlapping coverage.

The California Supreme Court disagreed. First, the court noted that exclusionary clauses are more strictly construed than coverage clauses. Next, the court reasoned that an insured risk combined with an excluded risk to produce the ultimate injury and determined “that coverage under a liability insurance policy is equally available to an insured whenever an insured risk constitutes simply a concurrent proximate cause of the injuries.” Id. at 130 (applying the rationale of Brooks v. Metro. Life Ins. Co., 163 P.2d 689 (Cal. 1945)). Thus, because neither peril could have created the loss alone but instead combined to create the loss, the California Supreme Court could not identify the prime, moving, or efficient cause in order to determine coverage, and pronounced a new doctrine.

The CCD was first applied in Florida in Wallach, where the Third District considered the coverage available to the Rosenbergs after Wallach’s sea wall collapsed and led to a portion of the Rosenbergs’ sea wall crumbling. 527 So. 2d 1386.

The Rosenbergs filed suit against Wallach, claiming that he had breached his duty to maintain his premises. They also filed a claim under their all-risk homeowner’s policy, which was denied because the policy contained an exclusion for loss resulting from earth movement or water damage.  On appeal, the insurance company argued “that where concurrent causes join to produce a loss and one of the causes is a risk excluded under the policy, then no coverage is available to the insured.”

The Third District rejected that theory and adopted “what we think is a better view — that the jury may find coverage where an insured risk constitutes a concurrent cause of the loss even where ‘the insured risk [is] not . . . the prime or efficient cause of the accident.’ ” Id. at 1387 (quoting 11 Ronald A. Anderson, Couch on Insurance 2d § 44:268, at 417 (rev. ed. 1982)). Further, the Third District noted that the California Supreme Court found the efficient cause language of Sabella “to be of little assistance in cases where both causes of the harm are independent of each other.” Id. at 1388 (“We agree with the California court that the efficient cause language set forth in Sabella and cited by [Phelps] offers little analytical support where it can be said that but for the joinder of two independent causes the loss would not have occurred.” (citing Partridge, 514 P.2d at 130 n.10)). Accordingly, the Third District held that “[w]here weather perils combine with human negligence to cause a loss, it seems logical and reasonable to find the loss covered by an all-risk policy even if one of the causes is excluded from coverage.” Id. (citing Safeco Ins. Co. v. Guyton, 692 F.2d 551 (9th Cir. 1982)). Wallach has continued to be applied in Florida courts until the Second District’s decision in Sebo. We accepted jurisdiction based on the conflict between Wallach and Sebo.

After determining that there was “no dispute in this case that there was more than one cause of the loss, including defective construction, rain, and wind,” the Second District noted below that the parties had filed cross-motions for summary judgment, in which the homeowner had asserted that AHAC was required to cover all losses under the concurrent cause doctrine. Sebo, 141 So. 3d at 197.

Then, the court expressed its disagreement with Wallach’s application to cases involving multiple perils and a first-party insurance policy. Id. at 198. Relying on the California Supreme Court’s clarification in Garvey v. State Farm Fire & Cas. Co., 770 P.2d 704 (Cal. 1989), the Second District reasoned that “a covered peril can usually be found somewhere in the chain of causation, and to apply the concurrent causation analysis would effectively nullify all exclusions in an all-risk policy.” Sebo, 141 So. 3d at 201 (citing Garvey, 770 P. 2d at 705). Accordingly, the Second District reversed and remanded the case for a new trial.

To determine whether coverage exists under Sebo’s policy, we begin with the language of the policy. It is undisputed that Sebo’s all-risk policy included the following exclusion:The following exclusions apply to the Part II-PROPERTY section of your policy. . . .

8. Faulty, Inadequate or Defective Planning We do not cover any loss caused by faulty, inadequate or defective:
9. Planning, zoning, development, surveying, siting;
10. Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction;
11. Materials used in repair, construction, renovation or remodeling; or
12. Maintenance;of part or all of any property whether on or off the residence.Policy, Part II — Property, D. Exclusions, 8., Page 8.
13.  Also, not in dispute is that the rainwater and hurricane winds combined with the defective construction to cause the damage to Sebo’s property. As in Partridge, there is no reasonable way to distinguish the proximate cause of Sebo’s property loss — the rain and construction defects acted in concert to create the destruction of Sebo’s home. As such, it would not be feasible to apply the EPC doctrine because no efficient cause can be determined. As stated in Wallach, “[w]here weather perils combine with human negligence to cause a loss, it seems logical and reasonable to find the loss covered by an all-risk policy even if one of the causes is excluded from coverage.” Wallach, 527 So. 2d at 1388. Furthermore, we disagree with the Second District’s statement that the CCD nullifies all exclusionary language and note that AHAC explicitly wrote other sections of Sebo’s policy to avoid applying the CCD. Because AHAC did not explicitly avoid applying the CCD, we find that the plain language of the policy does not preclude recovery in this case.

Last, AHAC argues that the trial court erred by prohibiting the introduction of the amount of the settlements Sebo received in connection with this case. The trial court excluded evidence of the settlements based on this Court’s decision in Saleeby v. Rocky Elson Construction, Inc., 3 So. 3d 1078 (Fla. 2009). The Second District did not rule on this issue because “it is not completely clear whether this is a valued policy law case.” Sebo, 141 So. 3d at 203. The court therefore left this question to be resolved at retrial, noting that the 2005 version of the statute applied. Id. We disagree with the trial court’s determination that Saleeby precluded AHAC from presenting the settlement amounts to offset the judgment.

Saleeby held that section 768.041, Florida Statutes, which bars disclosure to the jury of settlement or dismissal of a joint tortfeasor, and section 90.408, which bars the disclosure of evidence of an offer to compromise to prove liability, are clear and unambiguous. We held that “[n]o evidence of settlement is admissible at trial on the issue of liability.” Saleeby, 3 So. 3d at 1083. Nothing in our decision affects the ability of a trial court to consider the amount of settlements as a post-judgment offset. We remand for reconsideration of this issue.

For the foregoing reasons, we quash the Second District’s opinion below and remand for further proceedings consistent with this opinion.

¹We mention California caselaw because Florida courts have looked to California decisions on insurance matters involving the EPC.

²We note that the abrogation of the CCD was not properly before the Second District to consider. AHAC never specifically argued that the CCD should be abrogated and replaced with the EPC in Florida trial or in its brief on appeal to the Second District. In its order granting partial summary judgment for Sebo, the trial court found that “Florida recognizes the Doctrine of Concurrent Causation” and that the doctrine “applies to all-risk policies.” The trial court further found that the causes of loss “are not ‘dependent’ as that term is understood under” the doctrine. After this adverse ruling, it does not appear that AHAC raised the issue again. Likewise, the focus of AHAC’s argument on appeal to the Second District was the improper application of the CCD based on the dependent nature of the perils. Accordingly, the argument was not preserved, and the Second District improperly decided an issue that was not raised.

_________________

(POLSTON, J., dissenting.) As the majority explains in footnote 2, the issue decided by the Second District and then by this Court, whether to apply the efficient proximate cause doctrine instead of the concurring cause doctrine, was not raised by the parties before the trial court or the Second District. Accordingly, the Second District should not have decided this issue. See Pagan v. State, 29 So. 3d 938, 957 (Fla. 2009) (stating that the “purpose of an appellate brief is to present arguments in support of the points on appeal” and failing to do so will mean that such claims are “deemed to have been waived” (quoting Duest v. Dugger, 555 So. 2d 849, 852 (Fla.1990))); City of Miami v. Steckloff, 111 So. 2d 446, 447 (Fla. 1959) (“An assigned error will be deemed to have been abandoned when it is completely omitted from the [appellate] briefs.”); see also Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (“[G]enerally, if a claim is not raised in the trial court, it will not be considered on appeal.” (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999))). Therefore, I would quash and remand for the Second District to consider the issue raised by the parties, and I would not reach the merits of the issue decided by this Court.

I respectfully dissent.

Slip and fall records of one local big box store reflect that one particular store has at least 25 customers slip and fall on average each month. The number could be dramatically higher but those are the only customers that reported the incident. Some complained of physical injuries. Some customers may have been too embarrassed that they fell and never reported the fall or the circumstances surrounding the incident.

The lawyer for the customer can often find that the employees of a particular store failed to follow the safety guidelines and policies that the store had established to promote safety. Proving that the employees and supervisors all violated the written rules of daily operation is not evidence per se of a breach of the standard of care that the property owner or store operator owes to the customers.

The store has a duty to maintain the premises in a reasonably safe condition and to warn the customers of those conditions which are not open and obvious. Standing alone, proof that the employees did not follow the rules, is not a basis for a finding of fault.

In one Florida case, a customer slipped and fell on water on a rainy day at this store. It was undisputed that it was raining at the time of the fall.

The Wal-Mart safety team leader testified that shortly after the fall that the customer acknowledged, “It’s my fault. I shouldn’t have been running in the rain.” There also existed a surveillance video of the area where the fall occurred showing two fans and a large yellow warning cone marking the area of the wet floor where the fall occurred.

After 1 hour of deliberations, the jury answered the question “was there negligence on the part of WAL-MART STORES, INC. which was a legal cause of injury to the customer in the negative.

The trial judge ordered a new trial for the customer and the Defendant, Wal-Mart appealed. In the order granting the motion for new trial, the court found that “the evidence presented to the jury during trial clearly demonstrated that the customer’s injuries were the result of [Wal-Mart’s] failure to follow its own safety policies and procedures.” Thus, the trial court equated the standard of care with compliance with internal policies and procedures, effectively determining that a breach of policies and procedures is a per se breach of the standard of care.

The appellate court reversed. “[A] party’s internal rule does not itself fix the legal standard of care in a negligence action . . . .” Mayo v. Publix Super Mkts., Inc., 686 So. 2d 801, 802 (Fla. 4th DCA 1997); see also Pollock v. Fla. Dep’t of Highway Patrol, 882 So. 2d 928, 937 (Fla. 2004).

(“While a written policy or manual may be instructive in determining whether the alleged tortfeasor acted negligently in fulfilling an independently established duty of care, it does not itself establish such a legal duty vis-a-vis individual members of the public.”); Dominguez v. Publix Super Mkts., Inc., 187 So. 3d 892, 895 (Fla. 3d DCA 2016), reh’g denied (Mar. 28, 2016).

(“[I]nternal safety policies do not themselves establish the standard of care owed to the plaintiff.”); Steinberg v. Lomenick, 531 So. 2d 199, 200 (Fla. 3d DCA 1988).

“[T]he existence of an internal rule does not itself fix the standard of care.”). Internal policies and procedures may be admissible if they are relevant to the standard of care, Mayo, 686 So. 2d at 802; however, “evidence that the rule was violated is not evidence of negligence unless and until the jury finds . . . that the internal rule represents the standard of care,” Steinberg, 531 So. 2d at 201 (second emphasis added).¹ The trial court’s elevation of the alleged violation of internal policies and procedures to the status of a legal duty necessitates reversal of the order granting the customer a new trial.

There is nothing more inviting to a small child or toddler than the “kid pit” in the malls or the playground equipment in a county or city park. Certainly, there is the appearance of safety and security is equally appealing to parents.

Recently, we read in the news about the small child falling into the gorilla cage in Ohio when the safe appearing rail system was in fact an illusion of safety. Just today, the zoo made changes to the railing to prevent small children from going under the rail and from falling into the cage. There is probable litigation on the horizon for the owner or operator of the zoo.

After all the city or county government would not install or build anything that was dangerous or unsafe, right? Well, that is just not the case anymore.

In one Florida case, the father of child who was injured while playing at city park playground. He brought suit against manufacturer of jungle gym from which the child allegedly fell, alleging design defects in jungle gym.

The father’s initial complaint against the City of Hallandale Beach claiming that the City’s negligence in maintaining the park led to the child’s injuries. He also alleged that: “While on the jungle gym, [the child] fell from a short distance off the jungle gym onto the unprotected hard surface directly underneath the jungle gym,” which caused “a fractured left femur bone and multiple contusions to the left leg, restraining [the child] to a wheelchair for several months.”

The father then filed an amended complaint, adding causes of action against the company that manufactured the playground equipment asserting various theories of liability because the appellee “manufactured and designed” the jungle gym from which the child fell.

The father further alleged that “[a]t the time that the Jungle gym was sold, the product was defective and unsafe for its intended purpose because of defects in its design,” pointing specifically to “the lack of adequate handles used for grasping.” The father claimed that this defect resulted in the child’s injuries.

The manufacturer moved for summary judgment, arguing that its equipment was not the cause of the child’s injuries. In support for its argument, the manufacturer pointed to two sources of information:

(1) the deposition of the child’s nanny, the only known eyewitness to the child’s fall, who stated that the child was not on the jungle gym when he fell, but, rather, running around the park; and

(2) the appellant’s expert’s report, wherein the expert “opined [that] the reasoning behind and main contributing factor to the injury to [the child] was the failure of the City of Hallandale Beach to have the adequate amount of wood chips on the playground surface, as prescribed by industry standards.”

In response to the motion, the father submitted several affidavits, reports, and documents opposing the motion. The father submitted several affidavits, reports, and documents opposing summary judgment. The trial court granted summary judgment without stating its reasoning. The father appealed the lower court’s order granting summary judgment.

Our review of the record leads us to conclude that the father brought forth sufficient summary judgment evidence to establish a genuine issue of material fact as to the cause of the child’s injuries.

First, a police report regarding the incident indicates that the nanny made a statement to law enforcement that the child was on the jungle gym prior to his injury, which was inconsistent with her deposition testimony that the child fell while running.

“In Florida, evidence of inconsistency in testimony and documentary evidence itself creates a disputed issue of fact for the jury, which may not be resolved by the trial court adversely to the nonmoving party [on motion for summary judgment].” Gardner v. Holifield, 639 So. 2d 652, 657 (Fla. 1st DCA 1994). Therefore, the inconsistency in the statements made by the nanny must be resolved by the trier of fact.

Additionally, two medical reports¹ used to oppose summary judgment indicate that the child’s “family”² states that he fell approximately two feet, and that the child was at the park and “sustained a fall from a height of about 4 feet.”

The manufacturer’s lawyers argued that the fact that the child fell from a certain height is not relevant to his diagnosis or treatment, but we disagree. The fact that a patient fell from a height, as opposed to falling while running on the ground, is important information for purposes of medical diagnosis. Thus, the statements in the medical reports regarding falling from a height several feet off the ground are admissible as an exception to hearsay under section 90.803(4), Florida Statutes (2012). Section 90.803(4), states:

(4) Statements for purposes of medical diagnosis or treatment. — Statements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment, or made by an individual who has knowledge of the facts and is legally responsible for the person who is unable to communicate the facts, which statements describe medical history, past or present symptoms, pain, or sensations, or the inceptions or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment.

Such evidence is admissible because “[w]hen a person consults a doctor for the purpose of obtaining treatment, he or she has a strong motivation to be truthful because of the desire for effective treatment.” Charles Ehrhardt, Florida Evidence § 90.803(4), at 883 (2011 ed.).

Having identified more than one piece of summary judgment evidence which demonstrates a genuine issue of material fact as to the cause of the child’s injury, we do not discuss the other issues raised contesting the propriety of the summary judgment. We reverse the order granting summary judgment and remand the case for further proceedings.

My experience is that if you eyewitnesses to any event you will have totally different versions of what happened. Also, you will have multiple descriptions of who the aggressor was or who the wrongdoer was. There will be different clothes, hair color, size and even skin color.

Not all police officer’s misidentifications will be the basis of a successful lawsuit when it is later determined that the person arrested is not the carinal but just looks like the real suspect. Identifications made by police officers of a suspect that is arrested does not mean there was no probable cause to arrest the person. So when can you successfully sue?

The Florida Supreme court reviewed a case and held for the injured consumer. In that case, a bank employee falsely reported robbery that resulted in injuries to Rodolfo Valladares.  The story begins on the morning of July 3, 2008, when an e-mail was circulated in the Williams Island branch of Bank of America that advised staff to be on the lookout for a bank robber. The e-mail included several photos of a white male wearing a Miami Heat baseball cap, a T-shirt, and sunglasses.

At approximately 3:00 p.m. that same day, Rodolfo “Rudy” Valladares walked into his local Bank of America with the intent to cash a $100 check. Valladares, a Hispanic male, wore a loose-fitting athletic shirt, gym pants, a black Miami Heat baseball cap, and dark sunglasses.

Although sunglasses and Miami Heat attire are not at all uncommon, nor are they significantly descriptive in South Florida, Meylin Garcia, a teller, believed that Valladares, a Bank of America customer, was the bank robber depicted in the morning e-mail as soon as he entered the bank.

At the time, she did not have possession of the e-mail to compare the robber’s photos with Valladares’s appearance, and the bank had not provided copies of the photos for the tellers’ desks. As Valladares approached her desk, without any suspicious conduct, Garcia pushed the silent alarm.

Valladares reached Garcia’s desk and properly presented her with his check and driver’s license. Specifically, the check was a Bank of America check with Valladares’s name on it, for which there was absolutely no suspicion. The name on the check matched the name on his driver’s license, for which there was also no suspicion.

Yet, Garcia still failed to do anything to cancel the robbery alarm. When asked why she did not do anything to cancel the alarm after being presented with the matching check and license, Garcia testified:

I honestly thought that he was a bank robber at that moment as soon as he walked in . . . . I had it set in my mind according to the description I had seen that morning about the e-mail. As soon as Mr. Valladares walked in the bank, I saw him, and since he was wearing a Miami Heat hat, the sunglasses — I mean I saw him, and automatically I panicked, I got scared.

After accepting the license and the check, Garcia excused herself and informed Valladares that she would return shortly. Valladares had hoped to complete the transaction without delay because he had $400 worth of food in his car in preparation for a Fourth of July family barbecue the next day.

The bank manager confirmed that during the entirety of Valladares’s interaction with bank employees, he did not make any threats, present a note, make a demand, or appear in any way to be armed or have a criminal intent. She conceded that Valladares did nothing to elicit any suspicion that he intended to rob the bank or engage in any unlawful behavior. Garcia even agreed that Valladares was very nice to her during their interaction. Garcia simply attempted to insist that at no point during the incident did she doubt that Valladares was the bank robber, notwithstanding all of the facts to the contrary.

As Valladares attempted to exit the bank, he saw a team of police officers armed with heavy weapons emerging from multiple sides of the building. The team was led by Officer Sean Bergert, who was the only SWAT member among the officers present.

Upon arrival, Bergert realized the other non-SWAT officers had created a “fatal funnel,” meaning that they were taking cover behind the glass windows of the building, which provides a dangerously false sense of security. Bergert decided to take charge and had several officers line up with him to enter the bank. Notwithstanding that multiple bank employees had been presented with the valid check and matching proper license only moments earlier, Mercado and the other bank employees not only failed to take any action to intervene when the police stormed inside the bank, but Mercado even went a step further and pointed to Valladares, signaling him as the robber. Bergert instructed everyone to lie on the floor with their hands extended. Everyone in the bank, including Valladares, complied with the command.

Valladares testified that he immediately went to the floor as ordered and outstretched his hands, with his license and check still in hand. Then, a police officer placed his boot on the back of Valladares’s head, handcuffed him, and screamed at him, “Where’s the weapon?”. Valladares further testified that the police officer kicked him in the head while he was already handcuffed:

The police officer started kicking me handcuffed on the floor . … He kicked me on the side of the head. You know, they were lifting me up by my hands . . . and sticking their hands all through my shirt and everything, asking me, Why are you doing this? Why are you doing this? Where is the weapon? And I’m like, I’m not doing anything. I’m not doing anything.

The officer with an AR-15 rifle admitted that he kicked Valladares in the head. Valladares recalled, “I was in pain. I was terrified . . . I was afraid for my life. I didn’t know what they were going to do with me.”

An officer observed redness and bruising on the side of Valladares’s head and called the paramedics. The paramedics advised Valladares to go to the hospital. Alor, the assistant bank manager trainee who had spoken with corporate security, approached Valladares while he was with the paramedics and asked if he was okay. Valladares stated that Alor also admitted to him that they realized that they had the wrong person and were terribly wrong.

The customer sued the bank and alleged that the Defendant, BANK OF AMERICA, owed a duty to use reasonable care for the Plaintiff’s safety.

The Defendant, BANK OF AMERICA, breached its duty of reasonable care in one or more of the following ways:

Negligently and carelessly activating and failing to cancel the silent robbery alarm, and failing to cancel said alarm when it knew or in the exercise of reasonable care should have known that the Plaintiff was not attempting to rob the bank;

Failing to properly train its employees, including but not limited to Defendants ALOR and GARCIA, concerning the identification of suspected bank robbers, and the handling of suspected robberies that turn out to be unfounded.

Valladares did not allege negligent reporting alone. Valladares alleged negligent reporting, and separately alleged the bank’s failure to cancel the report after the bank had sufficient information to know that Valladares was not a bank robber.

Moreover, the bank cannot avoid responsibility by claiming that it does not owe a duty to its customers. We have long recognized that businesses owe a duty of reasonable care to their invitees to maintain safe conditions on business premises. Fetterman & Assocs., 137 So. 3d at 365. Specifically, businesses owe their invitees a duty of care to (1) maintain their premises in a way that ensures reasonably safe conditions, and (2) advise the invitee of any reasonably unknown hidden dangers of which the owner either knew or should have known. Id. at 365 (quoting Morales v. Weil, 44 So. 3d 173, 178 (Fla. 4th DCA 2010)).

This duty not only applies to dangerous conditions that arise and require correction, but also to taking action to mitigate or eliminate the possibility of a foreseeable risk of harm before it occurs. See Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256, 259-60 (Fla. 2002) (discussing the mode of operation theory).

One may establish foreseeability by a showing that the business had actual or constructive knowledge that a dangerous condition that is likely to cause harm exists on the premises. Hall v. Billy Jack’s, Inc., 458 So. 2d 760, 761 (Fla. 1984) (discussing foreseeability in the context of a tavern’s knowledge of a person’s inclination to be violent).

If despite knowledge or actual knowledge of a risk of danger, management still fails to take steps to avoid that danger, the business may have breached its duty and thus be required to pay damages for resulting injuries to its invitee.

In this case, the jury instructions provided that a finding of negligence against the bank was warranted if the jury found the bank to be vicariously liable for the negligent actions of its employees, and the jury did make such a finding. Additionally, our own review of the record reveals numerous wrongful actions from the time Valladares entered the bank until he was severely injured by a violent kick to the head.

However, because there was a failure to allege punitive conduct in the pleadings, improper instructions to the jury regarding punitive conduct and intentional conduct, an inconsistency in the verdict, and an inappropriate argument that an intentional act is required for a cause of action for negligent reporting, we cannot simply reinstate the jury verdict. This case must be remanded for a new trial.

We hold that negligence is a valid cause of action for injuries arising from mistaken reports to law enforcement when the conduct complained of demonstrates reckless, culpable conduct to the level of punitive damages.

The design, manufacture and the promotion of skate boards as the new “cool thing to do” had to been the idea of orthopedic surgeons around the country The statics support the notion that all skate boarders are going to be taken to the emergency rooms or orthopedic surgeons frequently. Just like the motorcyclist who gets injured or killed and were completely free of any fault in causing the collision. One of the very visible changes in our community is the “beautification of the Tampa Bay community” with the planting of shrubs, decorative palm trees, along our highways and toll roads. Certainly, a case can be made that this is being done to attract tourists to our community and have them make a return visit. The planting of these shrubs and trees creates a real hazard and danger by obstructing the vision of motorists. It is fine to plants all these trees and shrubs but the “failure to maintain the foliage” can render the city or county government liable for injuries which may be connected with impaired vision of motor vehicle operators. In one Florida case a 12-year old son and his friend were riding a motorized skateboard around the streets of the City of North Bay Village. Both boys were riding the motorized skateboard in a sitting or crouched position as they approached the intersection in question, which was controlled by stop signs. Each boy claims to have stopped before entering the intersection. A truck driven by Dario Nanni arrived at the intersection along the adjacent street. He also claims to have stopped before entering the intersection. Between the two streets lies the City’s foliage-planted intersection “bulb-outs” and property owner / hedges. A “bulb-out” is defined as a curb extension or planted area that extends parallel to the sidewalk into the street following the curve of an intersection corner. In addition, there were hedges growing in the area which were on the property owner’s property that abuts the “bulb-out.”  The truck struck the 12 year old boy, seriously injured when struck by the truck. The impact caused this child horrendous injuries. The driver contended he did nothing wrong since he never saw the boys because of the trees and shrubs. The trial court agreed and tossed out the case on summary judgment. The good news is that the Appellate Court reversed and sent the case back for jury trial on several issues.  1) whether the foliage growing in the bulb-outs was negligently maintained by the City such that, at the time of the accident, the vegetation was so high or overgrown as to obscure visual observation of traffic approaching the intersection; 2) whether the vegetation in the bulb-outs at the time of the accident presented a hidden danger to motorists of which the City knew or should have known and failed to provide warning; 3) whether the intersection’s condition at the time of the accident was a cause of the accident; 4) whether the property owner’s hedges at the time of the accident were subject to and violated City ordinance regarding vegetation heights. Finally, there may be comparative fault issues to be resolved where the facts indicate the Plaintiff was riding a motorized skateboard, seated well below a motorist’s line-of-sight, in the middle of a public street.⁵ Issues of negligence and proximate cause are ordinarily questions for the jury if reasonable persons can arrive at different conclusions. Cassel v. Price, 396 So. 2d 258 (Fla. 1st DCA), rev. denied, 407 So.2d 1102 (Fla.1981); Seaboard Coast Line Railroad Co. v. Griffis, 381 So. 2d 1063 (Fla. 1st DCA 1979). Make sure the lawyer you hire wants to take the time to meet you at the scene, as soon as you can physically get around, to determine if there are “other responsible persons” that may have contributed to your injury. An experienced lawyer will have his or her investigator take pictures of the scene and measurements in order to determine if there have been code violations or violations of any local ordinances which may be used a evidence of negligence of one or more parties.  

Most lawyers who have actually litigated several slip and fall cases, where there is very little evidence of “how long the substance was on the floor”, will agree that a zero verdict is always a real possibility. There are no guarantees with any jury on the outcome of any case. However, asking jurors to “to infer the owner or occupier had an awareness of the need to repair a certain condition” from the expiration of the time that the condition existed”,  can be very difficult.

There is no law in Florida that requires any owner or occupier of property to “have to pay your medical expenses or anything more to you because you fell on their property.”

Constructive notice can be treacherous territory when there are no witnesses and where the injured party fails to take pictures of the “substance on the floor.” I have never had a case where an employee runs up and tells the injured client “hey” it is our fault you fell.”

Even though your lawyer can present sufficient evidence to get your case passed the defense lawyer’s motion for directed verdict made to the Judge, does not mean that the injured plaintiff is going to receive a favorable decision by a jury.

In a recent case the injured person tripped and fell over a steel re-bar protruding from the ground in a landscaped area of shopping mall parking lot where the plaintiff was going to a Dollar Store. There was evidence to suggest the landscaped area in front of the Dollar Store had become a well-trampled dirt footpath used by business invitees.

The question then is whether the Dollar Store  allowed the condition to exist for enough time to place them on constructive notice of its existence, and to preclude the Dollar Stores’ lawyers from getting a summary judgment or a finding in favor of the Defendant that there was insufficient evidence of negligence to let the jury decide the case. The trial Judge granted a summary judgment for the Dollar Store but the appellate court reversed and sent the case back for trial.

The appellate court found that a jury should determine whether a dangerous condition existed, whether it was open and obvious and whether constructive knowledge may be inferred that the dangerous condition existed for such a length of time that in the exercise of reasonable care the condition would have or should have been known to the defendant(s). See Hannewacker v. City of Jacksonville Beach, 419 So. 2d 308 (Fla. 1982) (holding that photographs may constitute tangible evidence of the scene of an accident sufficient to raise an inference as to the length of time the defect was present); Leon v. City of Miami, 312 So. 2d 518, 519 (Fla. 3d DCA 1975) (finding photos of the hazard constituted tangible evidence of the scene sufficient to raise an inference as to the length of time the defect was present, which is a jury question); Gonzalez v. Tallahassee Med. Ctr., Inc., 629 So. 2d 945, 947 (Fla. 1st DCA 1993) (“[P]roof a dangerous condition existed long enough so that it should have been discovered may be proved by circumstantial evidence); Camina v. Parliament Ins. Co., 417 So. 2d 1093 (Fla. 3d DCA 1982) (circumstantial evidence may be sufficient to show that dangerous condition existed for such length of time as to charge owner with constructive notice so as to make the issue one to be resolved by jury); Winn-Dixie Stores, Inc., 395 So. 2d at 244; Gross v. Hatmaker, 173 So. 2d 158 (Fla. 2d DCA 1965). 

If the parties responsible for maintaining the parking lot and landscaped features allowed this particular landscaped area to become a regularly used footpath in the parking lot they controlled, they then may have a duty to anticipate the harm, whether or not the artificial re-bar hazard within that location was open and obvious. See Aaron v. Palatka Mall, LLC, 908 So. 2d 574, 577 (Fla. 5th DCA 205).

The courts generally agree that the obvious danger doctrine does not apply when negligence is predicated on breach of the duty to maintain the premises in a reasonably safe condition.

Furthermore, the hazard was not a natural hazard such as a tree root, but an arguably not-so-obvious, man-made length of re-bar sticking up only a few inches from the ground.

The issue was addressed with success in the lower court but the appellate court reversed with a dissent from one of the judges in a case from the Broward County, Florida. In this case the video of the fall did not exist even though the Plaintiff requested that it be retained as evidence.

In Florida, we have a statute § 768.0755(1), Fla. Stat. (2010) which states that the injured person may prove constructive knowledge with circumstantial evidence showing:

(a) The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or

(b) The condition occurred with regularity and was therefore foreseeable.

The plaintiff’s lawyers contended that since the video did not exist, the quarterly safety reports, which were not prepared in anticipation of litigation but in the routine course of business, should be produced to the lawyers for the Plaintiff.

Plaintiffs lawyers argued that even if the quarterly reports could be considered work product, the enactment of section 768.0755, Florida Statutes, concerning premises liability for transitory foreign substances in a business establishment, should make them discoverable.

This statue was enacted at the behest of commercial interests, that statute requires an injured person to prove “that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy.

The defense argued that certainly these reports were not prepared because of some morbid curiosity about how people fall at the market.

Experience has shown all retail stores that people who fall in their stores try to be compensated for their injuries. Experience has also shown those stores that bogus or frivolous or exaggerated claims might be made. A potential defendant’s right to fully investigate and memorialize the results of the investigation should not be restricted any more than should a potential plaintiff’s.

Our system of advocacy and dispute settlement by trial mandates that each side should be able to use its sources of investigation without fear of having to disclose it all to its opponents. This allows for free discussion and communication during preparation for litigation. If all reports and other communications of the litigants were available to the opposition then those communications would certainly be stilted, unrevealing and thus self-defeating in their purpose.

Publix Super Mkts., Inc. v. Anderson, 92 So. 3d 922, 923 (Fla. 4th DCA 2012).

In this case, plaintiff has been allowed to avail herself of the ordinary tools of discovery to obtain relevant information about the incident that she was involved in, as well as any similar prior incidents on the property. Even if some of these objected-to documents may be relevant to the issue of the regularity of these occurrences, plaintiff has had the ability to obtain substantially equivalent information through discovery directed to defendants.

Those efforts have in fact enabled her to obtain a list of incidents on defendants’ premises for three years predating plaintiff’s accident, including the dates, times, locations, and a detailed description of those incidents.

Even if these documents might potentially lead to the discovery of relevant, admissible evidence as claimed by plaintiff’s counsel, their relevance is but one factor among several to be considered. The mere fact that these documents “might yield additional information about the incident is not enough, without more, to show ‘undue hardship.’ ” Mt. Sinai Med. Ctr. v. Schulte, 546 So. 2d 37, 38 (Fla. 3d DCA 1989); see generally DeBartolo-Aventura, 638 So. 2d at 989-90; State Farm Fire & Cas. Co. v. Von Hohenberg, 595 So. 2d 303, 304 (Fla. 3d DCA 1992); Dade Cnty. Pub. Health Trust v. Zaidman, 447 So. 2d 282, 283 (Fla. 3d DCA 1983); Charles W. Ehrhardt, Florida Evidence § 502.9 (2010 ed.).

Defendants have met their burden, while plaintiff has not demonstrated that she is unable to obtain the substantial equivalent of the material by other means. The assertion that plaintiff needs these materials for the prosecution of her case, without more, is wholly insufficient to meet her burden. See Healthtrust, Inc.-The Hosp. Co. v. Saunders, 651 So. 2d 188, 189 (Fla. 4th DCA 1995) (finding “respondents’ showing in support of requiring production of [work-product] was nothing more than unsworn argument of counsel or a bare assertion of need and undue hardship which is insufficient to satisfy the required showing”); Universal City Dev. Partners, Ltd. v. Pupillo, 54 So. 3d 612, 614 (Fla. 5th DCA 2011) (finding petitioner’s argument that information about prior incidents was within the scope of discovery, that such information was known to defendant but not to him, and that he was unable to obtain substantial equivalent material without undue hardship was insufficient to overcome the work product privilege).

Because the information sought by plaintiff were documents created in the course of its investigations, and because plaintiff has not made a sufficient showing of need or undue hardship, the trial court’s order compelling disclosure was a departure from the essential requirements of law. See Avante Villa at Jacksonville Beach, Inc. v. Breidert, 958 So. 2d 1031, 1032 (Fla. 1st DCA 2007).

The dissenting judge would have sustained the trial judge’s order providing the Plaintiff’s lawyers’ access to those quarterly reports.

Everyone goes to Costco or Sam’s Club to shop for those large quantities savings even two time former presidential candidate Mitt Romney. Even Mr. Romney and his family might fall victim to the absence of personnel to keep the store free and clear of hazards dropped by customers and / or employees which could cause Mr. Romney or any of his family members to slip and fall. Imagine the average Joe who incurs medical bills, lost wages, and the inability to take care of his or her family, when the large box store tells the injured consumer that it was nothing we could do to prevent this fall. The store just didn’t know about the presence of any substance that could cause you to fall.

In one Costco case,the plaintiff entered the Costco Warehouse in Miami to shop. She was in the store approximately fifteen minutes when she walked back to where the cash registers are located in order to get a cart. While passing the area in front of the registers, she slipped and fell.

Plaintiff saw nothing on the floor prior to her fall. After her fall, she observed a line of something through which a few wheel tracks and several footprints had been made. She was assisted by a Costco employee who had brought a wheelchair and helped her into it. The employee then wheeled her into the manager’s office, where she remained until an ambulance arrived to take her to the hospital.

Independent eyewitness Irma Sandoval testified in her deposition that she worked for an independent contractor at the time of plaintiff’s accident.

Sandoval was demonstrating jellybeans at a table approximately nine to thirteen feet from where the plaintiff fell.

Sandoval observed plaintiff walking approximately three or four meters away and saw her fall to the floor between the location where Sandoval was demonstrating jellybeans and the check-out aisle.

Approximately five minutes before plaintiff’s fall, Sandoval had observed water spilled on the floor from an adjacent flower display, maintained by another independent contractor. Sandoval took a paper towel and wiped up the water.

At that time, she observed the general area, including the area where the plaintiff had fallen, and it was clean and free of any foreign substances.

While Sandoval saw track marks in the line of liquid soap, she testified that the liquid soap had only been on the floor for a short time. The source of the liquid soap was a cart, which was pushed through the area just before the plaintiff’s arrival.

Immediately after the accident, Sandoval observed the cart with the leaking soap. The cart had moved only four or five meters from the scene of the accident. Immediately after plaintiff’s fall, Sandoval and Costco employees observed a thin thread of liquid soap emanating from the cart in question.

They followed the trail and found a male customer with the leaking cart half way through the aisle. One of the Costco employees then stopped the customer and cleaned up the mess.

Costco employee Angela Lawson testified in her deposition that on the day of the accident, she was on duty in the Member Service Department, located near the front entrance to the warehouse.

She was called to the office to interview the plaintiff after the fall. Immediately after the fall, she inspected the scene of the accident as part of her investigation. She testified that Sandoval was twenty-seven feet away from the plaintiff at the time of the fall.

There was a trail of liquid detergent from the laundry aisle, where the liquid detergent is displayed, running directly to the cash registers, where the cart containing the leaky bottle was located.

Lawson took photographs of the trail of detergent at the scene. The cart that was the source of that trail was still in front of the register when Lawson arrived. Lawson came to the conclusion that the detergent had been on the floor for the amount of time it took the cart to go from the laundry aisle to the register.

A hearing was held by the lower court on Costco’s Motion for Summary Judgment. The lower court found the unrefuted testimony of Sandoval and Lawson established the source of the detergent on the floor and the length of time it had been there was five minutes or less and that there was no other testimony that this was not true. The court granted Costco’s motion, and this appeal followed.

The plaintiff argues that based on circumstantial evidence, specifically, dirty footprints, track marks, and a wet substance on Costco’s floor, this case should have gone to the jury as there was a genuine issue of material fact concerning whether Costco had constructive notice of the dangerous condition. We agree.

Florida law is clear that “constructive notice may be shown by presenting evidence that the condition existed for such a length of time that, in exercise of ordinary care, the defendant should have known of the condition.’’ Burnett v. Lower Fla. Keys Health Sys., Inc., 722 So. 2d 951, 951 (Fla. 3d DCA 1998). In Altman v. Publix Supermarkets, Inc., 579 So. 2d 351 (Fla. 3d DCA 1991), the plaintiff slipped and fell at the supermarket. She testified that the floor was dirty, oily and garbage strewn. Additionally, she said that “grocery cart tracks and footprints traversed the dirty area where she fell.’’ Id. at 352. This Court held that her testimony “was sufficient evidence to present a fact question as to whether a dangerous condition was created by the store’s employees . . . and whether the dangerous condition on the floor existed for a sufficient length of time to charge the defendant with constructive notice.’’ Id.; See also Montgomery v. Florida Jitney Jungle Stores, 281 So. 2d 302 (Fla. 1973); Winn-Dixie Stores, Inc. v. Guenther, 395 So. 2d 244 (Fla. 3d DCA 1981). We find this case indistinguishable from Altman.

Costco raises two arguments worthy of discussion.

First, it argues that the undisputed evidence establishes that the liquid detergent in question could not have been on the floor for more than five minutes.

The second argument seeks to bolster the first. Costco argues that when the shopping cart containing the leaking detergent was identified, there was no pooling of liquid detergent underneath the cart. Such pooling would have been present had the cart been stationed at that location for any significant period of time. The fact that no such pooling was present, Costco posits, establishes that the cart traversed the distance between the laundry supply aisle and its ultimate resting place within a very short span of time. We disagree that this is the only interpretation possible.

Addressing the second argument first, we are unpersuaded that the absence of pooling of the liquid detergent underneath the grocery cart establishes the timing argued by Costco.

We first note that we can find no evidence in this record that there was no pooling of liquid detergent underneath the grocery cart in question.

The sole question regarding this issue was put to Ms. Lawson during her deposition as follows:

Q. Was there any large puddle of detergent under the cart when you arrived at the scene?

A. No.

(Emphasis added). The testimony was that there was no large puddle under the cart.

This does not exclude the possibility that there may have been some liquid detergent under the cart, a question that was not asked by either side.

Nevertheless, assuming for the sake of argument, that there was no pooling, an example serves to discredit Costco’s position. If the leak emanated from a hole on the bottom of the detergent bottle, the scenario proposed by Costco might be correct.

However, if the hole was on the high end of the bottle, the liquid content would spill out only until such time as the level of the liquid inside the bottle dropped below the level of the hole. This could result in only a momentary leak. On this issue, witness Angela Lawson testified in her deposition as follows:

Q. Where was the leak coming from?

A. It was coming, it was turned sideways and it was dripping from the cap from, dripping, from it being sideways it was dripping out of the cap.

Q. From a visual sight of the cap, did the cap appear to be on the bottle?

A. Yes.

Q. Did the cap appear to be opened at the time you saw it, if you recall?

A. The cap was on the laundry detergent bottle. I didn’t do any further checking of it.

Although there was no hole in the bottle, the same reasoning discussed above is still applicable. Depending on the shape of the bottle, the exact location of the cap as the bottle lay on its side and the volume of liquid contained therein, the leak may have been only momentary. Under such circumstances there would have been no pooling even if the cart had been there for a considerable period of time.

As concerns Costco’s first argument, we do not agree that the evidence in this record, when viewed in the light most favorable to the non-moving party, Kaufman v. Mutual of Omaha Ins. Co., 681 So. 2d 747, 751 (Fla. 3d DCA 1996) (“on a motion for summary judgment the record must be read in the light most favorable to the nonmoving party.’’); Delandro v. America’s Mortgage Servicing, Inc., 674 So. 2d 184, 186 (Fla. 3d DCA 1996); and Tire Kingdom, Inc. v. Waterbed City, Inc., 654 So. 2d 1005, 1006 (Fla. 3d DCA 1995), establishes that the liquid detergent could not have been on the floor for a period in excess of five minutes. When questioned on the issue of time at her deposition, Ms. Lawson testified as follows:

Q. Were you able to determine, Ms. Lawson, from your investigation how long the detergent was on the floor.

A. A specific time, no.

Q. Now you say recently. What do you base that on?

A. Because there was a floor walk done in between every hour that it’s done and had to have occurred between the floor walks.1

Q. So it could have occurred one or 59 minutes before the client fell, is that the longest time period that that, that we could give on that, hourly checks?

A. Half hour, 45 minutes.

Viewing the facts of this case in the light most favorable to the non-moving party, we conclude that there are genuine issues of material fact which should be decided by a jury. Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.