Jane Doe v. Retail Store (Palm Beach County)

Greenberg, Marc M.; Weinger, Daniel S.

Summary Judgment

Senior Partner Marc Greenberg, Esq., and Appellate Partner Daniel Weinger, Esq., obtained Summary Judgment in the Trip and Fall matter styled Jane Doe v. Retail Store (Palm Beach County). Plaintiff arrived on Defendant’s premises for the purpose of shopping. She exited her vehicle with a garbage bag and intended to throw the garbage into a garbage can situated in the parking lot. Instead of staying in the parking lot to throw her garbage away, Plaintiff took a quicker route through landscaping. While doing so, Plaintiff tripped and fell into a large hole. The fall resulted in multiple surgeries and medical bills in excess of $300,000. The Defendant moved for summary judgment on the grounds that a landowner owes no duty of care to maintain or to warn an invitee of the presence of landscaping features, including holes within landscaping. Plaintiff’s reduced demand prior to the hearing was $300,000. 

Palm Beach County Circuit Court Judge John Kastrenakes granted the Defendant’s Motion for Final Summary Judgment and held that “Florida Courts have held that Landscaping features, such as the case at bar, are generally found not to constitute a dangerous condition as a Matter of Law.” See also K.G. v. Winter Springs Cmty. Evangelical Church, 509 So.2d 384 (Fla. 5th DCA 1987); see also Dampier v. Morgan Tire & Auto, LLC, 82 So.3d 204 (Fla. 5th DCA 2012). In Dampier, the Court held that “… a raised landscape planting bed, and tree stump therein, did not constitute a dangerous condition that could give rise to liability or a duty to warn on the part of the premises owner when business invitee tripped and fell when cutting across planting bed on his way to parking lot from a public sidewalk.” Id. at 204. Defendant’s Motion to Tax Costs is pending. Read more

Jane Doe v. Retail Store (Broward County)

Dismissal

Senior Partner Marc Greenberg, Esq., obtained a dismissal in the matter styled Jane Doe v. Retail Store (Broward County). Plaintiff filed a lawsuit arising out of a slip and fall incident that occurred inside of Defendant’s Premise in Pembroke Pines. Plaintiff alleged substantial injuries but never conveyed any settlement demand to the Defendant. After engaging in aggressive discovery, Plaintiff’s Counsel withdrew from the case and Plaintiff proceeded pro se. Plaintiff was instructed by Broward County Circuit Court Judge Michael Robinson to file pleadings by a date certain. Once that date expired, the Defense filed a dispositive motion. Judge Robinson held as a matter of law that Plaintiff displayed a contumacious disregard of a prior court order and dismissed the matter. Read more

John and Jane Doe v. Retail Store (Indian River County) and Store Employee

Dismissal

Danny Laurent and Adolfo Gonzalez Rossell v. Citizens Property Insurance Corporation

Final Summary Judgment

Miami Junior Partner Cristina Sevilla was successful in securing final summary judgment in a first-party property matter styled Danny Laurent and Adolfo Gonzalez Rossell v. Citizens Property Insurance Corporation. Plaintiffs, represented by Marin, Eljaiek, Lopez & Martinez, P.L., made a claim against Defendant for loss to their property caused by a roof leak reported to have occurred on July 26, 2019. Following the denial of their claim, Plaintiffs filed suit against Defendant alleging it breached the policy of insurance by failing to provide coverage for the loss. After Plaintiffs’ deposition testimony revealed the claimed damages stemmed from a roof leak that occurred in June 2018, not July 26, 2019 as reported, Defendant moved for final summary judgment on the grounds that the loss occurred outside of the effective term of the policy. In response, Plaintiffs relied on the affidavit of professional engineer Grant Renne, who opined that the alleged property damage was the result of a storm event that occurred on July 26, 2019. The trial court granted summary judgment in favor of Defendant after finding that the opinions set forth in Mr. Renne’s affidavit were blatantly contradicted by the record and insufficient to create a genuine issue of material fact. Read more

Creative Investors Inc., Michael Faucher and Gisele Faucher v. Citizens Property Insurance Corporation

Final Summary Judgment

Miami Junior Partner Cristina Sevilla successfully secured final summary judgment in a first-party property matter styled Creative Investors Inc., Michael Faucher and Gisele Faucher v. Citizens Property Insurance Corporation. Plaintiffs, represented by Moises Gross, PLLC, alleged the insurance proceeds issued by Defendant were insufficient to repair the damage sustained to their property caused by vandalism. Prior to the filing of their lawsuit, Plaintiffs lost title to the insured property in a foreclosure action brought by the superior mortgagee. Discovery revealed Plaintiffs made only minimal repairs prior to losing the property and failed to maintain any records evidencing the repairs made or expenses incurred. Defendant moved for final summary judgment on the grounds that Plaintiffs were unable to prove damages beyond the payment issued by Defendant. Plaintiffs failed to submit any summary judgment evidence to overcome this argument and the trial court granted final summary judgment in favor of Defendant, finding that Plaintiffs’ claim for damages was factually unsupported. Read more

Atkinson v. Defendant Retail Store

Miller III, Dorsey C.; Weinger, Daniel S.

Final Summary Judgment

Fort Lauderdale Managing Partner Dorsey Miller, Esq., and Appellate Partner Dan Weinger, Esq., recently obtained an order entering final summary judgment in the slip and fall matter styled Atkinson v. Defendant Retail Store. Plaintiff demanded $1,000,000 and claimed over $182,000 in medical bills. The Plaintiff went shopping at Defendant Retail Store in Lantana, Florida on May 19, 2017. She claimed that she slipped, but did not fall, on fluid that was on the ground as she was making her way to the register to pay. Another unidentified customer had just walked away from the location of Plaintiff’s slip before it occurred. After slipping, Plaintiff did not immediately look down, but after a relatively short amount of time, she went back to the spot and noticed a “brownish and yellow” liquid substance on the ground. She identified the liquid as “some sort of oil substance” because she could see a mark from shopping cart wheels, but believes that mark was from her own shopping cart. She did not know how long the substance was on the ground or how it got there. Plaintiff also testified that she did not notice anything nearby that could have caused the spill and did not witness anyone drop or spill anything before she slipped. She further conceded that there were no footprints anywhere near the condition. The trial court found that the Plaintiff had failed to establish either actual or constructive notice of the alleged condition and entered summary judgment accordingly.

Shettle, Jessalea M.; Weinger, Daniel S.

Summary Judgment

Michelle A. Stone, P.A. (Michelle Stone)

Key West Managing Partner Jessalea Shettle, Esq. and Appellate Partner Daniel Weinger, Esq. obtained Summary Judgment in a premise liability case entitled Barbara Cardenas  v. Defendant Retail Store in Duval County, Florida. Plaintiff filed suit alleging that the Defendant breached its duty to the Plaintiff by negligently allowing a bag of ice to remain on the floor and melt, causing a dangerous condition, and failing to warn the Plaintiff of the resulting dangerous condition. As a result of the incident, the Plaintiff was claiming a myriad of injuries, including two cervical fusion surgeries, and pain management procedures of the cervical and lumbar spine. In addition, the Plaintiff was claiming post concussive headaches. Plaintiff had over $539,000.00 in claimed medical bills as a result of the fall. At the hearing, Ms. Shettle convinced the Court, using the CCTV footage, and memorandum of relevant case law written by Dan Weinger, that the entirety of Plaintiff’s account of the incident was false, and that there was no notice of any dangerous condition to Walmart. The Court ruled, as a matter of law, that the Defendant was not liable for any injuries allegedly suffered by Plaintiff. A proposal for settlement was filed early in this case, which has allowed the client the opportunity to recover most of the defense fees and costs in this matter. Read more

Dismissal of UM Carrier

Stuart Senior Partner Chris Moore, Esq., obtained a dismissal of the UM carrier in the matter styled UM Claimant v. Co-defendant Alleged Tortfeasor and UM Carrier (Client). Plaintiff filed a suit for UM benefits arising out of an alleged red light violation turn accident against an out of country alleged tortfeasor. Our UM carrier client was served and we were able to locate the alleged tortfeasor in Canada and discovered they had significant liability limits. We obtained a dismissal of the UM carrier without payment of any settlement funds. Read more

Affirmed Dismissal

Senior Partner Chris Moore, Esq., and Appellate Partner Daniel Weinger, Esq., obtained a good result in a vehicular liability matter when the appellate court affirmed dismissal in the matter styled BI claimant v. Client. Plaintiff filed suit against a driver and his employer alleging personal injuries, including epidural injections and a multi-level lumbar fusion surgery that Plaintiff alleged arose from a rear-end car accident. Shortly after filing suit, Plaintiff dismissed the driver voluntarily, electing to only pursue the employer and then deposing the employee driver while he was not a party to the case and was not represented by an attorney. Many months later, after discovery was completed and the case set for trial, Plaintiff amended their complaint to bring the driver back into the case. We were retained to represent the driver and immediately filed a motion to dismiss based on the statute of limitations, which expired before he was added back into the case. In response, Plaintiff argued that the relation back doctrine applied. Following full briefing and a thorough argument at a hearing, we fully briefed the trial court on the applicable law and facts and the trial judge granted our motion to dismiss. Plaintiff appealed and the appellate court affirmed the dismissal. Read more

Dismissal with Prejudice

Fort Lauderdale Managing Partner, William Peterfriend, Esq., and Boca Raton Junior Partner, Erin O’Connell, Esq., obtained a Dismissal with Prejudice following a hearing on Defendants’ Motion to Strike Pleadings. In the matter styled George Acevedo v. Fitzgerald Auto Sales and Celia T. Fitzgerald, Plaintiff, George Acevedo, claimed damages stemming from a motor vehicle accident and alleging negligence against the driver, Celia Fitzgerald, and vicarious liability against Fitzgerald Auto Sales. Plaintiff claimed injuries to his neck, low back and left shoulder as a result, and initially demanded $250,000. 

Defendants’ sought to have Plaintiff examined by their expert through a Compulsory Medical Examination, which was mutually coordinated and scheduled with Plaintiff and his attorney. After Plaintiff’s failure to appear, Defendants’ obtained an Order on their Motion to Secure a Compulsory Medical Examination. Defendants diligently documented all communications with Plaintiff’s counsel in attempting to set and hold the CME, yet, once again, Plaintiff failed to make himself available for examination. As it was apparent that Plaintiff refused to cooperate in litigation, Defendants filed their Motion to Strike Pleadings. On June 17, 2021, the Honorable Judge Kastrenakes entered an Order Granting Defendants’ Motion to Strike Pleadings, striking Plaintiff’s Complaint, and Dismissing the Case With Prejudice due to multiple intentional and willful violations of Court Orders directing compliance with discovery obligations by the Plaintiff. Read more.

Dismissal with Prejudice

Summary Judgment

Miami Junior Partner Anthony Perez, Esq., obtained summary judgment in the matter styled John and Suzanne Akucewicz v. Citizens Property Insurance Corporation. The Plaintiff filed suit claiming damage to their property from a sudden and accidental discharge of water from within a plumbing system. Mr. Perez argued that there was no evidence of any damage to the property resulting from the reported plumbing discharge, and to the extent there could have been any damage, our client was entitled to a presumption of prejudice which the Plaintiff failed to rebut. The Court agreed, finding a lack of evidence to support Plaintiffs’ claim, and a presumption of prejudice that Plaintiffs failed to overcome. Read more

Shettle, Jessalea M.; Weinger, Daniel S.

Summary Judgment

Key West Managing Partner Jessalea M. Shettle, Esq., and Appellate Partner Daniel Weinger, Esq., obtained Summary Judgment in a premise liability case entitled Robert Fugate v. Defendant Retail Store in Duval County, Florida. Plaintiff filed suit alleging that the Defendant breached its duty to the Plaintiff by failing to properly maintain the automatic doors at the entrance of the store, and failing to warn the Plaintiff of the resulting dangerous condition. As a result of the incident, the Plaintiff was claiming a lumbar surgery, shoulder/arm injury, and foot injury. At the hearing, Ms. Shettle convinced the Court, using the CCTV footage, and memorandum of relevant case law written by Dan Weinger, that the subject door was in proper working order, was open and obvious, was not an inherently dangerous condition, and that the Plaintiff assumed the risk of utilizing same. The Court ruled, as a matter of law, that the Defendant was not liable for any injuries allegedly suffered by Plaintiff. A proposal for settlement was filed in this case, which has allowed the client the opportunity to recover some of the defense costs in this matter. Read more.

Bryant, Audra M; Petrillo, Anthony J.

The Foote Law Firm (John H. Foote)

Defense Verdict

Tallahassee, Defense Verdict, $500,00 sought. Plaintiff was seeking to recover approx. $500,000 in damages at trial however the jury rendered a defense verdict of no liability. Defendant had a proposal for settlement and is moving for attorney’s fees and costs.

Managing Partners, Anthony J. Petrillo, Esq., and Audra M. Bryant, Esq., obtained a defense verdict of no liability in a slip and fall matter styled Cindy Dougherty v. Defendant Retail Store on July 13, 2021. The plaintiff was seeking to recover approximately $500,000 in damages at trial.

This case arises out of an incident occurring on August 20, 2014 at a retail store in Tallahassee, Florida. On that date, while inside the store obtaining her items, the Plaintiff slipped and fell on an oily substance on the floor. The Plaintiff alleged that the Defendant negligently maintained its premises by allowing an oily substance to accumulate on the floor.

The Plaintiff claimed that she sustained injuries to her hip, shoulder, feet and back resulting in over $200,000 in past medical expenses. The majority of her past economic damages were related to a hip and a shoulder surgery.

The Plaintiff’s theory of liability was that the retail store had actual notice of the condition as it failed to repair a forklift that leaked hydraulic fluid. The Defendant was able to easily disprove this theory and demonstrate that it was pursued with the flimsiest of evidence.

The Defendant moved for directed verdict on causation as to the plaintiff’s hip and shoulder surgeries and for directed verdict on future economic damages. After vigorous argument, the Defendant prevailed on both motions. Resultantly, the Defendant successfully limited the plaintiff to boardable past medical expenses of $18,700 and prohibited the plaintiff’s recovery of any future economic damages. The Defendant also moved for directed verdict on liability and the Court took the motion under advisement. Notably, the Court strongly indicated that the motion for directed verdict on liability would be granted, however, the Court wanted to first obtain the jury’s verdict.

After deliberating for less than 2 hours, the jury sided with the Defendant and rendered a defense verdict. The Defendant previously served a proposal for settlement that was rejected by the Plaintiff. Accordingly, the Defendant will be filing a motion to recover its attorney’s fees and costs. Read more

Nursing Home | ALF; Appeals | Litigation Support

Favorable Appeal

Favorable appeal of denial of Motion to Dismiss our request for arbitration pursuant to contract in nursing home/assisted living facility negligence matter. 

Order of Dismissal

In the matter of Janie Williams v. Defendant Retail Store, Plaintiff appealed an Order granting the Defendant’s Motion for Final Summary Judgment in a false arrest matter. The Plaintiff’s counsel subsequently withdrew as appellate counsel and the First DCA dismissed the Appeal with prejudice after giving Plaintiff numerous chances to retain counsel and to file her initial brief. 

Dick v. Pilot Travel Centers LLC

Dismissal with Prejudice 

In the matter of Dick v. Pilot Travel Center’s LLC ,  Plaintiff alleged he slipped and fell on the floor of a bathroom causing him to fracture his ankle and develop Complex Regional Pain Syndrome\Reflex Sympathetic Dystrophy Syndrome. The Plaintiff underwent an ankle surgery and two spinal surgeries, including the installation of a pain chip implant.  Plaintiff also applied for and was granted permanent social security disability benefits. Plaintiff’s past medical bills were over $220,000.00 and the Plaintiff claimed $120,000.00 a year for past and future earnings. Plaintiff’s initial demand was for one million dollars. The Plaintiff was also represented by two sets of attorneys who later withdrew as counsel. Despite being granted numerous extensions to retain counsel (over 7 months), the Plaintiff was unable to do so and was thus proceeding pro se.  Noting prior instances of non-compliance with discovery and court orders, we filed a Motion to Dismiss the Case with Prejudice for Plaintiff’s failure to Comply with the Court’s Pre-Trial Order. The Motion was heard and granted at the Pre-Trial Conference. 

Shawn Thomas  v. Defendant Store 

Discrimination Claim - Final Summary Judgment

Alec Masson Esq. obtained a final summary judgement in the United States District Court for the Northern District of Florida in matter styled Shawn Thomas  v. Defendant Store in favor of the Defendant Store. The Plaintiff, a member of a constitutionally protected minority class, worked as a contractor and had bought supplies at Defendant Store for years. But, he was ultimately trespassed after shortly after some alleged inappropriate behavior towards store employees. Plaintiff sought relief under 42 U.S.C. § 1981, asserting that his trespass was due to racial discrimination. The Defendant prevailed via summary judgment by establishing that the Plaintiff could not meet his burden of proof that race was a motivating factor for the Defendant’s trespass, and, by also conclusively establishing that there were nondiscriminatory reason for having the Plaintiff trespassed. Read more

Vena Williams v. Defendant Store

Dismissal With Prejudice

In the Matter of Vena Williams v. Defendant Store, Plaintiff claimed she slipped and fell in the store causing her to sustain personal injuries that  included severe head trauma. Tallahassee Senior Associate Alec Masson Esq.  filed a Motion for Summary Judgment  and sought related sanctions primarily arguing that: (1) that there was no evidence of actual or constructive notice of any substance on the part of the Defendant and (2) the evidence conclusively established that the Plaintiff’s fall was caused by an epileptic seizure event.  As a result, Plaintiff filed a dismissal of the suit with prejudice. Read more.

Lisa Dees v. Gulf Winds Federal Credit Union

Masson, Alec G.; Gorday, Thomas Gary G.

Final Summary Judgment

Pensacola Partner Gary Gorday, Esq., and Attorney Alec Masson Esq., prevailed in Final Summary Judgment in a slip and fall matter styled Lisa Dees v. Gulf Winds Federal Credit Union. The motion was prepared by Alec Masson and Dale Paleschic and argued by Thomas “Gary” Gorday. This matter involved a slip and fall in the interior entrance way of a credit union. It had recently been raining outside and Plaintiff conceded that she walked through the wet parking lot and side walk on her way into the credit union. The Defendant argued that it owed no duty to warn the Plaintiff of the natural accumulation of water in the entrance way as Plaintiff’s knowledge of the condition was equal and/or superior to that of the Defendant.  In the alternative, Defendant argued that if it owed a duty to warn under the facts, it satisfied its duty by placing a wet caution cone in the entryway. With respect to the duty to maintain, the Defendant argued that the normal accumulation of rain water in an entry way was not an unreasonable hazard and therefore imposed no duty to maintain. Alternatively, Defendant argued that the condition was so “open and obvious”  that the duty to maintain, if any, was discharged. The Court granted Defendant’s Motion for Final Summary Judgment as to all arguments. Read more.