August 10, 2018

Contact:Eric W. Boyer, Esq.
Managing Partner
305.670.1101 Ext. 1023


Premises Liability Defense

David M. Tarlow

David M. Tarlow

MIAMI ―  David M. TarlowManaging Partner of the Fort Lauderdale office of Quintairos, Prieto, Wood & Boyer, P.A., secured a Final Judgment based on the granting of a Summary Judgment in a slip and fall case in front of Judge Echarte in Miami.
Plaintiff was a sympathetic and likeable 76-year-old woman shopping at a Walgreens store with her adult special-needs daughter when she slipped and fell.  As a result of the fall, she landed onto her face causing a laceration to her cornea, cervical herniations from C2/3 through C6/7; lumbar herniations from L2/3 through L5/S1; and a high grade articular tear of the supraspinatus tendon in Plaintiff’s left shoulder.  Plaintiff underwent cervical and lumbar injections, and was recommended for a three-level cervical fusion, discectomy and fusion in her lumbar spine, and arthroscopic surgery on her left shoulder.
In her Complaint, the Plaintiff alleged she slipped and fell on “food, trash, and/or a sticky foreign substance.”  In deposition, Plaintiff testified that she slipped on trash dropped to the floor by another customer.  Plaintiff also testified that the floor was dirty and that the store manager, when he responded to the incident, made an admission he knew the floor was dirty and had asked another employee to clean, but that the employee had not done so.  Plaintiff further argued the store violated its own internal policies and procedures by failing to photograph the area where Plaintiff fell.
The incident was, however, captured on store surveillance video, and although the image was grainy, it appeared to show that Plaintiff tripped over her own feet.  There also did not appear to be any trash on the floor.
Based on the apparent contradiction between the deposition testimony and the surveillance video, a Motion to Dismiss (MTD) for Fraud on the Court and a Motion for Summary Judgment (MSJ) were filed arguing that either (1) the store video contradicted Plaintiff’s account of the incident and that Plaintiff’s testimony should not be relied upon to raise a genuine issue of material fact or, (2) in the alternative, if Plaintiff slipped and fell in trash, then Plaintiff had failed to establish actual or constructive knowledge under 768.0755 since she could not establish when or how the trash came to be on the floor.
In response to the Motion for Summary Judgment, Plaintiff argued that based on her deposition testimony, several issues of material fact were contested: dirt on the floor, trash on the floor, the store manager’s alleged admission about failing to clean a dirty floor which prevented the Court from granting Summary Judgment.   In her response to the Motion to Dismiss for Fraud, Plaintiff argued that any contradictions between the store surveillance video and her deposition testimony should be “forgiven” since Plaintiff was elderly and claimed to have memory issues resulting from the fall and there was no organized scheme to defraud the court with her testimony.
At the hearing, the defense argued there was a contradiction between Plaintiff’s Responses to the MSJ and MTD because Plaintiff argued that her deposition testimony should be credited when considering summary judgment but should be dismissed as merely inaccurate and unreliable and not deceptive when considering the motion for fraud.  The Court granted the Motion for Summary Judgment finding Plaintiff did not fall as a result of a foreign transitory substance being on the floor.  A Proposal for Settlement was rejected by Plaintiff and she is now subject to a judgment for attorneys’ fees and costs.

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About QPWB
David M. Tarlow is the managing partner of the Fort Lauderdale office. He is an expert in civil litigation and is Board Certified in Civil Trial Law by the Florida Bar Board of Legal Education and Specialization.  His practice includes all aspects of insurance and general liability defense, product liability, wrongful death, personal injury defense, premise liability, automobile liability, negligent security, legal malpractice, and insurance coverage disputes and bad faith litigation.
Quintairos, Prieto, Wood & Boyer, P.A., is the largest minority and women owned law firm in the nation with more than 370 lawyers serving clients from 21 offices in the United States and abroad across a spectrum of industries in over 40 areas of practice. Our lawyers provide representation in litigation, business, real estate and governmental law.

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