United States District Court, S.D. Florida, Miami Division
ORDER ADOPTING IN PART REPORT AND RECOMMENDATION AND
GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
FEDERICO A. MORENO, UNITED STATES DISTRICT JUDGE.
case stems from a trip and fall on an empty water pallet at a
Wal-Mart store. The condition is open and obvious under
Florida law and not inherently dangerous, obviating
Defendant's need to warn the Plaintiff. The Plaintiff had
just stepped past the empty water pallet on the ground, which
she admits to seeing, when an employee told her to
"stop, go back, " or to "stop, back up."
That is when she walked backward without looking, she
tripped, and fell on the empty water pallet. The Court finds
that Plaintiffs failure to exercise reasonable care led to
her fall. The employee could not reasonably have anticipated
that Plaintiff would trip over the pallet she had observed
and safely walked around seconds before the fall.
Accordingly, the Court grants the Defendant's motion for
CAUSE came before the Court upon the Defendant's Motion
for Summary Judgment (D.E. 40), filed on November 3,
2016, the Report and Recommendations (D.E. 43) filed
on December 20, 2017, and the Objections to
the Report and Recommendation (D.E. 45) filed on
January 2, 2018.
COURT has considered the motion, the response, the report and
recommendation, oral argument, the pertinent portions of the
record, and being otherwise fully advised in the premises, it
that the Defendant's motion for summary judgment is
Maria Portuondo, is suing for a trip and fall over an empty
pallet in the water aisle of Defendant's Wal-Mart store.
Plaintiff testified she saw the pallet and walked around it
with her cart. At the time, four employees were loading and
unloading water packages from pallets in the same aisle.
Plaintiff claims an employee yelled at her "Stop, go
back" or "Stop, back up." Plaintiff walked
backward without looking and tripped on the same empty
pallet, she had just seconds before walked past. The pallet
was not in the middle of the aisle. It is undisputed there
was space to walk around it. Two employees testified they
warned Plaintiff to stop because the machine was bringing
down another pallet from the aisle where Plaintiff was
Judge Turnoff found the empty pallet was an open and obvious
condition under Florida law and the Plaintiff did not object
to this recommendation. Defendant filed an objection to
Magistrate Judge Turnoff s recommendation that summary
judgment be denied because he found an issue of fact as to
whether the employee told Plaintiff merely to
"stop" or to "stop and go
judgment is authorized where there is no genuine issue of
material fact. Fed.R.Civ.P. 56(c). The party seeking summary
judgment bears the initial burden of demonstrating the
absence of a genuine issue of material fact. Adickes v.
S.H. Kress & Co., 398 U.S. 144, 157 (1970). The
party opposing the motion for summary judgment may not simply
rest upon mere allegations or denials of the pleadings; the
non-moving party must establish the essential elements of its
case on which it will bear the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317 (1986);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574 (1986). The nonmovant must present more than a
scintilla of evidence in support of the nonmovant's
position. A jury must be able reasonably to find for the
nonmovant. Anderson v. Liberty Lobby, Inc., Ml U.S.
tort law requires a plaintiff prove that (1) the defendant
owed plaintiff a duty, (2) the defendant breached that duty,
(3) the defendant's breach was the cause of plaintiff s
injuries, and (4) plaintiff suffered damages stemming from
the breach. Vallot v. Logan's Roadhouse, Inc.,
567 Fed.Appx. 723, 725 (11th Cir. 2014). A business owner
owes invitees two duties: (1) to warn of concealed dangers
and (2) to use ordinary care to maintain its premises in a
reasonably safe condition. Brookie v. Winn-Dixie
Stores, 213 So.3d 1129, 1131 (Fla. 1st DCA 2017). A
defendant may comply with both duties when "an open and
obvious condition does not trigger a duty to warn and the
condition itself is not inherently dangerous. Id.;
Roiz v. Wal-Mart Stores, No. 17-21491-CIV-MOORE,
D.E. 125 (S.D. Fla. Feb. 6, 2018).
Brookie, the First District Court of Appeal affirmed
the trial court's order granting summary judgment in
favor of the Defendant Winn-Dixie. In that case, the
plaintiff saw the empty pallet on the floor and tripped and
fell over it. Because the plaintiff saw the empty pallet that
was open and obvious, Defendant "could not reasonably
have anticipated that [Plaintiff] would trip over the pallet
he had previously observed and safely walked around twice
before the accident." Id., 213 So.3d at 1137.
"There are times when conditions are so common, or so
innocuous in our everyday life, that they do not impose
liability on the landowner." Id., 213 So.3d at
in Roiz, the court granted summary judgment where a
plaintiff tripped and fell over an empty pallet. Unlike this
case, the plaintiff in Roiz had not seen the pallet
before he fell. He admitted, however, that he had a clear
view of the unobstructed aisle, where the pallet was pushed
up against a steel shelf. Because the pallet was open and
obvious and not inherently dangerous, the court granted
summary judgment finding there is no duty to warn against an
open and obvious condition, which is not ...