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Portuondo v. Wal-Mart Stores East, LP

United States District Court, S.D. Florida, Miami Division

February 16, 2018

MARIA PORTUONDO, Plaintiff,
v.
WAL-MART STORES EAST, LP, Defendant.

          ORDER ADOPTING IN PART REPORT AND RECOMMENDATION AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          FEDERICO A. MORENO, UNITED STATES DISTRICT JUDGE.

         This 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 summary judgment.

         THIS 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.

         THE 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 is

         ADJUDGED that the Defendant's motion for summary judgment is GRANTED.

         I. Background

         Plaintiff, 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 walking.

         Magistrate 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 back."[1]

         II. Standard

         Summary 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. 242, 254(1986).

         III. Analysis

         Florida 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).

         In 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 1133.

         Similarly 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 ...


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