final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 14-10561 Eric William Hendon, Judge.
Billera Law (Boca Raton); The Powell Law Firm, P.A., and
Brett C. Powell, for appellant.
Kubicki Draper, and G. William Bissett, Jr. and Caryn L.
Bellus, for appellee.
EMAS, SCALES and LUCK, JJ.
personal injury action, Vernal Khorran, the plaintiff below,
appeals a final summary judgment entered against him. We
reverse because genuine issues of material fact exist as to
whether Harbor Freight Tools USA, Inc., the defendant below,
either (i) had actual or constructive knowledge of a
dangerous condition on its premises that injured Khorran; or
(ii) created a dangerous condition on its premises through
its mode of operation in stacking the item that allegedly
23, 2010, Khorran was shopping at a Harbor Freight store in
Miami. According to Khorran, while he was perusing the
shelves in a store aisle, a large metal object fell off an
upper aisle shelf and struck Khorran from behind, injuring
his knee. Apparently, Khorran was facing a wall of shelves
when an item on one of the shelves behind him fell and
somehow struck him.
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 traverse.
testified at his deposition that he did not see the object on
the aisle shelf before the incident. Nor did Khorran see the
object on the ground after it hit him. Khorran testified,
however, that he saw the object in his peripheral vision as
it was falling. Khorran also testified that while he was
being attended to after the incident, a store employee showed
Khorran 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.
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 [Khorran] and that it had been
dangerously stacked, [Khorran] . . . adduced 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 Khorran's version of events was a
response, Khorran filed his own expert affidavit, which
opined that Khorran's version of events was
"reasonable." In his response, Khorran 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. Khorran timely appealed the trial
court's summary judgment for Harbor Freight.