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Khorran v. Harbor Freight Tools USA, Inc.

Florida Court of Appeals, Third District

June 27, 2018

Vernal Khorran, Appellant,
v.
Harbor Freight Tools USA, Inc., Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An 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.

          Before EMAS, SCALES and LUCK, JJ.

          SCALES, J.

         In this 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 injured Khorran.

         I. FACTS

         On June 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.

         Khorran 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.

         Khorran 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.

         Harbor 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 "physical impossibility."

         In 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.

         II. ...


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