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LaPosa v. Wal-Mart Stores East, L.P.

United States District Court, M.D. Florida, Fort Myers Division

June 20, 2019

DEBRA LAPOSA, an individual, Plaintiff,
WAL-MART STORES EAST, L.P., a Foreign Profit Corporation, Defendant.



         This matter comes before the Court on defendant's Motion to Strike (Doc. #8) filed on March 26, 2019. No. response has been filed and the time to do so has expired. (Doc. #11.) Defendant moves to strike any references to “negligent mode of operation” in the Amended Complaint (Doc. #12). For the reasons set forth below, the Motion is granted.


         Plaintiff Debra LaPosa has brought this premises liability action against the owner and operator of a Wal-Mart store for negligence arising out of a slip and fall incident that occurred on or about August 2, 2016. (Doc. #12.) Plaintiff alleges that she slipped and fell on a “oily substance, ” sustaining serious injury. (Id.)

         The case was removed based upon diversity jurisdiction, and is currently proceeding on an Amended Complaint. Defendant moves to strike paragraph 7 of the Amended Complaint, arguing that negligent mode of operation is no longer a viable claim in Florida. The offending paragraph reads:

7. On the date of the incident, Wal-Mart Stores East, L.P., by and through its employees, servants, and/or agents could reasonably anticipate that its mode of operation for ensuring that the floor of the store was not left in a slippery and dangerous condition was not reasonable.

(Doc. #12, ¶ 7.)


         Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, a party may move to strike “any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter” within the pleadings. The court enjoys broad discretion in determining whether to grant or deny these motions to strike. Anchor Hocking Corp. v. Jacksonville Elec. Auth., 419 F.Supp. 992, 1000 (M.D. Fla. 1976). “The purpose of a motion to strike is to clean up the pleadings, streamline litigation, and avoid unnecessary forays into immaterial matters.” Hutchings v. Fed. Ins. Co., 2008 WL 4186994, *2 (M.D. Fla. Sept. 8, 2008). It is not intended to “procure the dismissal of all or part of a complaint.” Id. Likewise, a motion to strike is a drastic remedy and is disfavored by the courts. Reyher v. Trans World Airlines, 881 F.Supp. 574, 576 (M.D. Fla. 1995). Therefore, a motion to strike should be granted only if “the matter sought to be omitted has no possible relationship to the controversy, may confuse the issues, or otherwise prejudice a party.” Id.

         In evaluating a motion to strike, the Court generally applies the same test used to determine a 12(b)(6) motion, including the general rule that matters outside the pleadings are not to be considered. See Antoniou v. Thiokol Corp. Group Long Term Disability Plan, 849 F.Supp. 1531, 1533 (M.D. Fla. 1994) (“[M]atters outside the pleadings, such as affidavits or depositions must be disregarded in an analysis under a Rule 12(f) motion to strike.”).


         The mode of operation theory allows a slip-and-fall plaintiff to recover by showing that a defendant failed to exercise reasonable care in selecting a mode of operation, without showing that the defendant had actual or constructive knowledge of the dangerous condition. See Markowitz v. Helen Homes of Kendall Corp., 826 So.2d 256, 259-60 (Fla. 2002) (“[T]he mode-of-operation rule looks to a business's choice of a particular mode of operation and not events surrounding the plaintiff's accident.”). In Markowitz, the court recognized that the duty of premises owners to maintain their premises in a safe condition was not limited to simply detecting the dangerous conditions as they occur, but businesses were under a duty to take actions to “reduce, minimize, or eliminate foreseeable risks before they manifest themselves. . . .” Id. at 259. At the time Markowitz was decided, the slip and fall statute in effect explicitly mentioned mode of operation, providing that:

(1) The person or entity in possession or control of business premises owes a duty of reasonable care to maintain the premises in a reasonably safe condition for the safety of business invitees on the premises, which includes reasonable efforts to keep the premises free from transitory foreign objects or substances that might for eseeably give rise to loss, injury, or damage.
(2) In any civil action for negligence involving loss, injury, or damage to a business invitee as a result of a transitory foreign object or substance on business premises, the claimant shall ...

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