United States District Court, M.D. Florida, Fort Myers Division
SHERIPOLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
the Court is Defendant Burlington Coat Factory Direct
Corporation's Motion to Dismiss or Alternatively for a
More Definite Statement (Doc. 22) and Plaintiff Giovannia
Maltese's response in opposition (Doc. 24). In part, the
Court denies and grants the Motion.
slip-and-fall negligence case. (Doc. 21). Maltese went
shopping at a Burlington Coat Factory. (Doc. 21 at 1-2).
While there, Maltese slipped on a clothing tag near the
shopping carts at the front of the store. (Doc. 21 at 2-3).
The tag was “on the floor for quite some time without
being cleaned or swept up.” (Doc. 21 at 3). And
Burlington “employees routinely allowed clothing tags
to accumulate under the shopping carts without cleaning them
up.” (Doc. 21 at 3).
Court dismissed the original complaint. (Doc. 20). Now,
Burlington moves to dismiss again. (Doc. 22).
complaint must recite “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). The pleading must have
“more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
A facially plausible claim allows a “court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
launches three attacks on the Complaint.
Failure to State a Claim
Burlington argues the Complaint is still insufficient by not
providing enough factual support to state a claim. (Doc. 22
at 5-8). Maltese disagrees, pointing to various ways the
Complaint fixed deficiencies in its previous iteration. (Doc.
24). The Complaint alleges one count of state-law negligence
for business premises liability. (Doc. 21).
consists of duty, breach, causation, and damages.
E.g., Zivojinovich v. Barner, 525 F.3d
1059, 1067 (11th Cir. 2008). Businesses owe certain duties to
their customers, like a duty of care to keep premises safe.
Encarnacion v. Lifemark Hosps. of Fla., 211 So.3d
275, 277-78 (Fla. Dist. Ct. App. 2017). Yet to prove breach
of that duty, slip-and-fall plaintiffs must show the business
had “actual or constructive knowledge of the dangerous
condition.” Fla. Stat. § 768.0755(1); see
also Encarnacion, 211 So.3d at 277-78. Actual
knowledge exists when a defendant or its employees knew of or
created a dangerous condition. Palavicini v. Wal-Mart
Stores E., LP, 2019 WL 4316693, at *2 (11th Cir. Sept.
12, 2019). Plaintiffs demonstrate constructive knowledge in
one of two ways:
(a) The dangerous condition existed for such a length of time
that, in the exercise of ordinary care, the business