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Maltese v. Burlington Coat Factory Direct Corp.

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

October 22, 2019

GIOVANNIA MALTESE, Plaintiff,
v.
BURLINGTON COAT FACTORY DIRECT CORPORATION, Defendant.

          ORDER [1]

          SHERIPOLSTER CHAPPELL UNITED STATES DISTRICT JUDGE

         Before 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.

         BACKGROUND[2]

         This a 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).

         The Court dismissed the original complaint. (Doc. 20). Now, Burlington moves to dismiss again. (Doc. 22).

         LEGAL STANDARD

         A 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.

         DISCUSSION

         Burlington launches three attacks on the Complaint.

         A. Failure to State a Claim

         First, 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.[3] (Doc. 21).

         Negligence 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 establishment ...

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