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FLORIDA LAW WEEKLY

VOLUME 47, NUMBER 15

CASES FROM THE WEEK APRIL 15, 2022

TRIAL COURT ERRED IN STRIKING PLAINTIFF’S AFFIDAVIT WHICH WAS MORE DETAILED THAN HER DEPOSITION TESTIMONY, BUT DID NOT CONTRADICT OR REPUDIATE IT — EVIDENCE IN THE RECORD SUPPORTED AN ISSUE OF FACT ON CONSTRUCTIVE NOTICE, THEREBY PROHIBITING SUMMARY JUDGMENT

Greeley v. Walmart Stores, 47 Fla. L. Weekly D799 (Fla. 2^nd DCA Apr. 6, 2022):

Plaintiff brought a slip and fall case against Walmart after she fell in a small puddle of clear liquid. No one witnessed the fall, but it was captured on surveillance video. She also took pictures of her knee immediately after the fall because it began to swell, and a Walmart employee had responded to the incident to assist her in getting up. Before leaving the store, the plaintiff filled out an incident report provided by Walmart, but refused emergency medical care.

During the plaintiff’s deposition, she testified that it was a sunny and warm day and there were no warning signs posted near where she slipped. She described the puddle as softball size and explained that she believed it was water because it was clear and had no odor. She testified she believed Walmart knew the water was on the floor before she slipped, because the manager came over and said that she “thought they had fixed it” referring to a leak in the ceiling from the air conditioning.

Walmart filed a motion for summary judgment arguing there was no genuine issue of material fact that it was entitled to judgment, because it was undisputed that Walmart did not have actual or constructive notice of the transitory substance on the floor. In response, plaintiff filed an affidavit where she explained that if she had been asked about the condition of the floor surrounding the puddle, she would have testified that it had footprints and shopping cart tracks starting at its edges, as though people walked through it. She also explained that she would have testified that the puddle was partially drying around the edges as if it had been in the middle of a larger puddle.

The trial court agreed with Walmart that the plaintiff’s statements and her affidavit contradicted her deposition testimony, and then granted summary judgment.

The appellate court reversed. While the plaintiff’s affidavit was conspicuously more detailed on the subject of the puddle’s characteristics than her deposition testimony was, that alone did not justify striking the affidavit. It also did not baldly repudiate her deposition testimony in giving answers that she did not know, when Walmart asked her whether she had reason to believe that Walmart knew there had been water on the floor before she fell. Early on in her deposition, she had answered the same question, explaining that she did believe Walmart knew because the manager said something to that effect. At worse, the court concluded the deposition was internally inconsistent and contradictory.

In negligence cases involving transitory substances, the plaintiff must prove that the business owner had actual or constructive knowledge of the transitory substance. To prove constructive knowledge, the plaintiff must prove either (a) the dangerous condition existed for a length of time that in the exercise of ordinary care that the establishment should have known of the condition; or (b) the condition occurred with regularity and was therefore foreseeable.

The plaintiff’s deposition testimony created a genuine issue of material fact regarding constructive notice. So did the plaintiff’s statements in her affidavit. The appellate court reversed the entry of summary judgment because a genuine issue of material facts did exist on plaintiff’s claim, and the further explanation from the deposition to the affidavit was not fatally contradictory.

COURT DENIED PETITION SEEKING REVIEW OF ORDER BARRING DEFENDANT’S DISCOVERY REQUESTS THAT SOUGHT TO REVEAL WHETHER THERE WERE ANY ONGOING FINANCIAL RELATIONSHIPS BETWEEN THE PLAINTIFF’S HEALTHCARE PROVIDERS AND THE PLAINTIFF’S LAW FIRM — THE DEFENDANT FAILED TO DEMONSTRATE THE LACK OF AN ADEQUATE REMEDY ON APPEAL ON THE OBJECTIONS THAT WERE SUSTAINED

Publix Supermarkets v. Molina, 47 Fla. L. Weekly D832 (Fla. 5^th DCA Apr. 8, 2022):

Publix sent plaintiff discovery requests seeking information regarding any ongoing financial relationships between the Plaintiff’s healthcare providers and the law firm representing her, and/or referral/financial relationships among the healthcare providers themselves. None of the healthcare providers objected to Publix’s discovery and none of the discovery asked whether the plaintiff had been referred for her treatment by her lawyers.

In responding to the eleven topics of testimony in the deposition notices, the plaintiff objected based on her belief that the information sought protected attorney/client privileged material.

The topics asked for the percentage of their practices that the treating physicians used LOP’s for, in the past three years, sought information about treating personal injury patients, statistics about LOP’s, the relationship with the plaintiff’s attorneys and the health care providers, etc. After a hearing, the trial court issued an unelaborated order that simply stated which objections were sustained and which were overruled.

The court refused to grant Publix’s petition for writ, finding that it failed to demonstrate irreparable harm because any error in the trial court’s discovery could be addressed on final appeal. The court also permitted certain financial relationship discovery, which did not eviscerate Publix’s defense of bias, as Publix asserted.

TRIAL COURT DID NOT ERR IN DENYING MOTION TO STRIKE PROPOSALS FOR SETTLEMENT WHICH INCLUDED LANGUAGE THAT CONDITIONED ACCEPTANCE UPON PAYMENT WITHIN RELEVANT 30-DAY SERVICE PERIOD – NOTHING ABOUT THE PROPOSAL HAD SHORTENED THE TIME PERIOD FOR ACCEPTANCE

Albert Ghazzawieh and Installation Corp. v. Iglesias, 47 Fla. L. Weekly D836 (Fla. 5^th DCA Apr. 8, 2022):

The defendant/appellant asserted that the proposal for settlement failed to strictly conform to the statute because it improperly shortened the 30-day time period for acceptance provided for in section 768.89(4) and Rule 1.442(f)(1), because it sought acceptance and payment on the same day.

The appellate court rejected that argument. A tender of payment and a written acceptance of the proposal for settlement could have been made simultaneously, thus the language conditioning the proposal upon payment of the settlement proposal within the relevant 30-day service period, did not violate the statute or rule, because the acceptance and payment could have been done simultaneously.