court-roomOn February 20, 2020, the Third District Court of Appeals reversed the grant of summary judgment in a Miami slip and fall case. In Williams v. Ryta Food Corp., 3rd District Case No. 3D19-0126, the Third District reversed Judge Abby Cynamon’s ruling in the 11th Circuit.

At the trial court level in Miami, Judge Cynamon struck a witness affidavit presented by the Plaintiff in opposition to a motion for summary judgment.  Judge Cynamon relied on a case commonly relied upon by Defendants to strike affidavits.  That case, Ellison v. Anderson, 74 So. 2d 680, 681 (Fla. 1954), contains a ruling from the Florida Supreme Court that “a party when met by a [m]otion for [s]ummary [j]udgment should not be permitted by his [or her] own affidavit, or by that of another to baldly repudiate his [or her] previous deposition so as to create a jury issue.”  Id.  And, because Judge Cynamon struck the affidavit, she found there to be no issues as to any material fact regarding actual or constructive notice.  Thus, because there was no evidence that the Defendant had actual or constructive knowledge of the purportedly dangerous condition, per Florida Statute 768.0755(1), Judge Cynamon granted Summary Judgment against the Plaintiff.

In the instant matter, the Third DCA noted that, while Ellison is the law, a “party may file a subsequent affidavit for the purpose of explaining testimony given at a prior deposition, provided the explanation is credible and not inconsistent with the previous sworn testimony”.  Ouellete v. Patel, 967 So. 2d 1078 (Fla. 2nd DCA 2007).  In the instant case, the Third DCA noted that the original witness testimony regarding the substance was that it was clear and that the witness did not know its origin.  The subsequent affidavit described the puddle of water as “very long” and noted that there were “several track marks or footprints going in both directions”.  The Third DCA pointed out that this did not baldly repudiate the prior testimony.  Rather, there were only two prior areas of inquiry and the area that the new affidavit touched upon had not been previously asked or testified to.  They also pointed out that there was a video showing that the area of the alleged substance had not been looked at for about 20 minutes.  And, in a footnote, the Third DCA mentioned that “For good reason: the judicial landscape is littered with reversals of summary judgments where Ellison has been misapplied” Id.

courtroom-300x225-300x225The Florida Courts seem determined to factually analyze every substance known to man and whether that substance and the specific condition it is in can serve as evidence of constructive notice.  Constructive notice is important in slip and fall cases these days because Florida Statute 768.0755 places the burden on the plaintiff to prove that a business establishment had constructive notice.  The only other way to have a case, per the statute, is to show that the condition occurred with regularity or that the defendant had actual knowledge of the substance.  So, in Florida, we have a body of case law that goes substance by substance and picks apart the substance from a factual basis to determine whether the person who slipped on that substance has a material issue of fact that can be presented to a jury.  This case by case analysis goes from fruit to fruit and frozen substance to frozen substance.  There seems to be no end to the various foods, chemicals, compounds, molecules, drinks, and items of all kinds that the Florida Courts will look at.

If you look at the history of the case law, there is some irony in all of this.  The Courts have ruled upon thawed ice cream (Camina v. Parliament Insurance, 417 So. 2d 1093 (3rd DCA 1982)), partially frozen peas (Teate v. Winn-Dixie, 524 SO. 2d 1060 (3rd DCA 1988)), partially liquified orange juice concentrate (Grizzard v. Colonial Stores, Inc., 330 So. 2d 768 (1st DCA 1976)), dirty water (Encarnacion v. Lifemark Hospitals of Florida, 211 So. 3d 275 (3rd DCA 2017), and other substances.  The irony is that the evaluation that they are supposed to be making is whether there is any issue as to material fact.  But, in analyzing the substances down to the molecules, most of these cases seem to make factual determinations that should be within the sole province of a jury.  It seems inconsistent to say that there must be an absence of a material issue of fact and then spend considerable time factually picking apart, analyzing, and determining that a substances specific condition does or does not tend to prove constructive notice.  Going on a case by case basis and looking at each substance and how it may or may not serve as evidence of constructive notice is no different than the job a jury, in the end, must do.

Now, recently, on February 19, 2020, the Fourth DCA ruled upon a grape.  In Oliver v. Winn-Dixie Stores, (No. 4D19-291), the 4th DCA held that a clear and dirty liquid with a red or purple speck in it that looked like it had been smeared upon the ground was not enough for Brandy Oliver to get to a jury.  They cited the absence of wheel tracks and footprints and found there to be no issue of material fact.  The 4th DCA leaned upon the testimony of an employee that he passed by the area repeatedly and that the floor was clean and dry moments before the fall.  But, apparently, there was a video that was not part of the record.  And, this video, according the Plaintiff, tended to show he was not looking carefully.  Moreover, there was no discussion whatsoever of how the condition was created.

blog6-300x300Recently, in an Orange County personal injury sexual abuse case, the Fifth District Court of Appeal ruled on issues surrounding improper closing arguments and a directed verdict.   On January 31, 2019, in the case of Jagger Ferguson v. Orange County, (Florida 5th DCA 2019) Case No. 5D18-2405, they reversed the trial court’s grant of a directed verdict in favor of the Plaintiff and the granting of a mistrial for improper closing arguments.

The case arises out of an alleged sexual abuse and resulting post-traumatic stress disorder that occurred during Mr. Ferguson’s jail tour.  He was doing a jail tour as part of a juvenile diversion program.   After a defense verdict was entered, the Trial Court entered a directed verdict against the Defendant finding that no reasonable jury could find otherwise.  And, the Trial Court granted a mistrial, ruling that Defense Counsel violated two orders on motions in limine.  The first order prevented the defendant from showing the jury an unredacted document that showed the Plaintiff was doing the jail tour as part of a diversion program.  The defense lawyer violated that order showing the unredacted document to the jury.  The second order prevented Defendant from mentioning that Plaintiff had a collateral source that may pay for any medical treatment he needed in the future.  The defense lawyer also blatantly violated that order, stating that the Plaintiff’s current employer, the United States Army, would “take care of its own”.

In reversing the grant of a directed verdict, Justice Evander, who penned the decision, reasoned that, while it was true that no reasonable jury could find that the Plaintiff was comparatively negligent, the jury could have entered the defense verdict on the basis of lack of causation.  On the issue of the mistrial and violation of the orders on motions in limine, the 5th DCA applied the standard of fundamental error because no objections were made contemporaneously with the violation of the Court orders.  Applying that standard, Justice Evander referred to the case of Murphy v. International Robotic-Systems, Inc. 766 So. 2d 1010 (Fla. 2000).   The 5th DCA held that “[a]lthough defense counsel’s aforementioned arguments were clearly improper, we cannot conclude that they were incurable or that they ‘so damaged the fairness of the trial that the public’s interests in our system of justice requires a new trial.’”  Murphy, 766 So.2d at 1031.

Revel-3Revel electric mopeds are now available for rent in a specifically designated area of Miami. There are 750 rental mopeds available in Miami and Revel has approximately 30 employees to provide service to the mopeds and for the customers. But what happens when someone is injured in a Revel moped accident? The answer is not entirely clear. That is why the Miami Revel Accident Lawyers at the Wolfson Law Firm are standing by to help any person injured in a Revel moped accident. If you were injured in a Revel electric moped accident, call the Miami car accident attorneys at the Wolfson Law Firm at (305) 285-1115 for your free consultation.

Revel Rental Mopeds Now in Miami

The list of locations, aside from Miami, that Revel rents mopeds in includes Queens and Brooklyn in New York; Oakland California; Austin Texas; and Washington DC. The mopeds provided by Revel are made by NIU Technologies which is based in China.

Miami-AMEvery year, more and more people are deciding to make the move to South Florida. The small strip of coastline positioned between a swamp and the Atlantic Ocean provides year-round summer weather and plenty of sunshine. With such a small area that millions of residents call home, space can be limited. When the demand is high and supply is limited, the prices go up. The South Florida housing market has been well known for being the most expensive in Florida overall.

Residents looking to buy property will generally have to pay a higher price tag in South Florida than they would in other parts of the state for a similar property. If we focus in on Miami and the surrounding areas, it is estimated that the median home value is around $335,000. With families or individuals looking for a home, but cannot afford the luxury of owning a home, their only option is to lease. According to reports, an estimated median for rent in Miami is around $1715 a month. The high costs are another factor, but if we combine this with the availability of space, people must find a home that is affordable and available. With most of the land in South Florida already developed, the only place to add housing is upward. That is why condominiums have become a huge factor in being able to house so many people in such a small space.

Since 2012, reports state there have been 20,000 condo units built or planned for building along the South Florida coast. Condominiums have become a staple for the surrounding areas and the availability provides an easier housing solution for individuals and small families. As attractive as they have become, deciding to live in a condominium comes with several factors. One cannot simply just rent a condo and move in. Individuals that decide to lease or purchase a condominium, must apply and be approved to live in the unit. This application and approval process comes with a fee that can differ depending on the association and property management group. This fee can encompass several services, such as background and credit screening, move in and move out charges or even a general management fee. This appears to be a normal process, but what if the fee that is being paid is not only high in price but also is against the law.

IMG_3839-e1557784756413The Florida Condominium Act was invoked to protect tenants and consumers from being charged unfairly by property management companies and associations. The act was established in 1963 and has been updated several times since then, with the latest provision being in 1992. When establishing such an Act, the intentions are to keep protections in place and provide a fair marketplace for home buyers. The issue arises when an Act is established but is not enforced. This leads to price gouging and taking advantage of unsuspecting buyers.

To own property in the South Florida housing market is not for everyone, as the price tag and median costs are above many consumers’ budgets. That is why a majority of investments in South Florida property comes from foreign individuals or out of state residents. If a consumer is not a resident of Florida, the most advantageous property to own is a beautiful condominium. These luxurious condos are coveted by the local South Floridians as well, but just because you’re from South Florida, does not mean you receive any special treatment.

When a person or family would like to lease, purchase or transfer a condominium, they must pay a fee to cover the services rendered. The fee can be stated as the move in or out costs, background checks or even simple transfer fees. Most times these typical fees range anywhere from $150 to potentially $500. A key factor to understand is that the Florida Condominium Act mandates that this said fee has a cap of $100 per person. So, if this is the case, South Floridians are left wondering why associations get away with charging higher fees that are against the current law.

19614851476_d78361b531_bIn the world of grocery store chains, there are many choices available to consumers. Although grocery stores provide the same service by selling food, what causes consumers to choose one store over another? There are many reasons, such as convenience, location, pricing, but the products offered are what distinguishes one store from another. Modern day society has grown in its awareness of nutrition and what ingredients we are feeding our bodies. With the increase in awareness, came the diversity in nutritional diets.

People have many different needs in order to satisfy their diet essentials. This could range from a strictly organic diet of ingredients harvested without pesticides and growth hormones, or even a simpler diet that does not have specific requirements. Where the problem lies, is that not all stores may offer the specific needs of all diets. Traditional grocery stores offer all essential products, but this may not cater to all consumers. That is why they have begun to offer more availability of organic products. Depending on the store, there may be more or less options for healthier food. Fresh produce is the general area of a store that will have options for regular and organic products. Although this can satisfy many consumer needs, it still would not be enough for the individuals searching for all organic products. The main difference between general grocery products and healthier options, is the pricing.

There are several stores that offer all organic options, but this comes with a higher price tag. It has become a commonality that in order to eat healthier, you will need to have a higher budget. That being the case, it may not be suitable for all consumers. This leads to people purchasing select products that are healthier, while purchasing general products to complete the remainder of their shopping list. Since not all stores offer the same availability of healthier products, consumers sometimes need to shop at different stores in order to satisfy their shopping needs. These differentiation are what inspired Lucky’s Market to be the first grocery chain to break the norm.

floor-3When it comes to home improvement and contractor supplies, the first name that comes to mind is the Home Depot. This company has dominated the market of home improvement superstores for nearly 30 years now and currently has over 2,200 locations across North America. In order to stay at the top of the market for so long, a company must make many business decisions to keep up with the times and consumer needs.

Home Depot Financials

Home Depot was founded in 1978 with its first locations being in the metro Atlanta area of Georgia. The company went public in 1981 and shortly thereafter, they began their venture outside of Georgia by opening 2 more locations in South Florida. Over the course of the next 8 years, Home Depot would increase its foothold on the home improvement market by opening more locations through acquisitions and conversions of smaller named companies in different regions of the country. By 1989 Home Depot had beat out Lowes as the largest home improvement superstore chain.

photodune-2000018-accident-report-xs-300x300As our world advances technologically, all forms of business continue to evolve in order to keep up with the changing of times. Such as food delivery services, which have become a staple for convenience in our daily lives. There was a time when it seemed the only food options for quick convenience or delivery were either pizza, Chinese take-out or fast food. Then restaurants began offering take-out services, which grew to curbside pickup, and now most of your favorite restaurants are available for delivery via the many companies that offer food delivery services for a fee. With this type of convenience society has become accustomed to, other food industries needed to find a way to provide similar options for their customers. This gave way to major grocery store chains offering online ordering with curbside pickup, and now their latest venture in convenience is grocery delivery services.

Walmart currently offers grocery delivery services for a fee with a monthly or annual membership. Their website states this service is available in select cities across 50 states. This form of convenience will continue to grow, especially with Amazon’s plan to compete with Walmart by building their own grocery stores. Amazon already has in-home delivery services for their current products and hopes to utilize the same service for their grocery stores. Walmart is set to begin their own form of in-home delivery later this year in select cities.

Amazon plans to build grocery stores with the business model of prioritizing online ordering with pickup and in-home delivery, will lead to smaller stores with larger storage facilities to accommodate customer demand. Larger storage facilities, results in more products to manage for the employees. This results in heightened attention to detail in order to avoid the risks of accidents or slip and falls. According to reports, slip and falls are the number injury sustained by employees and customers in a grocery store. This inherent risk could be multiplied with more products to manage, which could result in a greater chance for negligence. The onset of the in-home delivery venture would then carry this same risk for employees entering a customer’s home.

TextingDriver-1024x682Turo and Getaround are the latest entries into the transportation landscape of South Florida. Think of it as an “Airbnb for cars”. It is also commonly referred to as the “car sharing” industry. Unlike Uber or Lyft, which are “ride-sharing”, car sharing companies such as Getaround and Turo offer to rent you someone’s car. The car owners place their vehicle for rent by the hour or by the day or week on the car sharing company app. But as with all vehicles, especially in Florida, the question ultimately becomes who will pay for injuries and damages in an accident caused by a Turo or Getaround driver and vehicle. That is where the Florida car sharing accident lawyers at the Wolfson Law Firm can help. If you were injured in an accident involving a Turo or Getaround car, then call the Turo accident lawyers or Getaround accident attorneys at the Wolfson Law Firm at 305-285-1115 for your free consultation.

Getaround Car Accidents

In 2009, Getaround was founded in San Francisco. It was launched at the TechCrunch Disrupt in 2011. It began in Portland Oregon with the assistance of a Federal Highway Administration grant of more than $1.7 billion. As recently as April 2019, Getaround bought the carsharing company Drivy for approximately $300 million. It operates in Washington DC, Denver, Los Angeles, San Diego, Atlanta, Philadelphia, Seattle, New Jersey, San Francisco, Boston, Chicago and South Florida including Miami.

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