MOTION TO DISMISS PLAINTIFF’S COMPLAINT

MOTION TO DISMISS PLAINTIFF’S COMPLAINT

Defendant, Publix Supermarkets, Inc., acting on its own behalf and pursuant to rule 1.140, Florida Rules of Civil Procedure, respectfully requests that this Court enter an order dismissing the entirety of the Complaint brought by Plaintiff, Rachel Zane with prejudice, for the reasons stated below.

1. INTRODUCTION

The instant Complaint relates to a claim brought by the Plaintiff founded on the tort of negligence. The Plaintiff avers that the Defendant operates and manages a supermarket located at 13850 SW 8th St, Miami, FL 33184 (the “Supermarket”), which statement is not denied by the Defendant.

The Plaintiff contends that on or about August 25, 2018, she and her nine month old daughter, Kaia Zane (the “Deceased”) were lawful guests and patrons at the Supermarket as shoppers. She further states that while there, she slipped and fell on an oily substance that was spilled on the floor of the premises with glass surrounding that area, specifically, aisle 10 and landed on-top of the Deceased.  As a result of the fall, the Plaintiff sustained permanent bodily injuries to her back, arm, and ankle, and the Deceased suffered serious injuries which led to her death. Consequently, the Plaintiff has moved this Court seeking for an award of damages for the injuries alleged caused by the Defendant and for the death of the Deceased pursuant to the Florida Wrongful Death Act Statute §768.21.

The Complaint contains two counts. Under the first count, the Plaintiff alleges that the Defendant created “a dangerous and defective condition” by negligently and carelessly allowing an oily substance along with pieces of small glass to remain on the floor of the premises causing her to slip and fall on top of the Deceased. Without demonstrating any negligence on the part of the Defendant, the Plaintiff asserts that the Defendant breached its duty of care. The Defendant vehemently is a stranger to the averment that the Plaintiff and the Deceased were customers on the material day and denies breaching its duty of care over the two or at all. In count 2, the Plaintiff insists that the Defendant acted in a negligent manner causing the death of the deceased, again without putting forth any cogent proof.

As the Defendant will demonstrate shortly, the Complaint is devoid of any merit and it is based on false and conclusory allegations which cannot warrant grant of the reliefs sought. The Complaint is a feeble attempt by the Plaintiff to wrongfully attribute negligence on the Defendant and to persuade this Court to award unmerited reliefs, mainly in form of damages.

2. ARGUMENT
   • Standard of Review

The standard of review applicable on a motion to dismiss Complaints such as the one presented by the Plaintiff is now well settled. Accordingly, the Court makes an inquiry as to the sufficiency of the facts alleged by a Plaintiff in support of their complaint. Spence v. Funk, 396 A.2d 967, 968 (Del. 1978). Courts have the power to dismiss claims that are not supported by sufficient and reliable facts.  It was so held in the case of Bohannon v. Shands Teaching Hosp. and Clinics, Inc., 983 2d 717 (Fla. 1st DCA 2008), wherein the Court was emphatic on the need for a Plaintiff to set out all factual allegations in a clear and succinct manner.

Therefore, it is not sufficient for a Plaintiff to make conclusory allegations, unwarranted deductions, or mere legal conclusions without putting forth sufficient facts to warrant such conclusions.

• The Plaintiff has not established breach of duty of care by the Defendant

For any claim of negligence to be sustained, a claimant must be able to show at least three key elements, being the existence of duty of care, breach of the duty of care and damage (Statsky WP, Essentials of Torts, Delmar 2012 at page 184. Therefore, there cannot be negligence without breach of duty of care.

The main consideration, as evident from the longstanding authority of Palsgraf v Long Island Railroad Co [1928] 248 N.Y. 339, in determining the existence of duty of care is foreseeability. Thus, Courts must first ascertain if it was foreseeable that the defendant’s conduct could cause harm to the claimant; whether the claimant and the defendant’s actions were proximate; and lastly, whether it would be fair, just and in the interest of reasonableness to impose the duty of care. This is consistent with the UK-approach posited in the landmark House of Lords case of Donoghue vs. Stevenson [1932] UKHL 100 wherein it was held that a duty of care is placed upon all persons to prevent harm by taking reasonable care to desist from acts or omissions whose harmful result they can reasonably foresee.

The Plaintiff vaguely asserts that “[the Defendant] owed a duty to the Plaintiff, RACHEL ZANE, to properly maintain the subject premises in a safe condition.” While the Defendant’s duty of care over its bona fide customers is beyond dispute, the Defendant’s considered position is that the Plaintiff’s and the Deceased could not fall within the Defendant’s contemplation as they were not customers of the Supermarket as alleged. For that reason, their alleged injuries could not be reasonably foreseen by the Defendant neither are those injuries proximate to the Defendant’s Supermarket. As such, it would not be in the interests of justice for the Court to impose a duty upon the Defendant in respect of the Plaintiff and the Deceased as they were not customers of the Defendant.

Turning to the issue of breach of duty, the Plaintiff has particularized breach of duty in the following terms:

1. The Defendant created a dangerous and defective condition by negligently and carelessly allowing an oily substance along with pieces of small glass to remain on the floor of the premises that caused Plaintiff, RACHEL ZANE to slip and fall on top of her daughter causing her to suffer serious injuries and KAIA ZANE to die.
2. The Defendant failed to warn the Plaintiff of said dangerous and defective condition.
3. The Defendant knew or in the exercise of reasonable care should have known of the dangerous and defective condition on the property.
4. Or in the alternative, the Defendant allowed said condition to remain for a period sufficient in which a reasonable inspection would have disclosed the same.

The Defendant denies all the foregoing particulars and states that at no point did it breach any of its duties of care to its customers.  It is trite law that a conclusion as to breach of duty can only be made if the Court finds that a defendant’s actions fall below the reasonable standard of care expected of them.  Here, the Defendant did not act in any unreasonable or careless manner as alleged by the Defendant. Had the Defendant acted in the manner alleged careless manner, the Plaintiff’s alleged injuries would not have been a secret and the Defendant would have been made aware of them as soon as they allegedly occurred. The fact that no report was made with the Supermarket on the material day only goes to prove that the Plaintiff’s case is founded on blatant lies and that the Defendant did not act negligently as alleged.

• The Plaintiff’s injuries were not caused by the Defendant

The Plaintiff’s claim having failed to meet the peremptory elements of duty of care, it must fail. However, should this Honourable Court find that the Defendant breached any duty of care; the Defendant urges that any of the injuries/damages suffered by the Plaintiff have no causal link with the Defendant or its Supermarket and are, therefore, remote. American Home Assurance Co. v. Sebo, 141 So.3d 195 (Fla. 2d DCA 2013).

Once again, the Defendant invites the Court to find that the manner in which the allegations are framed shows that the Plaintiff was nowhere within the precincts of the Supermarket and even she was, the alleged accident did not occur within the Supermarket as no such report was made and there no oily substance along with pieces of small glass on the Supermarket’s floor as alleged.

3. CONCLUSION

As demonstrated above, the Plaintiff’s claims in both Count I and count 2 do not disclose any cause of action upon which relief can be granted. The Plaintiff has failed to plead important facts that would enable determination of the key elements of the tort of negligence.

WHEREFORE, for the foregoing reasons, the Defendant respectfully requests that that Court enter an order dismissing the Complaint with prejudice.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the Motion to Dismiss was furnished to Melissa Maria Ramos, Esq, 16401 NW 37th AVE Miami, FL 33054on this………..day of January, 2019.

By: _____________________