In Litigation, News & Updates

On July 31, Florida’s Third District Court of Appeal granted Publix Super Market Inc.’s petition for writ of certiorari to quash a trial court’s discovery order that instructed Publix to supply information relating to slip and fall incidents occurring at all of Publix’s stores throughout Florida. Holding that the trial court’s order gave the plaintiff “carte blanche” discovery of irrelevant information, the Court held that the order departed from the essential requirements of the law and caused irreparable injury to Publix. The decision has significant legal and practical implications for large retailers defending slip and fall lawsuits. WSH Partner Edward G. Guedes served as appellate counsel for Publix in the matter.

The plaintiff had filed suit against Publix, alleging that she slipped and fell and asserting claims for common law negligence and negligent mode of operation. Santos sought records of all similar incidents at that particular Publix store within three years prior to her accident, which Publix provided to her. Santos then broadened her request to include all such incidents at Publix stores throughout Florida for the same time period. Publix moved for a protective order, arguing that the burden of proof standard under Florida Statute s. 768.0755 did not require it to produce such information. The trial court disagreed and ordered that Publix comply with the request.

Focusing on how the Florida Legislature had changed the statutory language when it enacted section 768.0755 and repealed the prior burden of proof statute, the Court concluded that the trial court had misinterpreted the phrase “business establishment” as used in the new statutory provision. Section 768.0755(1) states, “if a person slips and falls on a transitory substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.” Because the statute does not define “business establishment,” the Court reasoned, it must be given its plain and ordinary meaning. The Court identified the definition of “business establishment” as “a location where business is conducted, goods are made or stored or processed or where services are rendered.” Noting that the Legislature’s specific selection of “business establishment” in one provision differed from language in a subsequent provision, which the Legislature had retained from the predecessor statute, the Court reasoned that different meanings must have been intended in each provision. The Court concluded that “business establishment” refers to the individual store where the slip and fall occurred, rather than all stores in the company’s system.

The practical import of the decision is that slip and fall cases will be streamlined, litigation costs will be reduced, and premises owners will be able to focus their attention on the conduct and knowledge of employees working where the slip and fall took place.

Chaired by Partner Edward G. Guedes, our Appellate Practice Group has a record of success pursuing and defending appeals of final judgments and verdicts, as well as non-final, interlocutory appeals and original writ proceedings on behalf of public and private sector clients throughout the State. Not only do we handle dozens of appellate proceedings generated each year by our Litigation Division, but we are frequently called upon to serve as appellate counsel for our peers and major corporations. Our collective experience includes handling some of the most significant constitutional and governmental law matters to come before the courts of Florida and the United States.

Author(s): Edward G. Guedes

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