Sanchez v. ERMC of America, LLC et al

Filing 30

OPINION AND ORDER granting in part and denying in part 8 motion to dismiss; granting in part and denying in part 10 motion to dismiss. The motions are granted as to Count II (Coastland Center, LLC) and Count IV (ERMC of America, LLC), which counts are dismissed with prejudice. The motions are otherwise denied. Signed by Judge John E. Steele on 1/31/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROSA SANCHEZ,
Plaintiff,
v.

Case No: 2:16-cv-851-FtM-99CM

ERMC OF AMERICA, LLC
COASTLAND CENTER, LLC,

and

Defendants.
OPINION AND ORDER
This matter comes before the Court on defendants ERMC of
America, LLC and Coastland Center, LLC’s 1 Motions to Dismiss or,
Alternatively, for a More Definite Statement (Docs. ##8, 10) filed
on

December

1

and

2,

2016.

Plaintiff

filed

opposition to both motions on December 14, 2016.

a

response

(Doc. #13.)

in
For

the reasons set forth below, the motions are granted to the extent
that

plaintiff’s

negligent

mode

of

operation

claims

against

defendants are dismissed; otherwise, the motion is denied.
I.
Plaintiff Rosa Sanchez (plaintiff or Sanchez) has brought
this premises liability action against the owner and operator of

1

Glenn Harrell was previously named as a defendant in this
action (Count V) and joined in Coastland Center’s motion to
dismiss.
Plaintiff has since voluntarily dismissed Harrell and
he has been terminated from this case; therefore, Harrell’s
arguments for dismissal are moot. (Docs. ##14, 15, 21.)

Coastland Center Mall (the “Premises”) for negligence arising out
of a slip and fall incident that occurred on or about May 7, 2015
near the entrance to the Old Navy store.
Plaintiff

alleges

that

she

slipped

and

substance,” sustaining serious injury.

(Doc. #2, ¶¶ 6-7.)
fell

on

a

“slippery

(Id.)

The case was removed based upon diversity jurisdiction, and
is currently proceeding on a four-count Amended Complaint against
defendants Coastland Center, LLC (Coastland) and ERMC of America,
LLC

(ERMC)

(collectively,

“defendants”)

under

theories

of

negligence (Counts I and III) and negligent mode of operation
(Counts II and IV).

(Doc. #2.) 2

Plaintiff alleges that Coastland

was in possession, custody, and control of the Premises, that ERMC
was responsible for the maintenance of the Premises, and that
defendants were the “owner(s) and/or operator(s) of the Premises.”
(Id. at ¶¶ 3-4, 9, 15.)

Defendants move to dismiss the Amended

Complaint for failure to state a claim because the complaint fails
to allege sufficient facts to establish negligence, and because
negligent mode of operation has been abrogated by Florida Statute.
II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”

2

Fed. R. Civ. P. 8(a)(2).

The fifth count was a claim of negligence against Harrell
individually, who has since been dismissed.

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This obligation “requires 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)

(citation omitted).

To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”

Id. at 555.

See also Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
“more

than

an

accusation.”

unadorned,

Ashcroft

v.

This requires

the-defendant-unlawfully-harmed-me
Iqbal,

556

U.S.

662,

678

(2009)

(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth.”
v.

Berzain,

omitted).

654

F.3d

1148,

1153

(11th

Cir.

2011)

Mamani

(citations

“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
consistent

with

a

facially plausible.”

“Factual allegations that are merely

defendant’s

liability

fall

short

of

being

Chaparro v. Carnival Corp., 693 F.3d 1333,

1337 (11th Cir. 2012) (internal citations omitted).

Thus, the

Court engages in a two-step approach: “When there are well-pleaded
factual allegations, a court should assume their veracity and then

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determine whether they plausibly give rise to an entitlement to
relief.”

Iqbal, 556 U.S. at 679.
III.
A. Negligence (Counts One and Three)

1. Adequate Factual Allegations
Under

Florida

law, 3 to

maintain

a

cause

of

action

for

negligence, a plaintiff must prove: “(1) a duty to the plaintiff;
(2)

the

defendant’s

breach

of

that

duty;

(3)

injury

to

the

plaintiff arising from the defendant’s breach; and (4) damage
caused

by

the

injury

to

defendant’s breach of duty.”

the

plaintiff

as

a

result

of

the

Delgado v. Laundromax, Inc., 65 So.

3d 1087, 1089 (Fla. 3d DCA 2011).

A property owner owes two duties

to a business invitee: (1) a duty to warn of latent or concealed
perils that were known or should have been known to the owner and
which were unknown to the invitee; and (2) a duty to take ordinary
care to maintain its premises in a reasonably safe condition.
Westchester Exxon v. Valdes, 524 So. 2d 452, 455 (Fla. 3d DCA
1988); see also Ramsey v. Home Depot U.S.A., Inc., 124 So. 3d 415,
417 (Fla. 1st DCA 2013).
Here, plaintiff alleges that defendants had a duty to its
business invitees to exercise reasonable care to maintain the

3

Florida’s substantive law governs in this diversity case.
LaTorre v. Connecticut Mut. Life Ins. Co., 38 F.3d 538, 540 (11th
Cir. 1994).

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Premises in a reasonably safe condition and to warn plaintiff of
latent perils.

(Doc. #2, ¶¶ 8, 15).

Plaintiff alleges that

defendants breached that duty by allowing the existence of a
dangerous

condition

on

the

floor

and

failing

to

inspect

the

Premises, creating the dangerous condition which was known or
should

have

been

known

to

defendants.

(Id.

at

¶¶

9,

16.)

According to plaintiff, these actions caused her fall and injuries.
Defendants do not contest that they had a duty to business
invitees such as Sanchez, or that the actions they are alleged to
have committed would constitute a breach of that duty.

Instead,

defendants argue that the Amended Complaint is deficient because
plaintiff does not allege how defendants failed to maintain the
Premises,

what

condition

existed

that

required

inspection

or

removal, how long the purported condition existed, or how it
required removal and why. 4

Defendants also argue that plaintiff

has not set forth the length of time the dangerous condition
existed prior to her fall or how defendants could have known about
the slippery substance. 5

4

Defendants also assert that the Amended Complaint fails to
identify where plaintiff fell.
Yet, the Amended Complaint
specifically states that it was outside the Old Navy store. (Doc.
#2, ¶ 6.)
5

Defendants also argue that the Amended Complaint does not
allege that the dangerous condition was hidden or concealed, which
is required to trigger defendants’ duty to warn, see St. Joseph’s
Hosp. v. Cowart, 891 So. 2d 1039, 1042 (Fla. 2d DCA 2004) (finding
that the hospital had no duty to warn plaintiff of a danger of
which it had no knowledge). Plaintiff’s Amended Complaint does

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Such specificity is not required to state a cause of action
for negligence.

Even if such information, as defendants insist,

constitutes “facts that one would think are within the knowledge
of the Plaintiff,” there is no requirement that plaintiff plead
them.

In re Southeast Banking Corp., 69 F.3d 1539, 1551 (11th

Cir. 1995) (Fed. R. Civ. P. 8 does not require a plaintiff to plead
with the greatest specificity it can).

Accordingly, Sanchez has

plausibly alleged her negligence cause of action. 6
2. Commingling Claims
Defendants also assert that plaintiff alleges and commingles
more than one cause of action in the negligence count, and that
failure to warn, negligent maintenance, and “active negligence”
should be alleged as separate counts.
property

owner

owes

to

an

invitee

Although the two duties a
are

distinct,

Wolford

v.

allege a duty to warn her of “latent perils.” Whether defendants
had knowledge of the slippery substance on the Premises such that
it triggered the duty to warn is a fact issue, and dismissal on
this grounds is denied.
6

Defendant ERMC argues that the Amended Complaint improperly
alleges that it was responsible for the maintenance of the
Premises, although it was not. Yet, the Court accepts plaintiff’s
allegation that it was responsible for the Premises as true at the
motion to dismiss stage. While it is not entirely clear from the
Amended Complaint what maintenance services that ERMC provided at
Coastland Mall, maintenance companies responsible by contract for
cleaning and custodial services may be held liable to members of
the public for its negligence in performing that contract. See
Maryland Maintenance Serv., Inc. v. Palmieri, 559 So. 2d 74, 76
(Fla. 3d DCA 1990).

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Ostenbridge, 861 So. 2d 455, 456 (Fla. 2d DCA 2003); Lynch v.
Brown, 489 So. 2d 65, 66 (Fla. 1st DCA 1986) (recognizing that
these two duties are “alternative”), plaintiff has adequately
alleged breach of both duties as the basis for her negligence
claim.

The Court sees no requirement in this case for plaintiff

to assert breach of the duties as separate causes of action.

Cf.

Fed. R. Civ. P. 10(b).
B. Negligent Mode of Operation (Counts Two and Four)
The parties disagree on whether the “mode of operation” theory
is still viable in Florida.

The mode of operation theory allows

a slip-and-fall plaintiff to recover by showing that a defendant
failed

to

operation,

exercise

reasonable

without

showing

care

that

in

the

selecting

defendant

a

constructive knowledge of the dangerous condition.

of

actual

had

mode

or

See Markowitz

v. Helen Homes of Kendall Corp., 826 So. 2d 256, 259-60 (Fla. 2002)
(“[T]he mode-of-operation rule looks to a business’s choice of a
particular

mode

of

operation

plaintiffs accident.”).

and

not

events

surrounding

the

In Markowitz, the court recognized that

the duty of premises owners to maintain their premises in a safe
condition

was

not

limited

to

simply

detecting

the

dangerous

conditions as they occur, but businesses were under a duty to take
actions

to

“reduce,

minimize,

or

eliminate

before they manifest themselves. . . .”

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foreseeable

Id. at 259.

risks

At the time

Markowitz

was

decided,

the

slip

and

fall

statute

in

effect

explicitly mentioned mode of operation, providing that:
(1) The person or entity in possession or control of
business premises owes a duty of reasonable care to
maintain the premises in a reasonably safe condition for
the safety of business invitees on the premises, which
includes reasonable efforts to keep the premises free
from transitory foreign objects or substances that might
foreseeably give rise to loss, injury, or damage.
(2) In any civil action for negligence involving loss,
injury, or damage to a business invitee as a result of
a transitory foreign object or substance on business
premises, the claimant shall have the burden of proving
that:
(a)

The person or entity in possession or control
of the business premises owed a duty to the
claimant;

(b)

The person or entity in possession or control
of the business premises acted negligently by
failing to exercise reasonable care in the
maintenance, inspection, repair, warning, or
mode of operation of the business premises.
Actual
or
constructive
notice
of
the
transitory foreign object or substance is not
a required element of proof to this claim.
However, evidence of notice or lack of notice
offered by any party may be considered
together with all of the evidence; and

(c)

The failure to exercise reasonable care was a
legal cause of the loss, injury, or damage.

Fla. Stat. § 768.0710(2)(b) (emphasis added) (repealed July 1,
2010).
On July 1, 2010, a new slip and fall statute went into effect,
Fla. Stat. § 768.0755, and the current version of the statute was

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in effect at the time of Sanchez’s slip and fall.

The statute now

provides:
(1) If a person slips and falls on a transitory foreign
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.
Constructive knowledge may be proven by circumstantial
evidence showing that:
(a)

The dangerous condition existed for such a
length of time that, in the exercise of ordinary
care, the business establishment should have
known of the condition; or

(b)

The condition occurred with regularity and was
therefore foreseeable.

(2) This section does not affect any common-law duty of
care owed by a person or entity in possession or control
of a business premises.
Fla.

Stat.

§

768.0755

(2010).

Defendants

argue

the

current

version eliminates the mode of operation theory, while plaintiff
argues that it preserves the cause of action.

(Doc. #13 at 9.)

Florida courts have held that under the current version of
the

statute,

proof

of

actual

or

constructive

necessary element of a slip and fall claim.

knowledge

is

a

See Pembroke Lakes

Mall Ltd. v. McGruder, 137 So. 3d 418, 426 (Fla. 4th DCA 2014).
See also Woodman v. Bravo Brio Restaurant Group, Inc., No. 6:14cv-2025-Orl-40TBS, 2015 WL 1836941, at *2 (M.D. Fla. Apr. 21, 2015)
(interpreting § 768.0755 to effectuate the legislature’s intent
and finding that proof of actual or constructive knowledge is an
element of a slip and fall case, replacing proof by negligent mode

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of operation); Valles v. Target Corp., No. 14-60723-Civ-Scola,
2015 WL 1640326, at *2 (S.D. Fla. Apr. 9, 2015) (Essentially, under
Florida law, “a person claiming that a store was negligent by not
cleaning up a dangerous condition must present some evidence that
the dangerous condition ... existed for such a length of time that,
in the exercise of ordinary care, the store would have known of
the condition.”) (citing Vallot v. Logan’s Roadhouse, Inc., 567 F.
App’x 723, 726 (11th Cir. 2014) (affirming an order granting
summary judgment where the plaintiff failed to establish that the
restaurant

had

actual

or

constructive

notice

of

a

slippery

substance on the floor where he fell)).
The Court agrees that the plain language of subsection (1)
requires

proof

of

actual

transitory foreign substance.

or

constructive

knowledge

of

the

In enacting Fla. Stat. § 768.0755,

the Florida legislature specifically repealed the language of Fla.
Stat. 768.0710, which had allowed a plaintiff to establish a claim
for relief by showing a negligent mode of operation without the
showing of actual or constructive knowledge.

In interpreting §

768.0755, this Court must “strive to effectuate the legislature’s
intent”

beginning

with

the

plain

language

of

the

statute.

Kasischke v. State, 991 So. 2d 803, 807 (Fla. 2008) (noting that
if the statutory language is “clear and unambiguous,” the inquiry
ends there).

Plaintiff’s argument that her negligent mode of

operation claim survives under subsection (2) of the statute is

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not

supported.

The

statute

eliminated

a

action, but preserved only common law claims.
830 So. 2d 817, 824 (Fla. 2002).

statutory

cause

of

See State v. Goode,

“[A] basic rule of statutory

construction provides that the Legislature does not intend to enact
useless provisions, and courts should avoid readings that would
render part of a statute meaningless.”
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

Defendant ERMC of America, LLC’s Motion to Dismiss or,

Alternatively, Motions for a More Definite Statement (Doc. #8) is
GRANTED IN PART and DENIED PART.

The motion is granted to the

extent that Count IV is dismissed with prejudice; otherwise, the
motion is denied.
2.

Defendant Coastland Center, LLC’s Motion to Dismiss or,

Alternatively, Motion for a More Definite Statement (Doc. #10) is
GRANTED IN PART and DENIED PART.

The motion is granted to the

extent that Count II is dismissed with prejudice; otherwise, the
motion is denied.
DONE and ORDERED at Fort Myers, Florida, this
of January, 2017.

Copies:
Counsel of Record

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31st

day