Sears and Kmart Accident and Injury Claims in Florida

If Sears or Kmart’s’ negligence caused your injury, you may be entitled to compensation.

This article focuses on personal injury claims against Sears and Kmart in Florida.  Sears is worth about $2.5 billion dollars and owns Kmart.

This article also applies to claims against other Florida stores and businesses.

Let’s look at one of the more common accident claims against a store.  It is the slip and fall.

Shopper and Husband Sue Sears

Yaicel de la Caridad Sanchez (“Sanchez”) and her husband Aldo Arencibia sued Sears, Roebuck & Company (“Sears”) for damages relating to an alleged incident that occurred in Sears’ retail store.

Sanchez sued for premises liability/negligence.  She likely sued for some, or all, of the following damages:

• Past Lost Income
• Future lost income reduced to present value
• Past medical expenses
• Future medical expenses
• Replacement value of lost personal property (e.g. damage to her watch, glasses, etc.)
• Reimbursement for mileage to and from medical appointments
• Past Pain and suffering
• Future Pain and Suffering
• Disability
• Scarring and disfigurement
• Mental anguish
• Loss of capacity for the enjoyment of life

Her husband sued for loss of consortium.

You generally sue Sears in the county where the accident happened

I assume that the accident happened in South Florida.  This is because the case was in South Florida federal court.  You generally sue Sears in the court that presides over the county where the accident happened.

Sears asked the court to dismiss the case

Sears asked the court to dismiss the case.  It dismissed the case on October 30, 2015.  Let’s see why it was dismissed.

Background

This is a negligence case arising out of an alleged slip-and-fall incident.  Sanchez, her husband, and their children drove to Westland Mall on July 1, 2010.

Upon arrival, Sanchez went straight to Sears to make a purchase.  Once inside Sears, Sanchez walked to the shoe department.

However, upon hearing an in-store announcement about a sale happening in a different department, she asked a Sears sales associate for directions to the department having the sale.

She slips on a baby wipe and falls

While walking to the department with the sale, Sanchez slipped on a baby wipe and fell to the ground.  The baby wipe was white and approximately the size of half of a standard sheet of paper.

She testified that the store’s floor was not wet other than the wet streak that remained after she slipped on the baby wipe.

She also said that she did not see the baby wipe on the floor prior to her fall.  She did not see additional baby wipes on the floor after her fall.

She didn’t know how long wipes were on floor before her fall

She did not know how long the baby wipe was on the floor prior to her fall.  She did not know who or what caused the baby wipe to be on the floor.

She did not hear any Sears’ store employees state that they knew the baby wipe was on the floor prior to the incident nor did any Sears store employees tell her that they knew what caused the baby wipe to end up on the floor in the first place.

Her husband said that he did not know where the baby wipe came from or how long it was on the floor prior to his wife’s fall.  He also spoke to a Sears store employee about the baby wipe after his wife’s fall and the employee did not tell him that he knew the wipe was on the floor prior to Sanchez’s fall. 

Video shows baby wipe on floor for less than 3 minutes before fall

Surveillance video of the incident shows that the baby wipe first appears at the spot of the incident at time stamp 12:25:38.40 and that Sanchez slips and falls at time stamp 12:28:12.70.

The video further shows that between the time when the baby wipe first appears and her fall, the wipe never moves from its original location on the store’s floor, no Sears employees inspect the area where the baby wipe is located, and no Sears employee is seen anywhere near the area of the incident.

Analysis

The mere fact that a person falls in a store does not automatically mean that the store is liable.

Person must show store’s negligence to get money

Before there can be a recovery for an injury of this kind, the person must show some negligence on the part of the store.

Florida Statute applies to store slip and fall claims

Florida Statute § 768.0755 controls her claim for negligence in this case, and says as follows:

“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.”

Must show store was aware or should have been aware of hazard

Under Florida law, the person claiming negligence must prove that the store was aware, or should have been aware, of the dangerous condition that caused the subject injury.

In this case, the parties primarily disagree over whether Sears had constructive knowledge of the baby wipe on the floor at the time of Sanchez’s fall.

Sears argues 3 minutes isn’t enough to show constructive knowledge

Sears argued that Sanchez has not provided any evidence that it had constructive knowledge of the baby wipe on the floor of its store, especially when the undisputed evidence shows that the baby wipe was present on the floor for less than three minutes before the incident occurred.

In response, Sanchez agreed that the applicable statute does require that she prove that Sears had either actual or constructive knowledge of the dangerous condition.

However, she argued the statute does not provide a definite time frame within which the condition must be present before a Sears can be deemed to have been put on notice.

Sanchez also cautioned the Court against adopting a bright line test regarding the length of time a dangerous condition must exist before an injured person can obtain money.

She instead suggests that a jury should be given an opportunity to consider the length of time the dangerous condition existed and whether the business took appropriate action to remedy the dangerous condition.

Mere presence of substance on the floor doesn’t establish constructive notice

The mere presence of [a substance] on the floor is not enough to establish constructive notice.

Constructive notice can be shown by how long hazard existed, how it was created, or who caused it

A person can establish that the store should have been aware of the dangerous condition] by producing some evidence to indicate how long the condition existed, how it was created, or who caused it.

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.

Parties agreed that shopper slipped on baby wipe on floor of Sears’ Store

Although the parties’ agree that Sanchez slipped on a baby wipe on the floor of Sears’ store, that fact alone is not enough to hold it liable.

Sanchez must also present evidence demonstrating that Sears had actual or constructive notice of the baby wipe prior to her fall, which she has failed to do.

In fact, Sanchez agreed that:

• the baby wipe was present on the floor for less than three minutes before she fell,
• no Sears employee was in the area of the baby wipe prior to her fall, and
• no Sears employee knew about the baby wipe prior to her fall.

Sanchez failed to show store should have known about hazard

Sanchez completely failed to introduce any evidence of her own to even remotely support an inference 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.

Surveillance camera footage demonstrates just the opposite; the condition was present for under three minutes before she fell.

Jury can’t hear case because no constructive notice

Sanchez has failed to present any evidence, either direct or circumstantial, that would give rise to an inference that the baby wipe had been on the floor for a sufficient length of time to charge Sears with constructive knowledge of its presence.

Therefore, the judge couldn’t ask the jury to decide if Sears’ was negligent.

While it is undisputed that Sanchez slipped on a baby wipe present on the floor of Sears’ store, the law strongly indicates that the mere presence of the foreign substance on the floor for a short period of time, without additional evidence demonstrating Sears’ constructive knowledge of the dangerous condition, is not enough to survive dismissal.

Store isn’t responsible for every person who gets hurt while shopping

The law does not make a store responsible to every person who gets hurt while shopping.

Store must fail to be reasonable to have a case

To hold a store responsible, the person must be able to prove that she was injured because the store failed to do something that a reasonable store would have done.  In this case, there is simply no evidence that Sears failed to do something that a reasonable store would have done.

The shopper’s case was dismissed.  Since her and her husband cannot prove their negligence claim, his loss of consortium claim was also dismissed.

They get nothing

She and her husband get no money in this case.

Facts that I don’t know

I don’t know why Sears only had under 3 minutes of surveillance video before the fall.  I don’t know if, shortly after the fall, the shopper sent Sears a written request to preserve the video that shows a longer period of time before the fall.

Tip:  Always ask Sears or another store to save the video after you slip and fall or are otherwise hurt on their property.

How Could the Lady Have Gotten Her Case to a Jury?

There are a few ways that the lady’s case may have survived dismissal and reached a jury.  If that happened, Sears may have offered money, or more money, to settle before (or after) it asked the court to dismiss her case.

Different facts that may have kept her case alive would have been:

• A Sears employee dropped the wipe to be on the floor.
• Video showed the wipe on the floor for longer than 3 minutes.  (The longer, the better for her case.)
• There were footprints, shopping cart tracks or around the wipe.
• There was dirty water on or around the wipe.
• An employee said that the area where the wipe was on the floor was usually messy before the fall.

Bottom Line

Some facts make slip and fall cases at stores like Sears, Kmart and others impossible to win.  This case has those facts.

However, a slight change of facts or testimony may allow you to settle or win your case at trial.

Always request, in writing, that Sears, Kmart or any other store preserve the video for the entire store for the entire day of your fall.  This can be the difference between getting compensation and getting nothing.

The judge in this case was Marcia G. Cooke.  The case is De La Caridad Sanchez v. Sears, Roebuck & Co., Dist. Court, SD Florida 2015.

Court Dismisses Customer’s Slip and Fall at a Sears Auto Garage

Learn why a court dismissed a customer’s lawsuit after a customer slipped and fell at a Sears Auto Garage in Florida. She didn’t know what caused her fall.

Which adjusting company handles Sears’ personal injury claims?

Sedgwick handles accident claims for Sears in Florida.  I have dealt with Sedgwick in many Florida personal injury cases.

Personal Injury Claims against Sears Competitors in Florida

Sears has many competitors in Florida.  Below are just a few of the injury claim articles that I’ve written about them:

• Accident claims against Walmart Stores in Florida
• Slip and Fall cases against Walmart in Florida
• Trip and fall claims against Walmart in Florida
• Accident claims against Target in Florida
• Injury claims against Macy’s (coming soon)
• Accident claims against Kohl’s (coming soon)

Did a Sears or Kmart store’s carelessness cause you to slip or trip and fall, and hurt yourself in Florida?  Were you hurt in another type of accident or somewhere else?

See Our Settlements

Check out some of the many Florida injury cases that we have settled, including but not limited to slip or trip and falls, cruise ship accidents, wrongful death and much more.

I want to represent you!

I am a Miami slip, trip and fall lawyer who represents people anywhere in Florida if someone’s carelessness caused their injuries in slip, trip and falls, cruise ship or boat accidents, accidents at an apartment complex, condo building or home, wrongful death and many other types of accidents.

I want to represent you if you were hurt in an accident in Florida, on a cruise ship or boat.

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