Update: As of 8/7/2015, this case is still good law.
In Peer v. Home Depot USA, Inc. Dist. Court, SD Florida 2012, Patrick Peer sued Home Depot. This is not my case. However, I have settled many Florida slip and fall claims.
The case was heard in United States District Court, S.D. Florida. Plaintiff Patrick Peer brought a negligence action in St. Lucie County, Florida based upon an incident which occurred on August 14, 2010. Home Depot removed the case to federal court.
Background
On August 14, 2010, Peer visited Home Depot’s store located at 700 SW St. Lucie West Boulevard, Port St. Lucie, Florida (the “Home Depot Store”). It was raining before Peer’s arrival and continued while he was at the Home Depot Store.
Peer was accompanied by other people, including his brother, Nico Peer, and his nephew, Austin Peer. Peer visited the Home Depot Store in order to pick up supplies for a construction job.
To help load the supplies, Peer rented a truck from the Home Depot Store and drove into an area referred to as the “contractor overhang” which is a “covered parking area for loading.” This area has a metal roof with support pillars, however, the sides are open and exposed to the natural elements.
Peer and his brother were riding together when they entered the contractor overhang. According to Peer, an area under the contractor overhang was blocked off with cones and yellow tape preventing customer access.
An unidentified Home Depot employee moved the cones and tape and waived Peer into the area in order for them to load supplies. Peer parked the truck in the previously barricaded area while Peer’s nephew, in a separate vehicle, parked behind the rental truck.
After parking, Peer and his brother exited the rental truck. As soon as Peer’s foot hit the ground, he slipped and fell underneath the truck. Both Peer’s brother and nephew saw Peer fall and approached him.
Home Depot employees and Peer’s brother helped him off the ground. Peer’s brother and nephew both noticed a slimy substance on the ground where Peer had fallen. According to Plaintiff, a Home Depot employee apologized to Peer because the area was blocked off because it was greasy.
A manager, Raymond Mundt, was contacted to talk to Peer about the accident. Mundt noted that Peer was wet and dirty from the fall but that there were no Home Depot employees around Peer.
Additionally, Mundt did not see any cones in the area. Peer and his brother showed Mundt where Peer had fallen, however, Mundt claims the area was not slippery and only covered with rainwater.
Mundt never spoke to any Home Depot employees in order to investigate the incident. Peer requested an incident report be filed but did not receive any medical treatment at the scene.
Apparently, 911 was not called. Peer did not take an ambulance to the hospital.
After the vehicle was loaded by Home Depot employees and Peer’s companions, Peer drove his truck home rather than to work as he had originally planned.
Since the incident, Peer has incurred substantial medical expenses and undergone two surgeries on his neck and lower back.
After the vehicle was loaded by Home Depot employees and Peer’s companions, Peer drove his truck home rather than to work as he had originally planned.
Analysis
Under Florida law, a plaintiff alleging negligence must establish:
(1) a legal duty that the defendant owed the plaintiff,
(2) the defendant’s breach of that duty,
(3) an injury to the plaintiff that was caused by the breach, and
(4) damages as a result of the injury. Castellanos v. Target Corp., 2011 WL 5178334, at *3 (S.D. Fla. Oct. 14, 2011) (citing Zivoiinovich v. Barner, 525 F.3d 1059, 1067 (11th Cir. 2008)). Learn about slip and fall injury claims against Target stores in Florida.
Additionally, “a landowner owes two duties to a business invitee:
(1) to use reasonable care in maintaining the premises in a reasonably safe condition; and
(2) to give the invitee warning of concealed perils which are or should be known to the landowner, and which are unknown to the invitee and cannot be discovered by him through the exercise of due care.” (Emmons v. Baptist Hospital., 478 So. 2d 440, 442 (Fla. Dist. Ct. App. 1985)).
Florida Statute § 768.0755 governs slip and fall claims based on a transitory object in business establishments and requires a plaintiff to prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.”
Constructive notice can be proven through circumstantial evidence such as: (1) “[t]he dangerous condition existed for such a length of time that, in the exercise ordinary care, the business establishment should have known of the condition”; or
(2) “the condition occurred with regularity and was therefore foreseeable.” § 768.0755(1).
Therefore, to survive Home Depot’s Motion for Summary Judgment, he must show there is a genuine issue of material fact regarding whether Home Depot had either actual or constructive notice of the transitory object.
There is a material dispute as to the substance that Peer slipped on in the contractor overhang. Peer contends the substance was a combination of rainwater and oil.
Home Depot argues the substance was merely rainwater, and Home Depot Defendant had no duty to warn Peer about this condition.
My thoughts: A landowner does not have to warn you of rainwater that you knew about or should have known about through due care.
A. Constructive Notice
The evidence in the light most favorable to Plaintiff reveals that there is no disputed material fact as to whether Home Depot had constructive notice of the transitory object. Peer cannot establish that the dangerous condition existed for a sufficient length of time or that the dangerous condition occurs with regularity.
First, there is no evidence that the transitory object was present in the contractor overhang for a sufficient period of time. Circumstantial evidence is often used to determine the length of time that an object has been on the ground. See e.g.,Winn-Dixie Stores, Inc. v. Guenther, 395 So. 2d 244 (Fla. Dist. Ct. App. 1981). (Learn about slip and fall injury claims against Winn Dixie stores).
In Guenther, the Court found constructive notice because the plaintiff demonstrated the liquid was on the ground for a sufficient period of time because it “appeared dirty and had scuff marks and several grocery car tracks running through it.”
Similarly, constructive notice has been found where frozen orange juice concentrate was on the ground long enough to partially liquefy. Grizzard v. Colonial Stores, Inc., 330 So. 2d 768, 769 (Fla. Dist. Ct. App. 1976). (Learn about slip and fall injury claims against Florida grocery stores).
The above examples demonstrate Peer has not met his burden to show constructive notice because Peer has presented no evidence to establish how long the dangerous condition was present. Peer even acknowledges that he doesn’t know how long the substance was on the ground.
Without presenting any evidence, Peer cannot rely on the time the substance was on the ground to establish constructive notice.
Second, Peer cannot rely on foreseeability to establish constructive notice. A plaintiff can establish constructive notice if the condition occurs with regularity and thus is foreseeable. Scott v. Florida Supermarkets. Inc., 580 So. 2d 312 (Fla. Dist. Ct. App. 1991) (finding notice because a recurring puddle formed in front of the store and patrons frequently slipped in the puddle).
Home Depot’s employees said that Home Depot has policies and procedures to prevent slips and falls. However, simply having policies to prevent incidents does not equate to those instances being foreseeable. See Wal-Mart Stores, Inc. v. King, 592 So. 2d 705, 707 (Fla. Dist. Ct. App. 1991) (finding no notice where customer slipped in an area known to contain slick spots and business had established safety clean program requiring area to be swept several times a day).
(Learn about slip and fall injury claims against Florida Walmart stores).
Here, there is no evidence that such a hazard occurred with enough frequency to impute constructive notice. Indeed, the Raymond Mundt, who has worked at the Home Depot Store for nearly ten years, confirms that no similar instances have occurred in the past.
Therefore, Peer cannot establish constructive notice by arguing that a slip and fall hazard in the contractor overhang is foreseeable.
Therefore, Peer cannot establish constructive notice through the length of time the dangerous condition existed nor the foreseeability of the dangerous condition. Summary judgment as to constructive notice is granted in favor of Home Depot because Peer has presented no evidence to establish a dispute as to this material fact.
Actual Notice
The evidence in the light most favorable to Plaintiff shows that there is a disputed material fact as to whether Home Depot had actual notice of the transitory object. The deposition testimony of Peer and his brother confirm that the area where Peer fell was blocked off upon entering the contractor overhang.
Moreover, a Home Depot employee moved cones in order for Peer to park the rental truck where he subsequently fell. See Barbour v. Brinker Florida, Inc., 801 So. 2d 953, 957 (Fla. Dist. Ct. App. 2001) (stating that “actual knowledge of a dangerous condition exists when . . . employees or one of the employer’s agents knows of or creates the dangerous condition.”).
The fact that the area was originally blocked off could lead a reasonable jury to conclude that Home Depot had actual knowledge of the dangerous condition. Although the testimony of Peer and his brother is arguably self-serving, it is enough to establish that at least one agent of Home Depot knew of the dangerous condition and decided to block off the area.
My thoughts: Self-serving testimony is better than nothing, but it is not as powerful as independent witness testimony. All things equal, a slip and fall case with independent witness testimony has a higher settlement value than a case with only arguably self-serving testimony.
Indeed, a Home Depot agent removed the cones and exposed Peer to the dangerous condition before it was fixed. The only evidence that Home Depot has presented disputes Peer’s claim that the area was blocked off with cones.
Therefore, the Court concluded that there is a disputed material fact as to whether Home Depot had actual notice of the transitory object. Since there is a disputed material fact, the court let the case continue to trial on the issue of whether Home Depot had actual knowledge of the dangerous condition.
Learn More about Home Depot personal injury claims in Florida
Check out my articles on a:
- Home Depot Slip and Fall Injury Claims in Florida
- $370,000 verdict for pain & suffering from a neck injury and surgery when a lady was struck by a loose display at a Vero Beach, Florida Home Depot.
Learn about slip and fall injury claims against Florida Home Depot stores.
The law from this case also applies to Home Depot’s Competitors in Florida. They include, but are not limited to:
- True Value
- Ace Hardware
- Lowe’s
- Sherwin-Williams
- Sears
Did a Home Depot’s carelessness cause you to slip or trip and fall and suffer an injury in Florida? Were you injured somewhere else and/or in another type of accident?
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