$______ GROSS VERDICT - PREMISES LIABILITY - FALL DOWN - FAILURE TO WARN - PLAINTIFF VISITING DEFENDANT WINERY SLIPS ON ALGAE NEAR FOUNTAIN ON PROPERTY - FRACTURED ANKLE - SURGERY WITH OPEN REDUCTION AND INTERNAL FIXATION - EACH PARTY FOUND 50% LIABLE - PLAINTIFF MOVES FOR NEW TRIAL.

• Pages: 5-6

The case settled for the defendants’ total policy limits of

$6,000,000 prior to suit being filed.

REFERENCE

Jacqueline Delcarmen Gonzalez as Personal Represen-

tativeoftheEstateofJoseClementeandI.Noavs.

Fishbusterz, LLC and Bernstein Benjamin Residuary TR B U/

T/W. Case no. n/a; Judge n/a, 12-13-21.

Attorneys for plaintiff: Michael A. Haggard and

Adam C. Finkel of The Haggard Law Firm in Coral

Gables, FL. Attorney for plaintiff: Charlie Mustell of

The Mustell Law Firm in Miami, FL.

COMMENTARY

Plaintiff’s counsel was able to resolve this negligent security case

rather quickly for a substantial $6,000,000 without the necessity of

filing suit. The defense attempted to portray the decedent and

plaintiff as being partially at fault for the eruption of deadly vio-

lence, alleging that they were intoxicated and perhaps had knowl-

edge of illegal drug sales taking place on the premises.

However, given the high incidences of vagrancy on the property

and the defendants’ lack of appropriate security measures, a Mon-

roe County jury hearing the case may have been disinclined to be-

lieve that the decedent/plaintiff brought this double shooting on

themselves. Thus, both Fishbusterz and The Bernstein Trust ten-

dered their available policy limits of $4,000,000 and $2,000,000,

respectively.

$313,000 GROSS VERDICT – PREMISES LIABILITY – FALL DOWN – FAILURE TO WARN –

PLAINTIFF VISITING DEFENDANT WINERY SLIPS ON ALGAE NEAR FOUNTAIN ON

PROPERTY – FRACTURED ANKLE – SURGERY WITH OPEN REDUCTION AND INTERNAL

FIXATION – EACH PARTY FOUND 50% LIABLE – PLAINTIFF MOVES FOR NEW TRIAL.

Miami-Dade County, FL

In this premises liability case, the plaintiff asserted

that the defendant agritourism site failed to

maintain signage that warned of potential

hazards on the property and that the plaintiff fell

on algae next to a fountain on the defendant’s

property, causing significant, permanent injury.

The defendant denied negligence and asserted

they were not negligent and that the plaintiff was

herself negligent by failing to use reasonable

care.

On March 1, 2020, the plaintiff was an invitee at the de-

fendant agritourism business, a winery. The plaintiff was

walking in an area near a fountain. The plaintiff asserted

that the defendant did not regularly clean the fountain

and that the water was dirty with algae spilled out of the

fountain, creating slippery organic matter on the ground

near the fountain. The plaintiff slipped on the wet, or-

ganic material and fell to the pavement. As a result of

the fall, the plaintiff sustained a fractured ankle requiring

surgery with open reduction and internal fixation. The

plaintiff sought past and future medical expenses as well

as pain and suffering.

The plaintiff maintained that the defendant allowed liq-

uids such as dirty water and algae or other substances

to accumulate on the floor, and failed to prevent dan-

gerous conditions from occurring on the premises. The

plaintiff argued that the defendant negligently failed to

maintain the premises in a reasonably safe condition,

negligently failed to correct a dangerous condition

about which it either knew or should have known, by the

use of reasonable care, or negligently failed to warn of

a dangerous condition about which defendant had, or

should have had, knowledge.

The plaintiff claimed that the defendant’s negligence

was the cause of the plaintiff slipping and falling, suffer-

ing permanent injury. The defendant argued that the

water fountain and water on the ground around it were

an open and obvious condition and that a reasonable

person approaching a water fountain would exercise

care, expecting the ground to be wet. The defendant

also claimed it was exempt from liability based on

Florida’s Agritourism Law, which bars suit against

agritourism operators when certain conditions are met.

Prior to trial, the court determined that the defendant

was an Agritourism operator and the only issue that went

to the jury was as to the Agritourism Law defense:

whether the defendant posted and maintained signs

containing the required warning at the time of the sub-

ject accident in a clearly visible location at the entrance

to the agritourism location and at the site of the

agritourism activity.

The jury found that the defendant failed to post and

maintain signs warning of possible hazards and that the

defendant’s negligence was a partial cause of the

plaintiff’s injury. The jury found the plaintiff 50% negligent

and the defendant 50% negligent with gross damages

in the amount of $313,000 broken down as follows:

$143,000 in past medical expenses; $70,000 in future

medical expenses; $50,000 in past non-economic

damages and $50,000 in future non-economic dam-

ages. Net damages after reduction for comparative

negligence totaled $156,500.

REFERENCE

Perez vs. Schnelby Redland’s Winery, Inc. Case no.

2020-020769-CA-01; Judge Jose Rodriguez, 11-16-21.

Attorney for plaintiff: Francisco Vianello of

Rubenstein Law, P.A. in Miami, FL. AttorneyS for

defendant: Bruce Trybus and Kira Tsiring of Cooney

Trybus Kwavnick Peets in Fort Lauderdale, FL.

SUMMARIES WITH TRIAL ANALYSIS 5

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