$______ VERDICT - PREMISES LIABILITY - FALL DOWN - PLAINTIFF'S FALL ON SPILLED DRINK IN AISLE OF DEFENDANT'S STORE CAPTURED ON VIDEO - L4-5 DISC HERNIATION WITH BILATERAL RADICULOPATHY - RIGHT KNEE TRUNCATION OF MEDIAL MENISCUS - ARTHROSCOPIC PARTIAL LATERAL DISCECTOMY AND PARTIAL SYNOVECTOMY.

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$989,031 VERDICT – PREMISES LIABILITY – FALL DOWN – PLAINTIFF’S FALL ON

SPILLED DRINK IN AISLE OF DEFENDANT’S STORE CAPTURED ON VIDEO – L4-5 DISC

HERNIATION WITH BILATERAL RADICULOPATHY – RIGHT KNEE TRUNCATION OF

MEDIAL MENISCUS – ARTHROSCOPIC PARTIAL LATERAL DISCECTOMY AND PARTIAL

SYNOVECTOMY.

Broward County, FL

In this premises liability case, the plaintiff, a 53-

year-old woman, asserted that the defendant

store had notice of a foreign substance on the

floor of its store and failed to mitigate, remove or

warn of the hazard. The plaintiff claimed that she

fell on the substance and the fall caused

significant, permanent injury. The defendant

denied negligence and contested the plaintiff’s

damages. The defendant denied any notice of the

liquid on the floor, either actual or constructive

and thus was not negligent for failing to remove

the hazard of which it was not aware.

On November 27, 2015, the plaintiff was a business

invitee at the defendant store. The plaintiff and her

daughter were walking down the soda aisle when she

slipped and fell in red juice. The plaintiff contended that

the spill was red and there was a cup on the floor that

was visible from a distance and should have been seen

by the defendant’s employee who was working in the

aisle prior to the plaintiff entering the aisle. The plaintiff

pointed to video footage that showed a customer drop-

ping the cup and spilling the liquid at 6:18 p.m. fol-

lowed by the defendant’s employee working in the aisle

before the plaintiff enters the aisle and falls at 6:52 p.m.

The plaintiff maintained that the video footage showed

that before the customer appeared, the defendant’s

employee initially walked down the aisle in the direction

of the spill and stood only feet away from it, indicating

that the defendant had ample opportunity to see the

spilled liquid on the floor. The plaintiff asserted that the

video supported the plaintiff’s contention that the defen-

dant had actual or constructive notice of the defect

prior to the plaintiff’s fall. The plaintiff contended that the

defendant negligently failed to remedy the defect de-

spite having actual or constructive notice that the liquid

was on the floor for over half an hour. The plaintiff al-

leged that the slip and fall resulted in permanent injuries.

As a result of the fall, the plaintiff sustained lumbar disc

herniation with bilateral radiculopathy; and right knee

truncation of the medial meniscus with traumatic joint

effusion. The plaintiff treated conservatively and with

physical therapy but ultimately required arthroscopic

partial lateral discectomy and partial synovectomy of

the right knee.

The defendant maintained that the plaintiff could have

seen and avoided the spill on the floor and was respon-

sible, or at least contributorily negligent. The defendant

also pointed to the fact that the plaintiff’s injuries were

not diagnosed until almost 2 years after the subject fall

as evidence that the injuries could not be proven by the

plaintiff to be causally connected to the subject fall. The

defendant presented expert testimony that the MRI per-

formed most closely following the subject incident indi-

cated only age-related degenerative spine issues and a

sprain of the right knee.

The jury found that the defendant was negligent and

awarded the plaintiff damages in the amount of

$989,031 broken down as follows: $129,031 in past

medical expenses; $550,000 in future medical ex-

penses; $60,000 in past non-economic damages and

$250,000 in future non-economic damages.

REFERENCE

Braye vs. Wal-Mart Stores, Inc. Case no. CACE17012235;

Judge Carol-Lisa Phillips, 02-24-22.

Attorney for plaintiff: David R. Strong of Law Office

of David R. Strong, P.A. in Fort Lauderdale, FL.

Attorney for plaintiff: Gabriel A. Dominelli of Dolgan

Dominelli Law, PLLC in Miami, FL. Attorneys for

defendant: Rebecca V. Aroca and Robin Khanal of

Quintairos, Prieto, Wood & Boyer, P.A. in Fort

Lauderdale, FL.

COMMENTARY

The defendant moved for a new trial and remittitur following the

verdict. The defendant argued four issues. The defendant’s first ar-

gument was that the plaintiff failed to establish that the defendant

had actual or constructive notice of a transitory foreign substance.

The defendant argued that it could not have had actual or construc-

tive knowledge of the presence of the liquid on the floor. The de-

fendant asserted that a customer stood between the defendant’s

employee and the spill, thus blocking her from seeing the spill as

exhibited in the video of the incident. Further, the defendant ar-

gued, there was not clear evidence of the defendant having had ac-

tual or constructive notice of the spill.

The defendant also argued that the evidence failed to establish

that the substance was on the floor for a sufficient length of time to

support constructive notice. The second issue in the defendant’s mo-

tion was that the jury’s award for future medical expenses was con-

tradicted by the plaintiff’s evidence, leading to a conclusion that

the jury was influenced by passion and sympathy. The defendant

maintained that, in support of her claim for damages, the plaintiff

testified that immediately after the fall, she experienced pain in

her right knee and back. The plaintiff, however, did not seek any

treatment for several years after her fall. Further, while she sought

treatment for her back, ample evidence was presented to show the

back condition had pre-existed the fall.

Despite the plaintiff’s doctor’s recommendation for neck/back sur-

gery several years before trial, the plaintiff had declined that rec-

ommendation. The defendant held that there was no testimony of

evidence of any kind that the plaintiff was reasonably certain to in-

cur future medical expenses. The plaintiff had not scheduled any

surgery and there was no evidence that she intended to do so, to

the contrary, she testified that she wanted to avoid it. As such, the

defendant asserted that the jury was clearly influenced by sympa-

thy or prejudice to make its award for future medical damages.

The defendant also contended that the jury’s award of future medi-

SUMMARIES WITH TRIAL ANALYSIS 5

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