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Home Depot Slip and Fall Injury Claims in Florida

Justin Ziegler, Lawyer
Spilled and and water on an aisle floor at a Home Depot store in Pinecrest, Miami-Dade County, Florida
Spilled and water on an aisle floor at a Home Depot store in Pinecrest, Miami-Dade County, Florida

If a Florida Home Depot store’s negligence caused you to slip, fall and get hurt, you may be entitled to get damages. 

I am going to talk about a few Florida Home Depot slip and fall cases that will give you a basic understanding of what to expect.

$1,000,000 Settlement Demand with Small Bills Doesn’t Get Case to Federal Court

Jennifer Ortega-Pleasant sued Home Depot U.S.A. Inc., d/b/a The Home Depot and Yoanky Hernandez, as store manager.

The lawsuit was brought in Broward County, Florida state court.  Home Depot then removed the case to United States District Court, S.D. Florida.  This is South Florida federal court.

Tip: Home Depot likes to try to remove cases to federal court because federal judges may be more likely to dismiss slip and fall cases. The two biggest companies that like to remove Florida slip and fall cases to federal court are Walmart and Target.

The district court issued an order on May 29, 2015.  The judge sent the case back to Broward County, Florida state court.

I. Background

This negligence case was originally filed in state court. Home Depot and its store manager later removed the case to federal court on the basis of diversity jurisdiction.

Home Depot and its manager said that store manager Yoanky Hernandez (“Hernandez”) was only joined as a defendant in order to defeat diversity jurisdiction.

Home Depot further attempt to establish diversity jurisdiction on the grounds that Ortega’s pre-suit demand letter offered to settle the lawsuit for $1,000,000.

Tip: You should generally send a pre-suit demand letter to Home Depot before you sue.  Be sure to submit all the medical records, bills, theory of liability and every other helpful document.

Ortega’s medical bills and expenses, however, as set forth in the pre-suit demand and as represented by Ortega in the Motion to Remand, amount to under $16,000.

The weight given to settlement offers in determining the actual amount in controversy in any given case will depend on the circumstances. Jackson v. Select Portfolio Servicing, Inc., 651 F.Supp.2d 1279, 1281 (S.D. Ala. 2009). “Settlement offers commonly reflect puffing and posturing, and such a settlement offer is entitled to little weight in measuring the preponderance of the evidence.

On the other hand, settlement offers that provide `specific information … to support the injured person’s claim for damages’ suggest that he is `offering a reasonable assessment of the value of his claim’ and are entitled to more weight.

II. Discussion

Home Depot relies on a pre-suit demand letter to establish the amount in controversy requirement.  The pre-suit demand letter describes the alleged injury sustained by Plaintiff after she slipped and fell at Home Depot’s premises.

Essentially, Plaintiff claims she suffered one herniated disc, and associated spinal injury, as a result of her fall.  The pre-suit demand letter further states that Plaintiff has reached maximum medical improvement, and has suffered a 10% permanent impairment to her body.

The total medical bills and expenses claimed by Plaintiff amounted to $15,374.73, according to the pre-suit demand letter.  Nevertheless, Ortega demanded $1,000,000 as a settlement amount. 

The court said:

“In this case, the settlement offer does not have the type of detail needed to carry Home Depot’s burden of establishing that the amount in controversy exceeds $75,000, as required for diversity jurisdiction purposes. There is no detailed explanation as to why Ortega’s claim would be worth five times the amount Ortega has expended on medical bills. Certainly, there is no explanation to support the claim of $1,000,000, indicating that the settlement offer was mostly just puffing and postering.”

As mentioned earlier, the federal judge sent this case back to Broward County, Florida state court.  This was a victory for Ortega.

The case is Ortega-Pleasant v. Home Depot USA, Inc., Dist. Court, SD Florida 2015.  Though I have settled many Florida slip and fall cases, this is not my case.

Man Who Slipped on Dust from Unwrapped Insulation Can Get His Case to Trial

Linares sued The Home Depot in the United States District Court in the Southern District of Florida.  Looking at the court’s order can help you better understand slip and fall cases against Home Depot.

I. Background

This lawsuit is from an incident occurring on January 28, 2011 at a Home Depot store located at 11001 Pines Boulevard in Pembroke Pines, Broward County, Florida.

Plaintiff Enrique Linares (“Plaintiff”) and Ramon Clemente went to Home Depot to purchase materials to insulate a shed in Plaintiff’s backyard. Once inside, Plaintiff obtained a flat cart and put 4 to 6 sheets of insulation on the cart.

He also added wooden sticks and screws.  As Plaintiff pulled the cart, he became unsteady, tried to balance himself, when he suddenly heard both knees pop.

At the time of the fall, Mr. Clemente was outside in the parking lot. Plaintiff called him and told him that he fell. Mr. Clemente went inside and saw Plaintiff lying on the floor.

An employee of Home Depot sat the injured man up and asked Mr. Clemente to sign the customer incident report.  The report, which was completed by Home Depot, stated the following: “Pulling flat cart and both legs gave out and fell down (both knees gave out) (no chest pain or didn’t pass out).” [1]

The injured man told Mr. Clemente that he “fell” and later, after being seen at the hospital, Plaintiff said that he “slipped.”[2   The claimant told employees at Home Depot that he fell.

He also may have told them that his legs gave out.  While at the hospital, Mr. Clemente took a picture of the injured man’s shoes and his jacket, which had dirt and debris on them.

Barbara Glaid, a Home Depot employee who responded to the scene, testified that she saw nothing on the floor when she arrived, but she did not touch the floor.  She also stated that the injured man motioned to his knees.

Home Depot sweeps the floors “all day,” but only when employees see something on the ground.  She has never seen shavings from insulation on the ground.[3]  The store manager, Osvaldo Ibarra, stated that he arrived at the scene after he fell and was told he stated that his legs gave out while he was pulling a cart and he had fallen to the floor.

Before leaving the area, he noticed that the floor was clean and dry.  Right after the fall, the injured man was in pain and was not able to answer a lot of questions.

He told fire rescue that his knees gave out and that he fell.  He also testified that he told the hospital staff that he was pulling a cart and his knees gave out.

Immediately after his fall, he said that a Home Depot manager told an employee to clean the floor right now.  Neither he nor Mr. Clemente saw anyone sweep the floor.

When asked about what he saw on the floor, Plaintiff said:

“Q: Was there something on the floor?

A: I did not see.

Q: You never saw anything on the floor?

A: I did not see anything, and maybe after I could say that I slipped on something; but at that time I did not see anything.

Q: So either before you say slipped or after you say slipped, did you see anything on the floor?

A: Before falling I saw on the floor pieces of insulation. . .

My thoughts:  As soon as the man said that he saw the insulation before he fell, the Home Depot attorney (and adjuster) probably reduced its estimate of the “full value” of his claim by at least 50% for this one factor alone.

This is because a shopper has a duty to use reasonable care when walking after seeing a dangerous condition on the floor.

Home Depot’s settlement offer, if any, would likely reflect this 50% or so reduction for the shopper’s comparative fault.

Home Depot can argue that since the shopper saw insulation on the floor before the fall, he could have turned around and avoided it or walked at a very slow pace.  Home Depot can argue that the accident would not have happened if the man would have walked more carefully.

. . . .

Q: Okay. So you actually saw some pieces of insulation on the floor in the aisle where you picked out the insulation you put on your cart?

A: Yes, you know when you move around insulation material there’s some small pieces that get dropped on the floor, and I saw that on one side of the aisle.

. . . .

Q: But describe it for me. When you say pieces, what did it look like?

A: When you move the insulation material from one side to the other place, you leave on the floor small pieces.

Q: How large are the pieces?

A: I don’t know. There were pieces, pieces on the floor. . . .

. . . .

Q: Okay. And so what color material did you see on the floor?

A: I don’t know the color. When that is spread out it losses [sic] the color. We’re not talking about large pieces. We’re talking about dust from insulation.”

Q: …Did you see what you believe to be insulation dust on the floor in the aisle before you had your accident?

A: Yes, I did.

. . . .

Q: Okay. And the dust that you said you saw before your accident, did you see it before you pulled the sheets from the rack?

A: Yes, but listen, I’m trying to remember the events of that day. Dust from insulation at that time was not important, but now that there was an accident that becomes important.

Q: . . . . Are you claiming in this case that you slipped on insulation dust?

A: Yes.

Q: Okay. And are you saying that you saw this insulation dust on the floor in the aisle before your accident happened?

A: Yes, of course.

. . . .

Q: . . . . When you went down on your buttocks after you fell, did you see insulation dust on the floor where you were?

A: I don’t remember.

Q: You can’t say whether or not there was any insulation dust on the floor where you were pulling the cart at the time that you went down, correct?

A: I’m not sure of anything. What I know is I slipped and fell there.

Q: All you know is you slipped. You have no idea how it is you slipped, correct?

A: What I know is I fell, and if it wasn’t because of the accident, none of that, dust on the floor would have been relevant.

Q: You don’t know how you slipped, correct?

A: No, it is very difficult.

When asked if he saw any dust on the floor, Mr. Clemente stated that the floor was a light grey, which made it difficult to see anything, including dust.

He said that, despite wearing rubber soled shoes, his feet moved easily across the floor and “you can tell that there’s like a film of dust over it.”

At the time of the accident, he was wearing tennis shoes with a rubber sole.  The floor at Home Depot is concrete. It is shiny and there is a sheen, but there is no coating on the floor.[5]

Home Depot moved for summary judgment on several grounds.  This means that they tried to get the case permanently dismissed.

First, they argued that Plaintiff is guessing that he slipped on construction dust. Second, Home Depot claims that Plaintiff’s theory of the case requires an impermissible stacking of inferences.

Lastly, Home Depot states that there is no evidence to establish that Home Depot created the condition on the floor or had actual or constructive notice of the condition.

II. Discussion

To support a lawsuit based on negligence, the burden of proof is on the plaintiff to establish that:

(1) the defendant owed a duty of reasonable care to maintain the premises in a reasonably safe condition;

(2) the defendant breached that duty and

(3) the defendant’s breach was the proximate cause of the plaintiff’s injuries and resulting damages.

Home Depot claims that summary judgment should be granted in its favor because Plaintiff is merely guessing that the cause of his fall was dust on the floor of Home Depot. In making this argument, Home Depot relies upon Mount Sinai Med. Ctr. of Greater Miami, Inc. v. Gonzalez, 98 So. 3d 1198 (Fla. Dist. Ct. App. 2012).

In comparing that case to the instant case, Home Depot points to testimony where Plaintiff states that:

At the same time, Plaintiff points to evidence that he testified that:

The Court finds, based on the evidence highlighted by Plaintiff, there is a genuine issue of material fact as to whether there was dust on the floor where Plaintiff fell. Unlike in Mount Sinai, where there was no testimony to indicate what caused the plaintiff’s injuries aside from the plaintiff’s guess, the testimony of Plaintiff and Mr. Clemente raises a question of fact regarding the presence of dust on the floor. Thus, Plaintiff’s case does not rely solely on speculation.[6]

Likewise, the same evidence may be relied upon to dispute Home Depot’s characterization of Plaintiff’s theory of the case as dependent upon a stacking of inferences.

By way of example, while it is true that a jury could conclude, based on Plaintiff’s testimony, that Plaintiff fell because his knees gave out, there is evidence that would allow a fact finder to conclude that he fell because of dust on the floor.[7]

Therefore, the Court rejected Home Depot’s argument that Plaintiff’s theory of the case is impermissibly dependent on the stacking of inferences. Instead, the Court finds that it is necessary for a fact finder to analyze this conflicting evidence to decide the issue of causation.

Lastly, the Court addressed Home Depot’s claim that it is entitled to summary judgment because there is no evidence to establish that Home Depot created the condition on the floor or had actual or constructive notice of the condition.

Controlling in this case is Florida Statutes § 768.0755.[9] This statute provides that a person who slips and falls on a transitory foreign substance in a business establishment “must prove that the business establishment has actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.” Fla. Stat. § 768.0755(1).

Home Depot relies heavily on Feinman v. Target Corp., No. 11-62480-CIV, 2012 WL 6061745 (S.D. Fla. Dec. 6, 2012). There, neither the plaintiff, nor her husband, had any idea what caused her to fall, only that she felt “something” under her shoe.

There was no evidence as to the condition of the floor or the cause of her fall. Moreover, there was evidence that Defendant’s employees inspected the area for the presence of a transitory foreign substance and all inspections were negative.

The instant case, however, differs from Feinman. Unlike Feinman, where the plaintiff could not identify what caused her to fall, there is evidence in this case from which the jury could conclude that Plaintiff fell due to dust on the floor from the unwrapped insulation.

Additionally, the facts in Feinman showed that a store employee responsible for the area where the plaintiff fell constantly monitored the floor for hazards and did not see anything on the floor.

In contrast, Plaintiff is relying on evidence that Home Depot’s employees only sweep the floor when they see something, and the lack of evidence that Defendant’s employees monitor the floor for debris.

Moreover, there is evidence that after Plaintiff’s fall, the store manager told employees to sweep the area where he fell, suggesting something was on the floor that needed to be removed.

The Court also did not find persuasive Home Depot’s reliance on Miller v. Big C Trading, Inc., 641 So. 2d 911 (Fla. Dist. Ct. App. 1994).[10] There, the court held that the presence of two store employees in proximity to where the plaintiff fell did not give rise to an inference that the defendant was on constructive notice of the grape’s presence on the floor.

Plaintiff is not relying on the presence of employees near the site of his fall.

Rather, Plaintiff is relying on evidence that Home Depot’s employees only sweep the floor when they see something, and the lack of evidence that Home Depot’s employee’s monitor the floor for debris.

Plaintiff also relies upon evidence that the insulation Plaintiff wanted to buy is left unwrapped thereby permitting dust from the insulation to accumulate on the floor.

In view of all the evidence, or the absence of evidence, and the reasonable inferences that can be drawn therefrom, he has demonstrated that genuine issues of material fact exist on the question of whether Home Depot should have known that unwrapped insulation caused a hazard (insulation dust) to accumulate on the floor.  See Delgado v. Laundromax, Inc., 65 So. 3d 1087, 1090 (Fla. Dist. Ct. App. 2011) (citing Schaap v. Publix Supermarkets, Inc., 579 So.2d 831, 834 (Fla. Dist. Ct. App. 1991)) (constructive notice may be inferred from either “the amount of time a substance has been on the floor” or the “fact that the condition occurred with such frequency that the owner should have known of its existence.“) (emphasis added).

(Learn about slip and fall injury claims against Florida laundromats. Check out slip and fall injury claims with Publix Supermarkets in Florida).

While the mere presence of dust is not enough to establish constructive notice, there is additional evidence (e.g., the lack of inspections and the presence of unwrapped insulation) on which a jury could rely to conclude that Home Depot had constructive notice.[10]

The court allowed this case to continue on its way to a jury trial.  This is what the injured man wanted.  This does not mean that the man won his case.

It just means that a jury may get to decide it.  When a company, such as Home Depot, knows that the case can go to a jury, they usually make a settlement offer if they have not already.

The case is Enrique Linares v. The Home Depot, U.S.A., Inc., Dist. Court, SD Florida 2013.  This case is still good law.

It was cited in Berard v. Target Corporation, Court of Appeals, 11th Circuit 2014.  (Learn about Target slip and fall claims in Florida).  This is not my case.

Footnotes

[1] Home Depot relies on medical records and fire rescue reports to which Plaintiff objects on various evidentiary grounds. Consideration of these documents, however, does not eliminate the genuine issues of material fact that exist in this case. Therefore, it is unnecessary for the Court to consider them.

[2] Plaintiff testified that he told fire rescue that he slipped but he also testified that he was not sure if he used the word slipped. Home Depot points to statements to support the argument that Plaintiff did not say he slipped; he said his knees gave out.

There is, however, conflicting testimony on this point and the Court cannot make a determination as a matter of law.

[3] The insulation in Plaintiff’s cart was not wrapped in plastic.

[4] Plaintiff’s answers to interrogatories (questions that are answered under oath) state that he slipped on construction dust.

[5] Home Depot objected to the consideration of the injured man’s laboratory report analyzing the debris on his shoe because it allegedly was not disclosed by him.

He does not respond to this claim. In any event, the Court did not need to consider it reach the Court’s conclusion.

My thoughts: The injured man’s attorney likely paid a good amount of money for a laboratory report that analyzed Home Depot’s floors.  One of the 11 reasons that slip and fall victims hire a lawyer is so that a lawyer will advance the money to hire an expert witness, if necessary.

[6] In Home Depot’s reply memorandum, it states that he has misstated the facts and he did not see anything on the floor in the area of his fall.  The Court notes the following deposition testimony from Plaintiff:

Q: …Did you see what you believe to be insulation dust on the floor in the aisle before you had your accident?

A: Yes, I did.

. . . .

Q: Okay. And are you saying that you saw this insulation dust on the floor in the aisle before your accident happened?

A: Yes, of course.

[7]  The other examples provided by Home Depot have equally compelling support for Plaintiff’s version of events.

[8] Florida Statute § 768.0755 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.

[9] For the same reasons, the Court rejects Defendant’s reliance on Hamideh v. K-Mart Corp., 648 So. 2d 824 (Fla. Dist. Ct. App. 1995).

[10] The Court does not find persuasive the remaining cases relied upon by Home Depot.  In Sammon v. Target Corp., No. 8:11-cv-1258-T-30EAJ, 2012 WL 3984728 (M.D. Fla. Sept. 11, 2012), the court found there was no actual or constructive notice when the defendant’s employees were trained to continually inspect premises and there was no evidence that any employee failed to comply with its policy.

Here, there was no evidence of a policy. Moreover, unlike Peer v. Home Depot U.S.A., Inc., No. 2:11-cv-14356-KMM, 2012 WL 1453579 (S.D. Fla. Apr. 26, 2012), Home Depot did not submit deposition testimony stating that it had policies to prevent slip and falls, and there were no similar incident in the area where Plaintiff fell in the past ten years.

In Broz v. Winn-Dixie Stores, Inc., 546 So. 2d 83, 83 (Fla. Dist. Ct. App. 1989), in affirming the trial court, the appellate court relied on evidence that the floor was routinely inspected by the store manager and approximately 30 employees were “constantly on alert as to debris on the floor.” (Learn about slip and fall injury claims with Florida Winn Dixie stores).

Learn More about Home Depot personal injury claims in Florida

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