Jones v. Discount Auto Parts, Llc

MOTION for summary judgment

M.D. Fla.November 18, 2016

C A R L T O N F I E L D S J O R D E N B U R T , P. A . Suite 4200 - 100 Southeast Second Street - Miami - Florida 33131-9101 - 305.530.0050 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION LOLA JONES, CASE NO.: 6:16-CV-00138-RBD-KRS Plaintiff, v. DISCOUNT AUTO PARTS, LLC, a foreign limited liability company, Defendant. __________________________________/ DEFENDANT, DISCOUNT AUTO PARTS, LLC’S MOTION FOR SUMMARY JUDGMENT Defendant, Discount Auto Parts, LLC (“Discount”), by and through its undersigned attorneys, hereby files its Motion for Summary Judgment. INTRODUCTION On August 14, 2012, Lola Jones (“Jones” or “Plaintiff”) fell while on the premises of an auto parts store in Orlando, Florida operated by Discount. She alleges in her Complaint that her fall was caused by the presence of a foreign substance on the floor that she described as “tire wipe” or “wet tire.” (Doc. 2 at ¶ 6) Neither Jones, nor any other witness, saw or identified any type of substance, whether liquid or something else, on the floor at or about the time she fell. The mere occurrence of an accident does not give rise to an inference of negligence. The owner or possessor of property has a duty to maintain its premises in a reasonably safe condition and to warn invitees of dangers of which it has superior knowledge. Plaintiff is unable to show Discount breached its duty of care, and cannot identify any danger. Discount is entitled to summary judgment as a matter of law. At her deposition Jones testified under oath about the circumstances of her incident. When questioned, she stated unequivocally she did not know why Case 6:16-cv-00138-RBD-KRS Document 44 Filed 11/18/16 Page 1 of 10 PageID 509 CASE NO.: 6:16-CV-00138-RBD-KRS 2 C A R L T O N F I E L D S J O R D E N B U R T , P. A . Suite 4200 - 100 Southeast Second Street - Miami - Florida 33131-9101 - 305.530.0050 she had fallen, she did not see or feel any foreign substance on the floor of the establishment, and there was nothing on her shoes or clothes after the fall. Before a plaintiff may recover in a slip and fall case, Florida substantive law requires more than a showing of simply that the surface upon which the plaintiff fell was slick, smooth or wet. Thus Discount files this its motion for summary judgment due to Jones’s inability to present a prima facie case of negligence. MEMORANDUM OF LAW I. Statement of Undisputed Material Facts (“UMF”). 1. Jones had her accident in between the check-out counter and the front door while exiting the establishment. Deposition of Lola Jones taken September 20, 2016 (“Dep. Jones”) p. 261, lines 5-8. Pertinent pages (260-274) attached as Exhibit A. 2. In the location where she fell, Jones saw no merchandise on her right side, on her left side or in front of her. Dep. Jones p. 261 lines 18-23. 3. The area where she fell was an open floor without any obstructions. Dep. Jones p. 262 lines 2-4. 4. Jones did not see anything on the floor that appeared to be wet. Dep. Jones p. 262 lines 10-12. 5. Jones has no idea what caused her to fall. Dep. Jones p. 263 lines 16-18. 6. Jones did not know why she fell at the time. Dep. Jones p. 271 lines 3-4. 7. When Jones was on the floor she did not feel any sort of fluid or anything wet or sticky. Jones Dep. p. 271 lines 5-7. 8. When she fell Jones did not see anything on her shoes or clothes. Dep. Jones p. 271 lines 8-10. Case 6:16-cv-00138-RBD-KRS Document 44 Filed 11/18/16 Page 2 of 10 PageID 510 CASE NO.: 6:16-CV-00138-RBD-KRS 3 C A R L T O N F I E L D S J O R D E N B U R T , P. A . Suite 4200 - 100 Southeast Second Street - Miami - Florida 33131-9101 - 305.530.0050 9. Jones never saw any foreign substance of any kind on her shoes or clothes at any time after she fell. Dep. Jones p. 271 lines 11-14. 10. Jones does not know what she fell in or why she fell. Dep. Jones p. 271 lines 21- 23. II. Summary Judgment Standard Federal Rule of Civil Procedure 56(a), states in relevant part: The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The moving party bears the initial burden of meeting this standard, and establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). When determining whether the moving party has met this burden, the reviewing court must consider and view the evidence and all factual inferences in the light most favorable to the non-moving party. Batey v. Stone, 24 F.3d 1330, 1333 (11th Cir. 1994). If the movant has met its initial burden under Rule 56(a), the burden of production shifts and the non-moving party must establish the essential elements of its case on which it will bear the burden of proof at trial. Celotex, 477 U.S. at 322-323; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). More than just a scintilla of evidence must be presented by the non-moving party; there must be enough of a showing for a jury to reasonably find for that party. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). Rule 56 mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party bears the burden of proof. Celotex, 477 U.S. at 322-23 (1986). There is no requirement that the party moving for summary judgment support its motion with affidavits or Case 6:16-cv-00138-RBD-KRS Document 44 Filed 11/18/16 Page 3 of 10 PageID 511 CASE NO.: 6:16-CV-00138-RBD-KRS 4 C A R L T O N F I E L D S J O R D E N B U R T , P. A . Suite 4200 - 100 Southeast Second Street - Miami - Florida 33131-9101 - 305.530.0050 other similar materials negating the opponent’s claim. Id. at 323. Thus, a moving defendant need only point to an absence of proof on the non-movant’s part, and, at that point, the non- movant must designate specific facts showing that there is a genuine issue for trial. Id. at 324. Summary judgment is appropriate when “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The non- moving party may not rely solely upon controverted pleadings, but must set forth specific facts showing that a genuine factual issue exists that is material to his claims. “[T]he very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Id., Advisory Committee Notes. Consistent with that stated goal, the United States Supreme Court has recognized that “[o]ne of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses. . . .” Celotex, 477 U.S. at 323-24 (1986). See also Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989); Gonzalez v. Public Health Trust, No. 85-3545-CIV-HOEVELER, 1988 WL 168379, at *2 (S.D.Fla. Dec. 19, 1988). III. Argument In a diversity case such as this one, the federal court applies the substantive law of Florida. See Pendergast v. Sprint Nextel Corp., 592 F.3d 1119, 1132-33 (11th Cir. 2010). In order for a plaintiff in Florida to recover on a cause of action for negligence she must carry the burden of proof and establish (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 damages. Lake Parker Mall, Inc. v. Carson, 327 So.2d 121, 123 (Fla. 2d DCA 1976). It is apodictic in Florida that an owner or occupier of property owes two duties to an invitee: (1) to use reasonable care in Case 6:16-cv-00138-RBD-KRS Document 44 Filed 11/18/16 Page 4 of 10 PageID 512 CASE NO.: 6:16-CV-00138-RBD-KRS 5 C A R L T O N F I E L D S J O R D E N B U R T , P. A . Suite 4200 - 100 Southeast Second Street - Miami - Florida 33131-9101 - 305.530.0050 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 the invitee through the exercise of reasonable care. Maldonado v. Jack M. Berry Grove Corp., 351 So.2d 967, 970 (Fla. 1977). An owner of premises is not the insurer of the safety of an invitee. Harvey v. Bryant, 238 So.2d 462, 463 (Fla. 1st DCA 1970). There is no evidence in the record of what caused Jones to fall. As she was leaving the Discount store, she walked across an unobstructed area, and fell for no apparent reason. (UMF 1, 5, 6, 10) She did not see any type of liquid or foreign substance on the floor. (UMF 4, 7, 8, 10) At her deposition Jones testified under oath about the circumstances of her incident. When questioned, she stated unequivocally she did not know why she had fallen, she did not see or feel any foreign substance on the floor of the establishment, and there was nothing on her shoes or clothes after the fall. (UMF 4, 5, 6, 7, 8, 9, 10) The mere fact that she slipped and fell on the floor does not provide evidence of negligence on the part of Discount. See Evens v. Eastern Air Lines, Inc., 468 So.2d 1111 (Fla. 1st DCA 1985) (summary judgment affirmed where plaintiff, who “felt something wet,” saw nothing on the floor prior to her fall, and failed to demonstrate the defendant had actual or constructive knowledge of the alleged foreign substance, or that it even existed). A plaintiff claiming negligence must prove the store was aware, or should have been aware, of the allegedly dangerous condition that caused her injuries. Valles v. Target Corp., 2015 WL 1640326, No. 14-60723-Civ-Scola (S.D. Fla. Apr. 9, 2015) citing Publix Super Markets, Inc. v. Schmidt, 509 So.2d 977, 978 (Fla. 4th DCA 1987) (verdict reversed on appeal where plaintiff did not know what caused her to slip, how the condition, if any, was created, who caused it, how long it existed or that the store was responsible). Here there is a complete absence Case 6:16-cv-00138-RBD-KRS Document 44 Filed 11/18/16 Page 5 of 10 PageID 513 CASE NO.: 6:16-CV-00138-RBD-KRS 6 C A R L T O N F I E L D S J O R D E N B U R T , P. A . Suite 4200 - 100 Southeast Second Street - Miami - Florida 33131-9101 - 305.530.0050 of any evidence of the existence of a dangerous condition that caused Jones’s injuries. There is no evidence anything was on the floor. The deposition of Jones’s husband, William Hamilton (“Hamilton”) was taken on September 9, 2016. He testified about an alleged telephone conversation he claims to have had with a Discount employee named Alex. There is no corroborating evidence in the record of this supposed call. Hamilton testified to the hearsay statement that “Alex said that he had spilled Tire Wet on the floor. They tried to buff it out. They watched a few people slip but not fall.” Deposition of William Hamilton taken September 9, 2016, p. 27 lines 4-9, pertinent pages attached as Exhibit B. This hearsay and other claimed statements allegedly made by Alex are inadmissible, and do not create an issue of material fact. Plaintiff will argue the statement is admissible pursuant to Rule 801(d)(2)(D), Fed.R.Evid., which says a statement is not hearsay where the statement is offered against an opposing party and was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed. However, there is no evidence in the record that would tend to show that Alex’s alleged statement was concerning “a matter within the scope of” his employment relationship. In order to find an out-of-court statement admissible it is necessary that the content of the statement concern a matter within the scope of the declarant’s agency. Hill v. Spiegel, Inc., 708 F.2d 233, 237 (6th Cir. 1983). The inquiry then becomes whether Alex was speaking about a matter over which he had been granted authority as required by Rule 801(d). This necessary foundational threshold may be established by circumstantial evidence, but the statement itself may not be relied on to establish the alleged agency relationship. This is made clear by the language of Rule 801(d) itself. “The statement must be considered but does not by itself establish … the existence or scope of the relationship under (D).” In other words, Case 6:16-cv-00138-RBD-KRS Document 44 Filed 11/18/16 Page 6 of 10 PageID 514 CASE NO.: 6:16-CV-00138-RBD-KRS 7 C A R L T O N F I E L D S J O R D E N B U R T , P. A . Suite 4200 - 100 Southeast Second Street - Miami - Florida 33131-9101 - 305.530.0050 Jones may not rely on the statement to establish that Alex was speaking about a matter within the scope of his employment. This provision requiring independent evidence in the record demonstrating the scope of the agency was clearly explained in the case of United States v. Portsmouth Paving Corp., 694 F.2d 312, 321 n. 12 (4th Cir. 1982). “The evidence necessary to establish the existence and scope of the agency relationship must be independent of the statement attributed to the agent. In other words, to avoid bootstrapping, agency must be demonstrated without the help of the statement sought to be admitted.” Id. The only independent evidence concerning Alex’s relationship with Discount is in Discount’s answers to Jones’ interrogatories where he is listed as “Salesperson.” Discount’s answers to interrogatories are attached as Exhibit C. No inference may be drawn from that description that Alex was in some way responsible for either spilling the substance on the floor, or for cleaning it up. Absent any evidence or inference, no conclusion may be reached that the statement made by Alex was concerning a matter within the scope of his employment, and therefore the statement does not qualify as a non-hearsay statement under 801(d)(2)(D), and thus does not create a genuine issue of material fact. Even assuming for the sake of argument that Alex’s statement were admissible, a careful analysis of it still affords the Plaintiff no relief. The statement itself is that the Tire Wet was buffed out. The plain meaning of this is that it was cleaned up and the floor was buffed, or polished. The only inference that could be drawn from this is that the floor had no foreign substance on it, but it may have been slick due to the buffing. Under Florida law the mere fact that a floor is slippery does not constitute a dangerous condition. In the case of Gordon v. Target Corp., 2008 WL 2557509, No. 07-80412-CIV (S.D. Fla. June 23, 2008), the plaintiff had no idea what caused her to fall, except that the floor was “super slick.” Noting that the fact that a floor Case 6:16-cv-00138-RBD-KRS Document 44 Filed 11/18/16 Page 7 of 10 PageID 515 CASE NO.: 6:16-CV-00138-RBD-KRS 8 C A R L T O N F I E L D S J O R D E N B U R T , P. A . Suite 4200 - 100 Southeast Second Street - Miami - Florida 33131-9101 - 305.530.0050 was slick does not make the owner liable, the Court entered summary judgment, citing Williams v. Holland, 205 So.2d 682, 683 (Fla. 1st DCA 1968) for the proposition that “the right to recover in a slip and fall case requires more than a showing simply that the surface upon which the injured fell was slick, smooth or wet.” In the case of Feinman v. Target Corp., 2012 WL 6061745, No. 11-62480-CIV (S.D. Fla. Dec. 6, 2012), Ms. Feinman did not know what caused her to slip. Commenting that the plaintiffs had no idea what caused Ms. Feinman to slip, and there was no record evidence of any other person, employee or customer who made such an observation, District Judge Marra entered summary judgment because the “[p]laintiff’s case [was] grounded in no more than a guess or speculation and not founded on observable facts or reasonable inferences drawn from the record.” Feinman 2012 WL 6061745 at *5. Similarly, in the case Williams v. Sears Roebuck & Co., 866 So.2d 122 (Fla. 4th DCA 2004), plaintiff slipped and fell, but could not identify any substance on the floor that she had slipped on. The court noted that while it was not necessary that the plaintiff identify with specificity the nature of the substance that caused her fall, Sears’ motion for summary judgment could not be defeated merely by asserting that because she slipped it must be assumed or presumed there had to be something of a foreign nature on the floor. Id. at 123. In other words, as recognized by the United States Supreme Court “the mere proof an ‘accident’ (using the word in the loose and popular sense) does not raise any presumption of negligence.” Sweeney v. Erving, 228 U.S. 233, 238 (1913), accord Emmons v. Baptist Hosp., 478 So.2d 440, 442 (Fla. 1st DCA 1985) (“it is fundamental that the mere occurrence of an accident does not give rise to an inference of negligence and that the plaintiff must show that the condition complained of was an unreasonable hazard”). Case 6:16-cv-00138-RBD-KRS Document 44 Filed 11/18/16 Page 8 of 10 PageID 516 CASE NO.: 6:16-CV-00138-RBD-KRS 9 C A R L T O N F I E L D S J O R D E N B U R T , P. A . Suite 4200 - 100 Southeast Second Street - Miami - Florida 33131-9101 - 305.530.0050 Lacking any evidence that Alex was speaking about a matter within the scope of his employment, Plaintiff is left only with her own testimony that she has no idea what caused her to fall. This is not enough to defeat Discount’s Motion for Summary Judgment under Florida law. As in the cited cases of Harvey, Evens, Valles, Publix Super Markets, Inc., Gordon, Williams, Sweeny, and Emmons there is no evidence to establish a prima facie case of negligence that caused Jones to fall in the Discount store, and ipso facto, no evidence of actual or constructive knowledge on the part of Discount. As recognized by the United States Supreme Court and the Florida Supreme Court, the mere occurrence of an accident will not give rise to an inference of negligence. The only admissible evidence in this record is that Jones fell, which is insufficient as a matter of law to defeat Discount’s motion for summary judgment. IV. Conclusion Discount is entitled to the entry of summary judgment as a matter of law. A store is not responsible to every person who might be hurt while shopping, and is not an insurer of the safety of its customers. Before Jones can recover from Discount there must be some admissible evidence in the record that Discount was negligent. The alleged statement by Alex to Hamilton is inadmissible hearsay. Negligence will not be inferred from the mere fact that Jones slipped and fell, and she is unable to show that Discount failed to do something that a reasonable store would have done. There is no evidence any foreign substance existed, nor that Discount had actual or constructive knowledge of any dangerous condition. Discount is entitled to entry of summary final judgment. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on November 18, 2016 I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document Case 6:16-cv-00138-RBD-KRS Document 44 Filed 11/18/16 Page 9 of 10 PageID 517 CASE NO.: 6:16-CV-00138-RBD-KRS 10 C A R L T O N F I E L D S J O R D E N B U R T , P. A . Suite 4200 - 100 Southeast Second Street - Miami - Florida 33131-9101 - 305.530.0050 is being served this day to David S. Oliver, Esq., Law Offices of David S. Oliver, 424 East Central Boulevard, Suite 228, Orlando, Florida 32801 and John Dill, Esq., Morgan & Morgan, 20 North Orange Avenue, Suite 1600, Orlando, Florida 32801, attorneys for Plaintiff, via transmission of Notices of Electronic Filing generated by CM/ECF. Respectfully submitted, /s/ Emmet J. Schwartzman Emmet J. Schwartzman Florida Bar No. 710490 CARLTON FIELDS JORDEN BURT, P.A. P.O. Box 019101 Miami, FL 33131-9101 Telephone: (305) 530-0050 Facsimile: (305) 530-0055 Email: eschwartzman@carltonfields.com Johanna W. Clark CARLTON FIELDS JORDEN BURT, P.A. 450 S. Orange Avenue, Suite 500 Orlando, Florida 32801-3336 Telephone: (407) 849-0300 Facsimile: (407) 648-9099 Email: jclark@carltonfields.com Attorneys for Defendant Discount Auto Parts, LLC Case 6:16-cv-00138-RBD-KRS Document 44 Filed 11/18/16 Page 10 of 10 PageID 518 EXHIBIT A Case 6:16-cv-00138-RBD-KRS Document 44-1 Filed 11/18/16 Page 1 of 20 PageID 519 1 2 3 LOLA JONES vs DISCOUNT AUTO PARTS, LLC LOLA JONES VOLUME II on 09/20/2016 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION ORIGINAL CASE NO.: 6:16-CV-138-0RL-37-KRS 4 LOLA JONES, 5 Plaintiff, 6 VOLUME II vs. PAGES 128 thru 285 7 DISCOUNT AUTO PARTS, LLC, 8 a foreign corporation, 9 Defendant. 10 11 12 * * * * * * * * * * * VIDEO-RECORDED DEPOSITION OF: LOLA JONES * DATE: September 20, 2016 13 TIME: 10:06 a.m. 14 * PLACE: 15 450 South Orange Avenue Suite 500 Orlando, Florida 16 REPORTED BY: DONNA FONTAINE * * 17 Court Reporter, Notary Public 18 * 19 20 21 22 23 24 25 * * * * * First Choice Reporting & Video Services www.firstchoicereporting.com Case 6:16-cv-00138-RBD-KRS Document 44-1 Filed 11/18/16 Page 2 of 20 PageID 520 1 LOLA JONES vs DISCOUNT AUTO PARTS, LLC LOLA JONES VOLUME II on 09/20/2016 Q And you know that for a fact because why? Page 260 2 A Because I think I would remember if they had a 3 big cone in the floor. 4 Q Okay. And so, when you walked out the store, 5 you got a clear view. There is no warning cones at all, 6 right? 7 A Once I walked out of the store? 8 Q As you're walking toward the exit to the store. 9 A Correct. 10 Q You have got glue in one hand, Dr. Pepper in 11 the other. And we don't know where your phone is, 12 right? 13 A Correct. 14 Q And you don't know whether you were making a 15 call at the time or not -- 16 A I know I wasn't. 17 Q -- because you don't remember? 18 A I know I wasn't making a call. 19 Q But you don't know whether you were receiving a 20 text or looking at your phone? 21 A I know I was not. 22 Q Well, let me ask you this: Where was your -- 23 how do you not how do you not know you didn't have 24 your phone at the time in your hand? 25 A Because I know I wasn't on the phone, texting First Choice Reporting & Video Services www .firstchoicereporting.com Case 6:16-cv-00138-RBD-KRS Document 44-1 Filed 11/18/16 Page 3 of 20 PageID 521 LOLA JONES vs DISCOUNT AUTO PARTS, LLC LOLA JONES VOLUME II on 09/20/2016 Page 261 1 or calling, but I don't know exactly where my phone was 2 at that time. 3 Q Around 6:00 p.m. that day, right? 4 A That's what I think. Yes. 5 Q And so you just -- you•re walking out toward 6 the front door. And how far from the counter did you 7 have your accident? 8 A In between the counter and the front door. 9 Q Okay. And how far from the counter? Like 10 halfway? 11 A I would say halfway, yes. 12 Q Halfway. Smack in the middle. 13 And was there any merchandise to the left or 14 right of you when you fell? 15 A I don't know. 16 Q Was there anything for you to hold onto? 17 A No. 18 Q Did you see any merchandise on your left? 19 A No. 20 Q Did you see any merchandise on your right? 21 A No. 22 Q Did you see any merchandise in front of you? 23 A No. 24 Q Were there tables or shelves or pallets or any 25 other devices displaying merchandise? First Choice Reporting & Video Services www.firstchoicereporting.com Case 6:16-cv-00138-RBD-KRS Document 44-1 Filed 11/18/16 Page 4 of 20 PageID 522 1 2 LOLA JONES vs DISCOUNT AUTO PARTS, LLC LOLA JONES VOLUME II on 09/20/2016 A Not that I know. Q So it was just an open floor without any 3 obstructions at all, right? 4 A Yes. Page 262 5 Q And so, you just stepped forward, and at some 6 point you go down; is that your testimony? 7 A Yes. 8 Q And it came as a complete surprise to you? 9 A Yes. 10 Q And you didn't see anything on the floor that 11 looked wet or anything? 12 A No. 13 Q And then you say in your answers to 14 interrogatories here, 11 1 was walking away, holding one 15 item in each hand, a soda and glue, when my legs flew 16 out from under me, and I fell very hard on my right 17 side, with my ankle, hip, and head all coming in very 18 hard contact with the floor surface. •• 19 20 A 21 Q 22 A 23 Q 24 know? 25 A All right. So is that an accurate description? Yes. Your head hit the surface; is that correct? I'm not sure if my head hit or not. So ankle and hip, but not head? Or you don•t I don't know. First Choice Reporting & Video Services www.firstchoicereporting.com Case 6:16-cv-00138-RBD-KRS Document 44-1 Filed 11/18/16 Page 5 of 20 PageID 523 LOLA JONES vs DISCOUNT AUTO PARTS, LLC LOLA JONES VOLUME II on 09/20/2016 Page 263 1 Q You say "very hard contact 11 • How do you -- how 2 do you characterize 11very hard contact"? 3 A Because I fell so fast. I didn't have time to 4 catch myself. 5 Q And now when you say you fell hard on your 6 right side, with my ankle hip and head all coming in 7 very hard contact with the floor, can you -- can you 8 describe to me any better exactly how you fell? Did 9 your legs go flying out from under you, or did one just 10 slip, or what exactly happened there? 11 A I was just walking, and the next thing you 12 know, I'm on the ground. It happened really fast, and I 13 didn't -- I fell so fast that I didn't even have time to 14 drop the things in my hand and put my arm down to brace 15 myself. 16 Q So is it fair to say that, from what you saw 17 beforehand, you have no idea what caused you to fall? 18 A Right. 19 Q Now, once you're on the floor, did you observe 20 any surveillance cameras? 21 A No. 22 Q Did you ever observe any surveillance cameras 23 in the store? 24 A 25 Q No. Did you look for them? First Choice Reporting & Video Services www.firstchoicereporting.com Case 6:16-cv-00138-RBD-KRS Document 44-1 Filed 11/18/16 Page 6 of 20 PageID 524 1 LOLA JONES vs DISCOUNT AUTO PARTS, LLC LOLA JONES VOLUME II on 09/20/2016 A No. Page 264 2 Q It says here, "I was very embarrassed, as the 3 fall occurred in the line of sight of two employees 4 known to me from prior store visits, as Pedro and Alex." 5 What prior store visits are you talking about? 6 A I don't remember that at all. 7 Q Okay. So that's not true? 8 A No. 9 Q Why did you put that here? 10 A I don't know. 11 Q And when I asked you whether this was correct 12 and true, why did you say it was? 13 A I didn't -- I did not know them before this 14 happened. 15 Q So you had not known them from any prior store 16 visits, even though that's what you swore under oath, 17 correct? 18 A Correct. 19 Q So you call that just an honest mistake? 20 A Yes. 21 Q How do you explain this language in here? 22 A What language? 23 Q That you knew them from prior store visits as 24 Pedro and Alex. 25 A I mean, my husband goes there all the time. First Choice Reporting & Video Services www.firstchoicereporting.com Case 6:16-cv-00138-RBD-KRS Document 44-1 Filed 11/18/16 Page 7 of 20 PageID 525 1 LOLA JONES vs DISCOUNT AUTO PARTS, LLC LOLA JONES VOLUME II on 09/20/2016 Q I'm asking you what you know when you signed 2 off on this. 3 A I don't know. 4 Q So that was an error on your part? 5 A Yes. Page265 6 Q Did it is it something that you thought you 7 remembered, but now you know it's wrong? I'm just 8 trying to understand how this ends up in your answers to 9 interrogatories. 10 A I don't know how that ended up in here, because 11 I did not know them before this. 12 Q You had never seen them in your life, right? 13 A No. 14 Q And under oath you said you knew them as Pedro 15 and Alex? 16 A I don't know them. 17 Q All right. Then you say, "Both Pedro and Alex 18 approached me and asked if I was okay." 19 You didn't know which one was Pedro and which 20 was Alex, did you? 21 A 22 Q 23 A 24 Q 25 A At that time, no. Did you ever learn who they were? Eventually, yes. How? Because my husband knew them. First Choice Reporting & Video Services www.firstchoicereporting.com Case 6:16-cv-00138-RBD-KRS Document 44-1 Filed 11/18/16 Page 8 of 20 PageID 526 1 2 LOLA JONES vs DISCOUNT AUTO PARTS, LLC LOLA JONES VOLUME II on 09/20/2016 Q Which one is which? A Alex is shorter and younger, and Pedro is Page266 3 taller. 4 Q So you know them because of their height? 5 A And they looked different, yes. 6 Q And you haven't seen them since August 14, 7 2012, right? 8 A Correct. 9 Q So you didn't know them from before, you never 10 saw them afterwards, but you feel like you know who 11 Pedro and Alex are? 12 A Because of this, yes. 13 Q Because of what your husband told you, right? 14 A Yes. 15 Q All right. You said: 11 I was still very 16 embarrassed, and I just wanted to get out of there, so I 17 quickly got to my feet and said I was okay and declined 18 any further assistance." 19 Is that all correct? 20 A 21 Q 22 A 23 Q 24 A 25 Q Yes. Okay. You didn't say you were hurt at all? No. You didn't ask for any assistance? No. And, in fact, were you hurt? Did you feel like First Choice Reporting & Video Services www.firstchoicereporting.com Case 6:16-cv-00138-RBD-KRS Document 44-1 Filed 11/18/16 Page 9 of 20 PageID 527 LOLA JONES vs DISCOUNT AUTO PARTS, LLC LOLA JONES VOLUME II on 09120/2016 1 you were hurt at the time? 2 A I was in shock at that moment. 3 Q And you didn 1 t think to just gather your 4 thoughts and maybe ask for help? 5 A No. I was very embarrassed. Page 267 6 Q It says, "Although I was already experiencing 7 pain in my hip. 11 8 A I had bruises. 9 Q So I 1m not saying -- did you see your bruises? 10 A Yes. 11 Q At that time, in that store? 12 A No. 13 Q All right. That 1 s what I 1m asking. 14 A I had clothes on. 15 Q You said, 11Although I was already experiencing 16 pain in my hips. 11 So when they asked you if you were 17 okay, you did not tell them the truth, correct? 18 A Correct. 19 Q All right. And, in fact, you say here, 11 The 20 very next day the pain in my hip and ankle was worse, so 21 I visited Central Florida Injury Southwest ... 22 That 1 s not the full story, is it? You called a 23 paralegal first, right? 24 25 MR DILL: Object to the form. Go ahead. First Choice Reporting & Video Services www.firstchoicereporting.com Case 6:16-cv-00138-RBD-KRS Document 44-1 Filed 11/18/16 Page 10 of 20 PageID 528 LOLA JONES vs DISCOUNT AUTO PARTS, LLC LOLA JONES VOLUME II on 09/20/2016 1 BY MR. SCHWARTZMAN: 2 Q Is that correct? 3 A I think I texted him. 4 Q And, in fact, your husband had made a phone 5 call, right? 6 A Yes. 7 Q When did he make that phone call? 8 A I think it was the afternoon that I fell. 9 Q Sometime after 6:00p.m.? 10 A Yes. Page 268 11 Q And when and where did he -- when and why did 12 he call? 13 A I don't know where he was when he called, but 14 he called after I fell, because I told him what 15 happened. 16 Q But where was he when you fell? 17 A He was working. 18 Q And where was he working? 19 A I'm not sure. 20 Q What was his job at the time? 21 A He was remodeling the house. 22 Q All right. And did he come immediately to your 23 assistance? 24 A 25 home. I don't know how long after it was that he got First Choice Reporting & Video Services www.firstchoicereporting.com Case 6:16-cv-00138-RBD-KRS Document 44-1 Filed 11/18/16 Page 11 of 20 PageID 529 1 LOLA JONES vs DISCOUNT AUTO PARTS, LLC LOLA JONES VOLUME II on 09/20/2016 Q So what were his typical hours? Did he work 2 beyond six typically? A 3 It•s never a set schedule. Q 4 When did you first call him? A 5 Right after I fell, when I got in the car. Q 6 When you got into the Hummer -- 7 Urn-hum. A 8 Q -- you called him? Yes? 9 A Yes. 10 Q All right. And he answered his phone? Page 269 11 A I don•t think he answered when I first called 12 him. Q 13 So then you got in your car and you started the 14 engine, correct? 15 A Yes. 16 Q And the phone is where? 17 A I don•t know where the maybe -- I mean, I 18 don•t know where it was at that time. 19 Q Did you find the phone in your car when you got 20 to the car? 21 A Yes. 22 Q So it was already -- it was sitting in your car 23 at the time? 24 A 25 Q I don•t know where the phone was. Did you pull it out of your pocket or anything First Choice Reporting & Video Services www.firstchoicereporting.com Case 6:16-cv-00138-RBD-KRS Document 44-1 Filed 11/18/16 Page 12 of 20 PageID 530 LOLA JONES vs DISCOUNT AUTO PARTS, LLC LOLA JONES VOLUME II on 09/20/2016 1 like that? 2 A I don't know. 3 Q So you had it, though; you had it somewhere? 4 A Yes. 5 Q Because you called your husband? 6 A Yes. 7 Q And you don't know whether he answered. 8 At what point in time did you first see him 9 after the accident? Page 270 10 A I don't know what time he got horne that night. 11 Q Was it before 9:00 p.m.? 12 A Yes. 13 Q What time? 14 A I don't know. 15 Q How long before nine, if you know? 16 A I don't know. 17 Q When did he make the phone call? 18 A I don't know. 19 Q Why did he make the phone call? 20 A Because I was injured. 21 Q Tell me exactly what you told him on the phone. 22 A I said I went to Advance, I went to get the 23 glue, and I fell on the floor. 24 Q 25 A That is all you said? I think so. First Choice Reporting & Video Services www.firstchoicereporting.com Case 6:16-cv-00138-RBD-KRS Document 44-1 Filed 11/18/16 Page 13 of 20 PageID 531 1 2 3 4 5 LOLA JONES vs DISCOUNT AUTO PARTS, LLC LOLA JONES VOLUME II on 09/20/2016 Q Did you tell him why you fell? A No. Q Did you know why you fell at the time? A No. Page 271 Q Did you -- when you were on the floor, did you 6 feel anything wet, sticky, or any sort of fluid? 7 A No. 8 Q Did you see anything on your shoes or clothes 9 at the time? 10 A No. 11 Q Did you ever see anything of any foreign 12 substance on your shoes or clothes at any point after 13 you fell? 14 A No. 15 Q And to this very day, you don•t know what you 16 fell in, do you? 17 A No. 18 Q Or why? 19 MR DILL: Object to the form. 20 BY MR. SCHWARTZMAN: 21 Q Is that correct, you don•t know what you fell 22 in and why? 23 A 24 25 Correct. MR DILL: Object to the form. First Choice Reporting & Video Services www.firstchoicereporting.com Case 6:16-cv-00138-RBD-KRS Document 44-1 Filed 11/18/16 Page 14 of 20 PageID 532 LOLA JONES vs DISCOUNT AUTO PARTS, LLC LOLA JONES VOLUME II on 09/20/2016 1 BY MR. SCHWARTZMAN: 2 Q And the only reason you say, in answer to 3 number seven, this thing about Tire Wet or Tire Shine, 4 is what? Page272 5 A Because that is what they said that I fell in. 6 Q So your husband called who, Pedro or Alex? 7 A Alex. 8 Q Was that before or after you saw your husband 9 after the accident? 10 A I don't know if he called them before or not. 11 Q He may have been at work at the time? 12 A Maybe. 13 Q You didn't see him make the phone call; is that 14 correct? 15 A Not that I can remember, no. 16 Q And you don't remember at home, looking at your 17 clothes and seeing if there was anything wet or 18 discolored about your clothes, right? 19 A 20 Q 21 A 22 Q 23 A 24 Q 25 A No, correct. What part of your jeans did you fall On; The Yes. Your Yes. like, the side, in the back. right side like your thigh area? And -- well, not my thigh, hip, your butt? First Choice Reporting & Video Services www.firstchoicereporting.com but on? my hip. Case 6:16-cv-00138-RBD-KRS Document 44-1 Filed 11/18/16 Page 15 of 20 PageID 533 1 LOLA JONES vs DISCOUNT AUTO PARTS, LLC LOLA JONES VOLUME II on 09/20/2016 Q And what about your ankle? Page 273 2 A Yes. I fell on -- everything was on the right 3 side, on my right elbow. 4 Q Okay. So your ankle the bone -- your 5 anklebone actually hit the floor 6 A Yes. 7 Q -- is that correct? 8 And did your flip-flops stay on? 9 A Yes. 10 Q At all times? 11 A Yes. 12 Q And would -- did one foot slip, or two? 13 A Both. 14 Q So both feet came out from under you. Did you 15 fall forward or backward or to the side? What happened? 16 A I think I fell to the right side. 17 Q And did both your feet slip at the same time? 18 A I believe so. 19 Q And once you got word that your husband had 20 called -- or how did you get word that your husband had 21 called Advance Auto Parts? 22 A He told me. 23 Q When did he tell you? Was it on the phone or 24 in person? 25 A I don't know. First Choice Reporting & Video Services www.firstchoicereporting.com Case 6:16-cv-00138-RBD-KRS Document 44-1 Filed 11/18/16 Page 16 of 20 PageID 534 LOLA JONES vs DISCOUNT AUTO PARTS, LLC LOLA JONES VOLUME II on 09/20/2016 Page274 1 Q Did he tell you he was doing that beforehand? 2 A I don't remember that. 3 Q Now, did you have any independent information 4 yourself about whether there was any foreign substance 5 on the floor? 6 A No. 7 Q And even when you fell, you don•t know why you 8 fell, correct? 9 A Correct. 10 Q And after you fell, you were unable to identify 11 any foreign substance on the floor? 12 A Correct. 13 Q Where, in relation to any shelf -- what was the 14 closest shelf to you? 15 A I don't know. 16 Q Were you near a shelf? 17 A Not that I -- I don't know. 18 Q And is it your testimony that there were 19 absolutely no warning cones whatsoever in the general 20 vicinity of where you fell? 21 A Correct. 22 Q And the area where you fell, were there any 23 products like Tire Wet or Tire Shine on any of the 24 shelves anywhere near where you were? 25 MR DILL: Object to the form. First Choice Reporting & Video Services www.firstchoicereporting.com Case 6:16-cv-00138-RBD-KRS Document 44-1 Filed 11/18/16 Page 17 of 20 PageID 535 1 LOLA JONES vs DISCOUNT AUTO PARTS, LLC LOLA JONES VOLUME II on 09/20/2016 THE WITNESS: I don't know. 2 BY MR. SCHWARTZMAN: 3 Q And the only reason you're telling me today, 4 under oath and answers to interrogatories, that you 5 were -- that you fell on Tire Wet or Tire Shine is 6 because your husband told you that, right? 7 A Yes. 8 Q And the only reason he knows that is why? 9 A Because Alex told him that. Page 275 10 Q And what exactly did your husband tell you that 11 Alex told you? 12 A Alex told my husband that earlier that day Tire 13 Shine was spilled on the floor. And they buffed the 14 floor to try to clean it up, that a couple of people 15 slipped before me, but no one actually fell. 16 Q And that's from Alex only, not anybody else? 17 A Yes. 18 Q Your husband only made one phone call; is that 19 correct? 20 A I believe so. 21 Q Did you or anyone else, friend or family, make 22 any phone calls to Advance Auto Parts within the first 23 24 hours after your incident? 24 A 25 Q I'm not sure. Who else would have been able to make a phone First Choice Reporting & Video Services www.firstchoicereporting.com Case 6:16-cv-00138-RBD-KRS Document 44-1 Filed 11/18/16 Page 18 of 20 PageID 536 LOLA JONES vs DISCOUNT AUTO PARTS, LLC LOLA JONES VOLUME II on 09/20/2016 1 C E R T I F I C A T E 2 STATE OF FLORIDA 3 COUNTY OF ORANGE 4 I, Donna Fontaine, REGISTERED PROFESSIONAL 5 REPORTER and Notary Public in and for the State of 6 Florida at large, hereby certify that I was 7 authorized to and did stenographically report the 8 foregoing deposition of LOLA JONES; that a review of 9 the transcript was not requested; and that the 10 foregoing pages 1 through 282, is a true and 11 complete record of my stenographic notes and 12 recordings thereof. 13 I FURTHER CERTIFY that I am neither an 14 attorney nor counsel for the parties to this cause, 15 nor a relative or employee of any attorney or party 16 connected with this litigation, nor am I financially 17 interested in the outcome of this action. 18 DATED THIS 26th day of September, 2016, at 19 20 21 22 23 24 25 Orlando, Orange County, Florida. 9~(}J~ Donna Fontaine, RPR Notary Public - State of Florida My Commission Expires: 11-17-18 Commission No.: FF 165384 First Choice Reporting & Video Services www.firstchoicereporting.com Page 284 Case 6:16-cv-00138-RBD-KRS Document 44-1 Filed 11/18/16 Page 19 of 20 PageID 537 LOLA JONES vs DISCOUNT AUTO PARTS, LLC LOLA JONES VOLUME II on 09/20/2016 1 CERTIFICATE OF OATH 2 3 STATE OF FLORIDA 4 COUNTY OF ORANGE 5 6 I, DONNA FONTAINE, REGISTERED PROFESSIONAL 7 Notary Public, State of Florida, certify that the 8 witness, LOLA JONES, personally appeared before me 9 on the 20th day of September, 2016 and was duly 10 sworn. 11 WITNESS my hand and official seal dated 12 this 26th day of September, 2016. 13 14 15 16 17 18 19 20 21 22 23 24 25 Identification: or Type of Personally Known: No Produced Identification: No IdentGc~duc~'~ Donna Fontaine, Court Reporter Notary Public - State of Florida My Commission Expires: 11-17-18 Commission No.: FF 165384 First Choice Reporting & Video Services www.firstchoicereporting.com Page 285 Case 6:16-cv-00138-RBD-KRS Document 44-1 Filed 11/18/16 Page 20 of 20 PageID 538 EXHIBITB Case 6:16-cv-00138-RBD-KRS Document 44-2 Filed 11/18/16 Page 1 of 7 PageID 539 '··· 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 " 25 ' LOLA JONES vs DISCOUNT AUTO PARTS, LLC WILLIAM JOSEPH HAMILTON on 09/09/2016 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION ORIGINAL CASE NO.: 6:16-CV-138-0RL-37-KRS LOLA JONES, Plaintiff, VS. DISCOUNT AUTO PARTS, LLC, a foreign corporation, Defendant. * * * * * * * * * * * * * DEPOSITION OF: DATE: TIME: PLACE: REPORTED BY: WILLIAM JOSEPH HAMILTON September 9, 2016 12:42 p.m. 450 South Orange Avenue Suite 500 Orlando, Florida DONNA FONTAINE * * Court Reporter, Notary Public * * * * * * First Choice Reporting & Video Services www.firstchoicereporting.com Case 6:16-cv-00138-RBD-KRS Document 44-2 Filed 11/18/16 Page 2 of 7 PageID 540 LOLA JONES vs DISCOUNT AUTO PARTS, LLC WILLIAM JOSEPH HAMILTON on 09/09/2016 1 say that you, William Joseph Hamilton, will have Page 26 2 knowledge of statements made to you and to your wife by 3 employees of Discount Auto Parts regarding prior 4 knowledge of the spill and failure to warn. 5 A Oh. Okay. You're talking about Alex. 6 Q I had asked you all the personal conversations 7 you had with any member of the store, right? 8 A Personal conversations? 9 Q Any conversation other than buying something or 10 returning something. And now you•re saying you have had 11 conversations with someone other than Dave? 12 A One. 13 Q Okay. Well, that's what I'm trying to find 14 out. 15 A Okay. Misunderstood. 16 Q So have I left out anything about Dave -- have 17 you left out anything about Dave so far? 18 A Not to my knowledge. No. 19 Q Now, you left out Alex now? 20 A Alex, yes. 21 Q All right. So you are remembering Alex now? 22 A Yes. 23 Q All right. What do you remember about your 24 communications with Alex other than buying something or 25 returning something? First Choice Reporting & Video Services www.firstchoicereporting.com Case 6:16-cv-00138-RBD-KRS Document 44-2 Filed 11/18/16 Page 3 of 7 PageID 541 1 2 LOLA JONES vs DISCOUNT AUTO PARTS, LLC WILLIAM JOSEPH HAMILTON on 09/09/2016 A The day my wife fell in the store. Q Tell me what you know about when and how that 3 communication was made and what was said. 4 A I called the store after she fell. Alex 5 answered the phone. 6 I asked Alex, "What happened?" 7 Alex said that he had spilled Tire Wet on the 8 floor. They tried to buff it out. They watched a few 9 people slip, but not fall. 10 And he said that she slipped, and she fell 11 where that Tire Wet was. And he asked me how she was 12 how she was. Page 27 13 Q Tell me what time of the day that conversation 14 was. 15 A I do not recall. 16 Q Was it morning? Was it noon? Was it night? 17 A It would be after I got off of work, so... I 18 left work, so I'm not exactly sure of the time. 19 Q 20 A 21 Q 22 A 23 Q 24 A 25 Q What time did you get off of work? Not exactly sure. What time ordinarily did you get off of work? Ordinarily anywhere from five to seven. And when did your wife go to the store? While I was at work. So sometime before five, is your testimony, she First Choice Reporting & Video Services www.firstchoicereporting.com Case 6:16-cv-00138-RBD-KRS Document 44-2 Filed 11/18/16 Page 4 of 7 PageID 542 LOLA JONES vs DISCOUNT AUTO PARTS, LLC WILLIAM JOSEPH HAMILTON on 09/09/2016 1 went to the store? 2 A I don't have knowledge of the exact time. 3 Q Well, you said you called after her accident, 4 right? 5 A Yes. 6 Q On the same day as the accident, right? 7 A Yes. 8 Q And you called as soon as you knew about the 9 accident, right? 10 A Yes. Page 28 11 Q Did you know about the accident before you came 12 home from work, or after? 13 A Before. 14 Q And did you make the phone call before or after 15 you came home? 16 A I don't recall. 17 Q How quickly did you make that phone call? 18 A Don't recall. 19 Q Why did you make the phone call? 20 A To see what may -- what caused her to fall. 21 Q Why did you need to know that? 22 A My wife got hurt, and I wanted to know how -- 23 why she got hurt. 24 Q 25 My question is why. MR. DILL: Object to the form. First Choice Reporting & Video Services www.firstchoicereporting.com Case 6:16-cv-00138-RBD-KRS Document 44-2 Filed 11/18/16 Page 5 of 7 PageID 543 LOLA JONES vs DISCOUNT AUTO PARTS, LLC WILLIAM JOSEPH HAMIL TON on 09/09/2016 1 C E R T I F I C A T E 2 STATE OF FLORIDA 3 COUNTY OF ORANGE 4 I, Donna Fontaine, REGISTERED PROFESSIONAL 5 REPORTER and Notary Public in and for the State of 6 Florida at large, hereby certify that I was 7 authorized to and did stenographically report the 8 foregoing deposition of WILLIAM JOSEPH HAMILTON; 9 that a review of the transcript was not requested; 10 and that the foregoing pages 1 through 135, is a 11 true and complete record of my stenographic notes 12 and recordings thereof. 13 I FURTHER CERTIFY that I am neither an 14 attorney nor counsel for the parties to this cause, 15 nor a relative or employee of any attorney or party 16 connected with this litigation, nor am I financially 17 interested in the outcome of this action. 18 DATED THIS 18th day of September, 2016, at 19 20 21 22 23 24 25 Orlando, Orange County, Florida. 9UMtot eft~ Donna Fontaine, RPR Notary Public - State of Florida My Commission Expires: 11-17-18 Commission No.: FF 165384 First Choice Reporting & Video Services www.firstchoicereporting.com Page 136 Case 6:16-cv-00138-RBD-KRS Document 44-2 Filed 11/18/16 Page 6 of 7 PageID 544 1 2 LOLA JONES vs DISCOUNT AUTO PARTS, LLC WILLIAM JOSEPH HAMILTON on 09/09/2016 CERTIFICATE OF OATH 3 STATE OF FLORIDA 4 COUNTY OF ORANGE 5 6 I, DONNA FONTAINE, REGISTERED PROFESSIONAL 7 Notary Public, State of Florida, certify that the 8 witness, WILLIAM JOSEPH HAMILTON, personally 9 appeared before me on the 9th day of September, 2016 10 and was duly sworn. 11 WITNESS my hand and official seal dated 12 this 18th day of September, 2016. 13 14 15 16 17 18 19 20 21 22 23 24 25 Identification: or Type of Personally Known: No Produced Identification: No IdentQc~ducl~ Donna Fontaine, Court Reporter Notary Public - State of Florida My Commission Expires: 11-17-18 Commission No.: FF 165384 '"' OOMIIA FOIITAIIIII: Notary Nlllc · Slltt ot FlOrida My comm. EJipirlt Nov 17, 2011 c.mmt .. • • ff tl5384 ............. Nay ... First Choice Reporting & Video Services www.firstchoicereporting.com Page 137 Case 6:16-cv-00138-RBD-KRS Document 44-2 Filed 11/18/16 Page 7 of 7 PageID 545 EXHIBIT C Case 6:16-cv-00138-RBD-KRS Document 44-3 Filed 11/18/16 Page 1 of 8 PageID 546 C A R L T O N F I E L D S J O R D E N B U R T , P. A . Suite 4200 - 100 Southeast Second Street - Miami - Florida 33131-9101 - 305.530.0050 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION CASE NO.: 6:16-cv-00138-RBD-KRS LOLA JONES, Plaintiff, v. DISCOUNT AUTO PARTS, LLC, a foreign limited liability company, Defendant. _____________________________________/ DEFENDANT, DISCOUNT AUTO PARTS, LLC’S ANSWERS TO PLAINTIFF, LOLA JONES’ FIRST SET OF INTERROGATORIES Defendant, DISCOUNT AUTO PARTS, LLC (“DAP”), by and through its undersigned attorneys and under Federal Rules of Civil Procedure, hereby serves its answers to Plaintiff, LOLA JONES’ First Set of Interrogatories, numbered 1 through 18, dated April 4, 2016. Respectfully submitted, CARLTON FIELDS JORDEN BURT, P.A. Attorneys for Discount Auto Parts, LLC P.O. Box 019101 Miami, FL 33131-9101 Telephone: (305) 530-0050 Facsimile: (305) 530-0055 Email: eschwartzman@carltonfields.com By: /s/ Emmet J. Schwartzman EMMET J. SCHWARTZMAN Florida Bar No. 710490 Case 6:16-cv-00138-RBD-KRS Document 44-3 Filed 11/18/16 Page 2 of 8 PageID 547 2 C A R L T O N F I E L D S J O R D E N B U R T , P. A . Suite 4200 - 100 Southeast Second Street - Miami - Florida 33131-9101 - 305.530.0050 CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing was served this 23 rd day of May, 2016 via E-mail to: David S. Oliver, Esq., Law Offices of David S. Oliver, 424 East Central Boulevard, Suite 228, Orlando, Florida 32801, Counsel for Plaintiff. By: /s/ Emmet J. Schwartzman EMMET J. SCHWARTZMAN Florida Bar No. 710490 Case 6:16-cv-00138-RBD-KRS Document 44-3 Filed 11/18/16 Page 3 of 8 PageID 548 DEFENDANT, DISCOUNT AUTO PARTS, LLC’S ANSWERS TO FIRST SET OF INTERROGATORIES 1. Please identify each person who has assisted in preparing the Answers to these Interrogatories. ANSWER: These interrogatories are being answered on behalf of DAP by George Hoang, Claims Analyst for Advance Stores Company, Inc., with the assistance of counsel. 2. Identify each employee by name and position or title who was present on the Premises at any time on August 14, 2012. ANSWER: Alejandro Acevedo – Salesperson Ramon Cabrera – Stocker Christina Cardona – Salesperson Pedro Hernandez - Salesperson David Martinez – General Manager Julio Nieves - Salesperson 3. Describe the security camera media or data retention program in effect for your stores from August 14, 2012 to the present. ANSWER: For “security camera media,” not applicable to store no. 8065. For “data retention program” DAP objects to interrogatory no. 3. The term is vague, ambiguous, and potentially overbroad and seemingly depending on how it is defined bears no relation to any of the issues in this case. 4. Describe in detail each act or omission of the Plaintiff that you contend contributed to her injuries sustained due to a slip and fall on the Premises on August 14, 2012. ANSWER: Discovery is ongoing. Plaintiff failed to exercise reasonable care. She disregarded one or more cautionary devices that were open and obvious. In the alternative, any alleged accident was deliberately staged. Case 6:16-cv-00138-RBD-KRS Document 44-3 Filed 11/18/16 Page 4 of 8 PageID 549 2 5. Describe in detail each act or omission of any third party that you contend contributed to her injuries sustained due to a slip and fall on the Premises on August 14, 2012. ANSWER: Undetermined whether there was a slip and fall on August 14, 2012 or that Plaintiff sustained any injuries that are causally connected to a slip and fall. Discovery is ongoing. 6. Describe in detail the facts upon which you base your Affirmative Defense set forth in Paragraph 27 of your Answer and Affirmative Defenses to the Second Amended Complaint, and identify each witness who you believe can testify to each identified fact. ANSWER: See answer to interrogatory no. 4. No team member witnessed Plaintiff’s alleged fall. 7. Describe in detail the facts upon which you base your Affirmative Defense set forth in Paragraph 33 of your Answer and Affirmative Defenses to the Second Amended Complaint, and identify each witness who you believe can testify to each identified fact. ANSWER: William Joseph Hamilton told General Manager David Martinez on October 2, 2012 that Plaintiff was injured in a recent motor vehicle accident. 8. Describe in detail the facts upon you base your Affirmative Defense set forth in Paragraph 34 of your Answer and Affirmative Defenses to the Second Amended Complaint, and identify each witness who you believe can testify to each identified fact. ANSWER: If Plaintiff staged the accident or if the alleged injuries were instead sustained in an unrelated motor vehicle accident, her claim is barred under the doctrine of unclean hands. 9. Describe in detail the facts upon you base your Affirmative Defense set forth in Paragraph 36 of your Answer and Affirmative Defenses to the Second Amended Complaint, and identify each witness who you believe can testify to each identified fact. ANSWER: See answer to interrogatory no. 4. 10. As to each employee identified by you in response to Interrogatory 2 above who is no longer employed by you, please provide the person’s last known address and telephone number. ANSWER: Case 6:16-cv-00138-RBD-KRS Document 44-3 Filed 11/18/16 Page 5 of 8 PageID 550 3 As to employees present in the store on August 14, 2012 at the time of the alleged incident, see DAP’s initial disclosures. 11. State the name and address of each person known by you to have in their possession any photograph, videotape or digital recording of Lola Jones slipping and falling on the Premises on August 14, 2012. ANSWER: None. 12. Have you, or anyone acting on your behalf, obtained from any witness or person any reports, statements, recordings, memorandum or testimony, whether signed or not and whether prepared by someone other than said person or witness or not, concerning Lola Jones slipping and falling on the Premises on August 14, 2012? If so, please state with specificity the name, address and telephone number of each witness referred to and the date that each item was obtained. ANSWER: No pre-claim investigation. Post-claim investigation was conducted in anticipation of litigation and is protected from discovery under the work product doctrine. 13. Was an accident report prepared concerning Plaintiff’s accident that is the subject of this lawsuit? If so, please state the name, address and telephone number of the person who prepared the report and the name, address and telephone number of the person who is currently in possession of the completed accident report. ANSWER: No pre-claim report prepared. 14. Identify the Manager with the most seniority who was present on the Premises at the time of Lola Jones’s accident on August 14, 2012. ANSWER: None assuming there was an “accident” on August 14, 2012. 15. Did anyone inspect the area in the vicinity where Lola Jones slipped and fell on August 14, 2012? If so, please state the name, address and telephone number of the person who inspected the area and identify the date and time of the inspection. ANSWER: Yes as to August 14, 2012. No logs maintained to determine time. Case 6:16-cv-00138-RBD-KRS Document 44-3 Filed 11/18/16 Page 6 of 8 PageID 551 4 16. Please identify any persons who you believe had knowledge of any customers or employees slipping on the same area on August 14, 2012 where Lola Jones sustained her slip and fall, whether before or after Ms. Jones’s accident. ANSWER: None. 17. Please describe as accurately as possible the place or location of the floor in the area where Ms. Jones slipped and fell on August 14, 2012, by giving distance in approximate feet and inches from permanent structures within the Premises. ANSWER: Undetermined whether Plaintiff fell and if so, precisely where fall occurred. 18. Please state whether you are entitled to indemnity from any third party for any damages that may be recovered by Lola Jones in this action, and, if so, please identify such person or entity. ANSWER: Not applicable. Case 6:16-cv-00138-RBD-KRS Document 44-3 Filed 11/18/16 Page 7 of 8 PageID 552 VERIFICATION PAGE GeorgeHoa~ COMMONWEALTH OF VIRGINIA ) ss. COUNTY OF ROANOKE ) BEFORE ME the undersigned authority personally appeared George Hoang ~ known to me (jf vv'he has produced -as..identjficatign .aRd who did take an oath to be the person described in and who executed the foregoing Answers to Interrogatories, and acknowledged to and before me that she has read same and that the contents thereof are true and correct. SWORN TO AND SUBSCRIBED before me this\ crl::·day of May, 2016. 5 Case 6:16-cv-00138-RBD-KRS Document 44-3 Filed 11/18/16 Page 8 of 8 PageID 553