Sanchez v. Ermc Property Management Company of Illinois, Llc et al

MOTION to dismiss for failure to state a claim

M.D. Fla.May 1, 2017

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION CASE NO. 2:16-cv-00851-UA-CM ROSA SANCHEZ Plaintiff, v. COASTLAND CENTER, LLC, and ERMC PROPERTY MANAGEMENT COMPANY OF ILLINOIS, LLC, Defendants. DEFENDANT'S MOTION TO DISMISS COUNT IV OF THE SECOND AMENDED COMPLAINT WITH PREJUDICE AND INCORPORATED MEMORANDUM OF LAW COMES NOW Defendant, ERMC PROPERTY MANAGEMENT COMPANY OF ILLINOIS, LLC 1 (hereinafter “ERMC” or "Defendant"), by and through undersigned counsel and in accordance with the applicable Federal Rules of Civil Procedure, and hereby moves to dismiss the Second Amended Complaint on the basis that the current Amended Complaint does not allege a proper claim against ERMC or violates certain components of the Federal Rules of Civil Procedure. In furtherance thereof, Defendant states: I. BACKGROUND AND ALLEGATIONS IN THE SECOND AMENDED COMPLAINT Plaintiff, ROSA SANCHEZ ("Plaintiff"), filed an Amended Complaint claiming, in pertinent part, that on or about May 7, 2015, she somehow slipped and fell in an unidentified "slippery substance" while at the premises located at 1900 Tamiami Trail North, Naples, Florida. Notably, the 1 Plaintiff has named ERMC PROPERTY MANAGEMENT COMPANY OF ILLINOIS, LLC in the Second Amended Complaint. Notably, this entity was not named in the prior Complaint(s) and thus Defendant also has grounds for dismissal under Fed. R. Civ. P. 12(b)(4) and 12(b)(5). Case 2:16-cv-00851-UA-CM Document 44 Filed 05/01/17 Page 1 of 8 PageID 326 Amended Complaint consisted of Four Counts, one for negligence against each Defendant and one for negligent mode of operation against each Defendant. Defendants each filed a Motion to Dismiss the Amended Complaint. The Defendants Motions were granted as to Counts Two and Four, the Negligent Mode of Operation Counts, and those Counts were dismissed with prejudice. Plaintiff has now filed a Second Amended Complaint, Counts Two and Four of which again attempt to allege a claim for negligent mode of operation despite the fact that those claims have previously been dismissed with prejudice by the Court. This Court has already conclusively ruled on Plaintiff's Negligent Mode of Operation Claims and Plaintiff's attempt to reassert these claims goes contrary to the clear language of the Court's previous Order. 2 Plaintiff's claims for negligent mode of operation are without legal merit and the same should once again be dismissed with prejudice. II. MEMORANDUM OF LAW Federal Rule of Civil Procedure 12(b)(6) requires that a complaint be dismissed for “failure to state a claim upon which relief can be granted if it does not state a claim to relief that is plausible on its face”. See Hesterly v. Royal Caribbean Cruises, 515 F. Supp. 2d 1278, 1281 (S.D. Fla. 2007). Although a plaintiff need not state in detail the facts upon which he bases his claim, Federal Rule of Civil Procedure 8(a)(2) still requires a “showing,” rather than a blanket assertion, of entitlement to relief. Id. In other words, a plaintiff’s pleading obligation requires more than mere labels and conclusions. Id. The previous standard that there be “no set of facts” before a motion to dismiss is granted has thus been abrogated in favor of one that requires a pleading to be “plausible on its face.” Id. In order to survive a motion to dismiss, the plaintiff must have nudged his or her claims across the line from conceivable to plausible. Id.; See Pafumi v. Davidson, 2007 U.S. Dist. LEXIS 43138 (S.D. Fla. 2007)(to survive a motion to dismiss, a complaint must now contain factual allegations 2 See true and correct copy of Opinion and Order [D.E. 30] attached hereto as Exhibit A. Case 2:16-cv-00851-UA-CM Document 44 Filed 05/01/17 Page 2 of 8 PageID 327 which are “enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true.”). Courts have an obligation in matters before them to view the complaint as a whole and to base a ruling not on the presence of mere words but, rather, upon the presence of a factual situation which is or is not justiciable, drawing on the allegations of the complaint, but in a realistic, rather than a slavish manner. City of Pittsburgh v. West Penn Power Company, 147 F.3d 256, 263 (3d Cir. 1998); See Olivares v. Doctor’s Osteopathic Med. Ctr., Inc., 2008 U.S. Dist. LEXIS 62690 (M.D. Fla. 2008) citing Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007)(A complaint needs to provide the grounds of entitlement to relief which requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do; factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true. Plaintiff must plead enough facts to state a plausible basis for the claim); Global Patent Holdings, LLC v. Panthers BRHC LLC, 2008 U.S. Dist. LEXIS 61697 (S.D. Fla. 2008)(same); Valerio v. SmithKline Beecham Corp., 2008 U.S. Dist. LEXIS 60242 (S.D. Fla. 2008)(same). Recently, the U.S. Supreme Court held as follows: "The pleading standard Rule 8 announces does not require detailed factual allegations, but it demands more than an unadorned, the- defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility Case 2:16-cv-00851-UA-CM Document 44 Filed 05/01/17 Page 3 of 8 PageID 328 of entitlement to relief." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 2009 U.S. LEXIS 3472 (2009). The Court illustrated this point by also holding: "The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Although for the purposes of a motion to dismiss courts must take all of the factual allegations in the complaint as true, they are not bound to accept as true a legal conclusion couched as a factual allegation. Fed. R. Civ. P. 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Id. And "A court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations...". Id. at 1950. As mentioned above, the Second Amended Complaint violates both procedural rules and applicable Florida law. Essentially, Count Four of Plaintiff's Second Amended Complaint attempts to allege a cause of action that is not recognized under Florida Law and which has already been dismissed with prejudice by this Court. Fla. Stat. Section 768.0755 Abolishes the Cause of Action for Negligent Mode of Operation Plaintiff's Second Amended Complaint's claim of negligent mode of operation should be dismissed, as the same has been abrogated by Florida Statute and the Court has previously entered an order of dismissal. The cause of action for negligent mode of operation was created under the predecessor premises liability statute, Fla. Stat. Section 768.0710 (2002), which has since been superseded by Fla. Stat. Section 768.0755 (2010). The most significant change between sections 768.0710 and 768.0755 concerned prior notice of a dangerous condition. The older statute expressly Case 2:16-cv-00851-UA-CM Document 44 Filed 05/01/17 Page 4 of 8 PageID 329 stated actual or constructive notice was not "a required element of proof to this claim," but the new statute expressly states the plaintiff must prove that the business establishment had actual or constructive knowledge of the dangerous condition. Additionally, the new statute does not contain any language regarding the owner's negligent maintenance, inspection, repair, warning, or mode of operation. Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418 (Fla. 4th DCA 2014). Under the old statute, a plaintiff could succeed in a slip and fall case by showing "the business premises acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises," without showing the business had actual or constructive knowledge of the transitory foreign substance. Under the new statute, however, the same plaintiff would be unable to successfully assert such a cause of action, no matter how persuasive or compelling the evidence the plaintiff had in support of the claim. Id. In Woodman v. Bravo Brio Rest. Grp., Inc., 2015 U.S. Dist. LEXIS 52375 (M.D. Fla. Apr. 21, 2015), the District Court held that Section 768.0755 has clearly eliminated the mode of operation theory as a basis for recovery in slip-and-fall cases and a plaintiff may not pursue a claim on this basis; the Court held that a plaintiff's claim based upon the negligent mode of operation theory is "immaterial, impertinent, or scandalous" and subject to being stricken. Id. In the current lawsuit, Plaintiff has asserted negligent mode of operation theories and such a cause of action should be dismissed with prejudice. III. CONCLUSION For all the foregoing reasons and based on the above cited authorities, and because the Second Amended Complaint fails to state a claim upon which relief can be granted, fails to comply with the applicable Federal Rules of Civil Procedure and substantive Florida law, or fails to state a Case 2:16-cv-00851-UA-CM Document 44 Filed 05/01/17 Page 5 of 8 PageID 330 definite statement, an Order should be entered Dismissing the Second Amended Complaint or, in the alternative, requiring a proper Third Amended Complaint. Wherefore, Defendant, ERMC PROPERTY MANAGEMENT COMPANY OF ILLINOIS, LLC, respectfully requests this Honorable Court enter an Order dismissing Plaintiff’s Second Amended Complaint, or alternatively; dismissing once again Plaintiff's claim for negligent mode of operation with prejudice; and any other relief deemed just and necessary. Respectfully submitted, /s/ Michael Alexander Garcia Michael Alexander Garcia Fla. Bar No. 0161055 Email: mgarcia@fowler-white.com FOWLER WHITE BURNETT, P.A. Brickell Arch, Fourteenth Floor 1395 Brickell Avenue Miami, Florida 33131 Telephone: (305) 789-9200 Facsimile: (305) 789-9201 Case 2:16-cv-00851-UA-CM Document 44 Filed 05/01/17 Page 6 of 8 PageID 331 CERTIFICATE OF SERVICE I hereby certify that on May 1, 2017, the foregoing document was electronically filed with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. s/ Michael Alexander Garcia Michael Alexander Garcia Case 2:16-cv-00851-UA-CM Document 44 Filed 05/01/17 Page 7 of 8 PageID 332 SERVICE LIST CASE NO. 2:16-cv-00851-UA-CM Brian M. Davis, Esq. The Trial Professionals, P.A. 1218 East Robinson Street Orlando, FL 32801 E-Mail: Brian@TrialPro.com; Tyler@TrialPro.com; Carol@TrialPro.com Telephone: (407) 300-0000 Facsimile: (407) 367-0750 Tyler B. Nicoll, Esq. The Trial Professionals, P.A. 1019 Crosspointe Drive Suite 1 Naples, FL 34110 E-Mail: Tyler@TrialPro.com; Piercy@TrialPro.com; Nora@TrialPro.com Telephone: (239) 300-0000 Facsimile: (239) 514-0555 4819-6206-6503, v. 1 Case 2:16-cv-00851-UA-CM Document 44 Filed 05/01/17 Page 8 of 8 PageID 333 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION ROSA SANCHEZ, Plaintiff, v. Case No: 2:16-cv-851-FtM-99CM ERMC OF AMERICA, LLC and COASTLAND CENTER, LLC, Defendants. OPINION AND ORDER This matter comes before the Court on defendants ERMC of America, LLC and Coastland Center, LLC’s1 Motions to Dismiss or, Alternatively, for a More Definite Statement (Docs. ##8, 10) filed on December 1 and 2, 2016. Plaintiff filed a response in opposition to both motions on December 14, 2016. (Doc. #13.) For the reasons set forth below, the motions are granted to the extent that plaintiff’s negligent mode of operation claims against defendants are dismissed; otherwise, the motion is denied. I. Plaintiff Rosa Sanchez (plaintiff or Sanchez) has brought this premises liability action against the owner and operator of 1 Glenn Harrell was previously named as a defendant in this action (Count V) and joined in Coastland Center’s motion to dismiss. Plaintiff has since voluntarily dismissed Harrell and he has been terminated from this case; therefore, Harrell’s arguments for dismissal are moot. (Docs. ##14, 15, 21.) Case 2:16-cv-00851-UA-CM Document 30 Filed 01/31/17 Page 1 of 11 PageID 218Case 2:16-cv-0 851-UA-CM Document 44-1 Filed 05/01/17 Page 1 of 1 PageID 334 Coastland Center Mall (the “Premises”) for negligence arising out of a slip and fall incident that occurred on or about May 7, 2015 near the entrance to the Old Navy store. (Doc. #2, ¶¶ 6-7.) Plaintiff alleges that she slipped and fell on a “slippery substance,” sustaining serious injury. (Id.) The case was removed based upon diversity jurisdiction, and is currently proceeding on a four-count Amended Complaint against defendants Coastland Center, LLC (Coastland) and ERMC of America, LLC (ERMC) (collectively, “defendants”) under theories of negligence (Counts I and III) and negligent mode of operation (Counts II and IV). (Doc. #2.)2 Plaintiff alleges that Coastland was in possession, custody, and control of the Premises, that ERMC was responsible for the maintenance of the Premises, and that defendants were the “owner(s) and/or operator(s) of the Premises.” (Id. at ¶¶ 3-4, 9, 15.) Defendants move to dismiss the Amended Complaint for failure to state a claim because the complaint fails to allege sufficient facts to establish negligence, and because negligent mode of operation has been abrogated by Florida Statute. II. Under Federal Rule of Civil Procedure 8(a)(2), a Complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 2 The fifth count was a claim of negligence against Harrell individually, who has since been dismissed. - 2 - Case 2:16-cv-00851-UA-CM Document 30 Filed 01/31/17 Page 2 of 11 PageID 219Case 2:16-cv-0 851-UA-CM Document 44-1 Filed 05/01/17 Page 2 of 1 PageID 335 This obligation “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). To survive dismissal, the factual allegations must be “plausible” and “must be enough to raise a right to relief above the speculative level.” Id. at 555. See also Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). In deciding a Rule 12(b)(6) motion to dismiss, the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff, Erickson v. Pardus, 551 U.S. 89 (2007), but “[l]egal conclusions without adequate factual support are entitled to no assumption of truth.” Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Factual allegations that are merely consistent with a defendant’s liability fall short of being facially plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (internal citations omitted). Thus, the Court engages in a two-step approach: “When there are well-pleaded factual allegations, a court should assume their veracity and then - 3 - Case 2:16-cv-00851-UA-CM Document 30 Filed 01/31/17 Page 3 of 11 PageID 220Case 2:16-cv-0 851-UA-CM Document 44-1 Filed 05/01/17 Page 3 of 1 PageID 336 determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679. III. A. Negligence (Counts One and Three) 1. Adequate Factual Allegations Under Florida law, 3 to maintain a cause of action for negligence, a plaintiff must prove: “(1) a duty to the plaintiff; (2) the defendant’s breach of that duty; (3) injury to the plaintiff arising from the defendant’s breach; and (4) damage caused by the injury to the plaintiff as a result of the defendant’s breach of duty.” Delgado v. Laundromax, Inc., 65 So. 3d 1087, 1089 (Fla. 3d DCA 2011). A property owner owes two duties to a business invitee: (1) a duty to warn of latent or concealed perils that were known or should have been known to the owner and which were unknown to the invitee; and (2) a duty to take ordinary care to maintain its premises in a reasonably safe condition. Westchester Exxon v. Valdes, 524 So. 2d 452, 455 (Fla. 3d DCA 1988); see also Ramsey v. Home Depot U.S.A., Inc., 124 So. 3d 415, 417 (Fla. 1st DCA 2013). Here, plaintiff alleges that defendants had a duty to its business invitees to exercise reasonable care to maintain the 3 Florida’s substantive law governs in this diversity case. LaTorre v. Connecticut Mut. Life Ins. Co., 38 F.3d 538, 540 (11th Cir. 1994). - 4 - Case 2:16-cv-00851-UA-CM Document 30 Filed 01/31/17 Page 4 of 11 PageID 221Case 2:16-cv-0 851-UA-CM Document 44-1 Filed 05/01/17 Page 4 of 1 PageID 337 Premises in a reasonably safe condition and to warn plaintiff of latent perils. (Doc. #2, ¶¶ 8, 15). Plaintiff alleges that defendants breached that duty by allowing the existence of a dangerous condition on the floor and failing to inspect the Premises, creating the dangerous condition which was known or should have been known to defendants. (Id. at ¶¶ 9, 16.) According to plaintiff, these actions caused her fall and injuries. Defendants do not contest that they had a duty to business invitees such as Sanchez, or that the actions they are alleged to have committed would constitute a breach of that duty. Instead, defendants argue that the Amended Complaint is deficient because plaintiff does not allege how defendants failed to maintain the Premises, what condition existed that required inspection or removal, how long the purported condition existed, or how it required removal and why.4 Defendants also argue that plaintiff has not set forth the length of time the dangerous condition existed prior to her fall or how defendants could have known about the slippery substance.5 4 Defendants also assert that the Amended Complaint fails to identify where plaintiff fell. Yet, the Amended Complaint specifically states that it was outside the Old Navy store. (Doc. #2, ¶ 6.) 5 Defendants also argue that the Amended Complaint does not allege that the dangerous condition was hidden or concealed, which is required to trigger defendants’ duty to warn, see St. Joseph’s Hosp. v. Cowart, 891 So. 2d 1039, 1042 (Fla. 2d DCA 2004) (finding that the hospital had no duty to warn plaintiff of a danger of which it had no knowledge). Plaintiff’s Amended Complaint does - 5 - Case 2:16-cv-00851-UA-CM Document 30 Filed 01/31/17 Page 5 of 11 PageID 222Case 2:16-cv-0 851-UA-CM Document 44-1 Filed 05/01/17 Page 5 of 1 PageID 338 Such specificity is not required to state a cause of action for negligence. Even if such information, as defendants insist, constitutes “facts that one would think are within the knowledge of the Plaintiff,” there is no requirement that plaintiff plead them. In re Southeast Banking Corp., 69 F.3d 1539, 1551 (11th Cir. 1995) (Fed. R. Civ. P. 8 does not require a plaintiff to plead with the greatest specificity it can). Accordingly, Sanchez has plausibly alleged her negligence cause of action.6 2. Commingling Claims Defendants also assert that plaintiff alleges and commingles more than one cause of action in the negligence count, and that failure to warn, negligent maintenance, and “active negligence” should be alleged as separate counts. Although the two duties a property owner owes to an invitee are distinct, Wolford v. allege a duty to warn her of “latent perils.” Whether defendants had knowledge of the slippery substance on the Premises such that it triggered the duty to warn is a fact issue, and dismissal on this grounds is denied. 6 Defendant ERMC argues that the Amended Complaint improperly alleges that it was responsible for the maintenance of the Premises, although it was not. Yet, the Court accepts plaintiff’s allegation that it was responsible for the Premises as true at the motion to dismiss stage. While it is not entirely clear from the Amended Complaint what maintenance services that ERMC provided at Coastland Mall, maintenance companies responsible by contract for cleaning and custodial services may be held liable to members of the public for its negligence in performing that contract. See Maryland Maintenance Serv., Inc. v. Palmieri, 559 So. 2d 74, 76 (Fla. 3d DCA 1990). - 6 - Case 2:16-cv-00851-UA-CM Document 30 Filed 01/31/17 Page 6 of 11 PageID 223Case 2:16-cv-0 851-UA-CM Document 44-1 Filed 05/01/17 Page 6 of 1 PageID 3 9 Ostenbridge, 861 So. 2d 455, 456 (Fla. 2d DCA 2003); Lynch v. Brown, 489 So. 2d 65, 66 (Fla. 1st DCA 1986) (recognizing that these two duties are “alternative”), plaintiff has adequately alleged breach of both duties as the basis for her negligence claim. The Court sees no requirement in this case for plaintiff to assert breach of the duties as separate causes of action. Cf. Fed. R. Civ. P. 10(b). B. Negligent Mode of Operation (Counts Two and Four) The parties disagree on whether the “mode of operation” theory is still viable in Florida. The mode of operation theory allows a slip-and-fall plaintiff to recover by showing that a defendant failed to exercise reasonable care in selecting a mode of operation, without showing that the defendant had actual or constructive knowledge of the dangerous condition. See Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256, 259-60 (Fla. 2002) (“[T]he mode-of-operation rule looks to a business’s choice of a particular mode of operation and not events surrounding the plaintiffs accident.”). In Markowitz, the court recognized that the duty of premises owners to maintain their premises in a safe condition was not limited to simply detecting the dangerous conditions as they occur, but businesses were under a duty to take actions to “reduce, minimize, or eliminate foreseeable risks before they manifest themselves. . . .” Id. at 259. At the time - 7 - Case 2:16-cv-00851-UA-CM Document 30 Filed 01/31/17 Page 7 of 11 PageID 224Case 2:16-cv-0 851-UA-CM Document 44-1 Filed 05/01/17 Page 7 of 1 PageID 3 0 Markowitz was decided, the slip and fall statute in effect explicitly mentioned mode of operation, providing that: (1) The person or entity in possession or control of business premises owes a duty of reasonable care to maintain the premises in a reasonably safe condition for the safety of business invitees on the premises, which includes reasonable efforts to keep the premises free from transitory foreign objects or substances that might foreseeably give rise to loss, injury, or damage. (2) In any civil action for negligence involving loss, injury, or damage to a business invitee as a result of a transitory foreign object or substance on business premises, the claimant shall have the burden of proving that: (a) The person or entity in possession or control of the business premises owed a duty to the claimant; (b) The person or entity in possession or control of the business premises acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises. Actual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim. However, evidence of notice or lack of notice offered by any party may be considered together with all of the evidence; and (c) The failure to exercise reasonable care was a legal cause of the loss, injury, or damage. Fla. Stat. § 768.0710(2)(b) (emphasis added) (repealed July 1, 2010). On July 1, 2010, a new slip and fall statute went into effect, Fla. Stat. § 768.0755, and the current version of the statute was - 8 - Case 2:16-cv-00851-UA-CM Document 30 Filed 01/31/17 Page 8 of 11 PageID 225Case 2:16-cv-0 851-UA-CM Document 44-1 Filed 05/01/17 Page 8 of 1 PageID 341 in effect at the time of Sanchez’s slip and fall. The statute now 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 (2010). Defendants argue the current version eliminates the mode of operation theory, while plaintiff argues that it preserves the cause of action. (Doc. #13 at 9.) Florida courts have held that under the current version of the statute, proof of actual or constructive knowledge is a necessary element of a slip and fall claim. See Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 426 (Fla. 4th DCA 2014). See also Woodman v. Bravo Brio Restaurant Group, Inc., No. 6:14- cv-2025-Orl-40TBS, 2015 WL 1836941, at *2 (M.D. Fla. Apr. 21, 2015) (interpreting § 768.0755 to effectuate the legislature’s intent and finding that proof of actual or constructive knowledge is an element of a slip and fall case, replacing proof by negligent mode - 9 - Case 2:16-cv-00851-UA-CM Document 30 Filed 01/31/17 Page 9 of 11 PageID 226Case 2:16-cv-0 851-UA-CM Document 44-1 Filed 05/01/17 Page 9 of 1 PageID 342 of operation); Valles v. Target Corp., No. 14-60723-Civ-Scola, 2015 WL 1640326, at *2 (S.D. Fla. Apr. 9, 2015) (Essentially, under Florida law, “a person claiming that a store was negligent by not cleaning up a dangerous condition must present some evidence that the dangerous condition ... existed for such a length of time that, in the exercise of ordinary care, the store would have known of the condition.”) (citing Vallot v. Logan’s Roadhouse, Inc., 567 F. App’x 723, 726 (11th Cir. 2014) (affirming an order granting summary judgment where the plaintiff failed to establish that the restaurant had actual or constructive notice of a slippery substance on the floor where he fell)). The Court agrees that the plain language of subsection (1) requires proof of actual or constructive knowledge of the transitory foreign substance. In enacting Fla. Stat. § 768.0755, the Florida legislature specifically repealed the language of Fla. Stat. 768.0710, which had allowed a plaintiff to establish a claim for relief by showing a negligent mode of operation without the showing of actual or constructive knowledge. In interpreting § 768.0755, this Court must “strive to effectuate the legislature’s intent” beginning with the plain language of the statute. Kasischke v. State, 991 So. 2d 803, 807 (Fla. 2008) (noting that if the statutory language is “clear and unambiguous,” the inquiry ends there). Plaintiff’s argument that her negligent mode of operation claim survives under subsection (2) of the statute is - 10 - Case 2:16-cv-00851-UA-CM Document 30 Filed 01/31/17 Page 10 of 11 PageID 227Case 2:16-cv-0 851-UA-CM Document 44-1 Filed 05/01/17 Page 10 of 1 PageID 343 not supported. The statute eliminated a statutory cause of action, but preserved only common law claims. See State v. Goode, 830 So. 2d 817, 824 (Fla. 2002). “[A] basic rule of statutory construction provides that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.” Accordingly, it is hereby ORDERED AND ADJUDGED: 1. Defendant ERMC of America, LLC’s Motion to Dismiss or, Alternatively, Motions for a More Definite Statement (Doc. #8) is GRANTED IN PART and DENIED PART. The motion is granted to the extent that Count IV is dismissed with prejudice; otherwise, the motion is denied. 2. Defendant Coastland Center, LLC’s Motion to Dismiss or, Alternatively, Motion for a More Definite Statement (Doc. #10) is GRANTED IN PART and DENIED PART. The motion is granted to the extent that Count II is dismissed with prejudice; otherwise, the motion is denied. DONE and ORDERED at Fort Myers, Florida, this 31st day of January, 2017. Copies: Counsel of Record - 11 - Case 2:16-cv-00851-UA-CM Document 30 Filed 01/31/17 Page 11 of 11 PageID 228Case 2:16-cv-0 851-UA-CM Document 44-1 Filed 05/01/17 Page 1 of 1 PageID 344