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Filing # 178176274 E-Filed 07/25/2023 01:37:26 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL
CIRCUIT, IN AND FOR OSCEOLA COUNTY, FLORIDA
Pierina Gonzalez Pazmino Case No.: 2023 CA 2003
Division:
Plaintiff,
Vs.
Luis Eduardo Domingo Macabis et al.
Defendant
DEFENDANT’S ANSWER, AFFIRMATIVE DEFENSES AND JURY DEMAND
COMES NOW, ALCIDES ARGENIS ROMAN GAMARDO, Defendant herein, by and
through the undersigned attorney, answering the Plaintiff's Complaint as follows:
ANSWER
Admit for jurisdictional purposes only
Admit
Without knowledge
Without knowledge
Admit
Admit
Admit
Admit
Admit
10. Without knowledge
11 (Allegation Directed to Different Defendant)
12. (Allegation Directed to Different Defendant)
13 (Allegation Directed to Different Defendant)
14 Admit that defendant herein consented and gave permission to defendant Luis Eduardo
Domingo Macabis but deny the balance of the allegations of § 14.
15. Deny
16. Without Knowledge
17. Without Knowledge
18. (Allegation Directed to Different Defendant)
19. (Allegation Directed to Different Defendant)
20. (Allegation irected to Different Defendant)
21. (Allegation Directed to Different Defendant)
22. (Allegation Directed to Different Defendant)
23. (Allegation Directed to Different Defendant)
24. (Allegation Directed to Different Defendant)
AFFIRMATIVE DEFENSES.
First Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that
Defendant should be awarded an offset for any and all damages awarded to Plaintiff to the
extent said damages are the result of Plaintiff’s own actions or inactions.
Second Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that
Defendant owed no duty to Plaintiff.
Third Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that
Plaintiff failed to mitigate their damages, and, as such, any recovery should be accordingly
barred or reduced.
Fourth Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that
it is entitled to an apportionment of damages in relation to the degree of fault, if any, of all
parties, entities, or persons (named or unnamed), pursuant to Fabre v. Marin, 623 So. 2d 1182
(Fla. 1993).
Fifth Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that
actions or inactions by Defendant were not the direct and proximate cause of Plaintiff’s alleged
damages. Accordingly, Plaintiff fails to state a cause of action against Defendant and their
action is barred or limited by comparative negligence.
Sixth Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that
the negligence of parties, named and unnamed, other than Defendant and including, but not
limited to, Plaintiff and other licensees, constitute a superseding, intervening cause, thus
relieving Defendant of liability, if any actually exists.
Seventh Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that
Defendant relies upon any defenses or rights it may have pursuant to Fla. Stat. 768.31 and
768.81.
Eighth Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that
Defendant is entitled to a set-off for all sums of money recovered by or on behalf of Plaintiff
by way of settlement, judgment, or otherwise, whether recovered from a party to this action or
a non-party.
Ninth Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that
any damages Plaintiff may have sustained was proximately caused by third persons or entities
over whom Defendant had no control and for whose actions Defendant is not liable.
10. Tenth Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that
Plaintiff’s damages were as a result of unavoidable consequences and/or acts of God.
11 Eleventh Affirmative Defense: Defendant affirmatively alleges, without admitting liability,
that Plaintiff’s Complaint is barred by the doctrine of Estoppel.
12 Twelfth Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that
Plaintiff’s Complaint is barred under the doctrine of express assumption of risk. Skating is a
contact sport and Plaintiff waived the right to sue by participating. Alternatively, express
assumption of risk is applicable because participants in skating need to be protected against
litigation from other skaters for foreseeable common injuries, such as falling, and the Plaintiff
expressly waived her right to sue for the alleged injury by participating.
13 Thirteenth Affirmative Defense: Defendant affirmatively alleges, without admitting liability,
that Plaintiff’s claim should be limited by the doctrine of implied assumption of risk and
therefore comparative negligence principles are applicable.
14. Fourteenth Affirmative Defense: Defendant affirmatively alleges, without admitting liability,
that Plaintiff’s claim should be limited by the doctrine of comparative negligence principles as
applicable.
15 Fifteenth Affirmative Defense: Defendant affirmatively alleges, without admitting liability,
that Plaintiff’s claims are barred by the doctrine of waiver because Plaintiff expressly and
impliedly waived her right to sue for this injury by participating.
16. Sixteenth Affirmative Defense: Defendant affirmatively alleges, without admitting liability,
that Plaintiff failed to join all indispensable parties.
17 Seventieth Affirmative Defense: Defendant affirmatively alleges, without admitting liability,
that Plaintiffs have unclean hands and therefore are barred from recovery.
18 Eighteenth Affirmative Defense: Defendant affirmatively alleges, without admitting liability,
that Plaintiff’s claims are barred due to the doctrine of laches.
19 Nineteenth Affirmative Defense: Defendant affirmatively alleges, without admitting liability,
that Plaintiff’s are in pari delecto with Defendants.
20. Twentieth Affirmative Defense: Defendant affirmatively alleges, without admitting liability,
that the action is barred by the applicable statute of limitations.
Demand for Jury Trial
Defendant demands a trial by Jury on all issues so triable.
WHEREFORE, the Defendant requests an Order of this Court dismissing the Complaint and
further relief deemed just and appropriate.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the date noted by e-portal stamp, I electronically filed the
foregoing with the Clerk of the Courts by using the State of Florida e-Portal system, which will
send electronic notice to the person(s) listed below:
Andrew Rollins, Esq.
rollins@forthepeople.com
Morganservice@forthepeople.com
Attorney
for Plaintiff
By: /s/_David M. Chico
David M. Chico, Esq., FBN: 010318
Benjamin Weissman, Esq., FBN: 120770
DAVID CHICO LAW GROUP
607 Celebration Avenue, Celebration, Florida 34747
T: 407-933-7703
F: 407-933-7713
For eService only:serve@davidchicolaw.com
For all other inquiries:tanya@davidchicolaw.com
Attorneys for Defendant
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Filing # 178176274 E-Filed 07/25/2023 01:37:26 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR OSCEOLA COUNTY, FLORIDA Pierina Gonzalez Pazmino Case No.: 2023 CA 2003 Division: Plaintiff, Vs. Luis Eduardo Domingo Macabis et al. Defendant DEFENDANT’S ANSWER, AFFIRMATIVE DEFENSES AND JURY DEMAND COMES NOW, ALCIDES ARGENIS ROMAN GAMARDO, Defendant herein, by and through the undersigned attorney, answering the Plaintiff's Complaint as follows: ANSWER Admit for jurisdictional purposes only Admit Without knowledge Without knowledge Admit Admit Admit Admit Admit 10. Without knowledge 11 (Allegation Directed to Different Defendant) 12. (Allegation Directed to Different Defendant) 13 (Allegation Directed to Different Defendant) 14 Admit that defendant herein consented and gave permission to defendant Luis Eduardo Domingo Macabis but deny the balance of the allegations of § 14. 15. Deny 16. Without Knowledge 17. Without Knowledge 18. (Allegation Directed to Different Defendant) 19. (Allegation Directed to Different Defendant) 20. (Allegation irected to Different Defendant) 21. (Allegation Directed to Different Defendant) 22. (Allegation Directed to Different Defendant) 23. (Allegation Directed to Different Defendant) 24. (Allegation Directed to Different Defendant) AFFIRMATIVE DEFENSES. First Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that Defendant should be awarded an offset for any and all damages awarded to Plaintiff to the extent said damages are the result of Plaintiff’s own actions or inactions. Second Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that Defendant owed no duty to Plaintiff. Third Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that Plaintiff failed to mitigate their damages, and, as such, any recovery should be accordingly barred or reduced. Fourth Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that it is entitled to an apportionment of damages in relation to the degree of fault, if any, of all parties, entities, or persons (named or unnamed), pursuant to Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). Fifth Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that actions or inactions by Defendant were not the direct and proximate cause of Plaintiff’s alleged damages. Accordingly, Plaintiff fails to state a cause of action against Defendant and their action is barred or limited by comparative negligence. Sixth Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that the negligence of parties, named and unnamed, other than Defendant and including, but not limited to, Plaintiff and other licensees, constitute a superseding, intervening cause, thus relieving Defendant of liability, if any actually exists. Seventh Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that Defendant relies upon any defenses or rights it may have pursuant to Fla. Stat. 768.31 and 768.81. Eighth Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that Defendant is entitled to a set-off for all sums of money recovered by or on behalf of Plaintiff by way of settlement, judgment, or otherwise, whether recovered from a party to this action or a non-party. Ninth Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that any damages Plaintiff may have sustained was proximately caused by third persons or entities over whom Defendant had no control and for whose actions Defendant is not liable. 10. Tenth Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that Plaintiff’s damages were as a result of unavoidable consequences and/or acts of God. 11 Eleventh Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that Plaintiff’s Complaint is barred by the doctrine of Estoppel. 12 Twelfth Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that Plaintiff’s Complaint is barred under the doctrine of express assumption of risk. Skating is a contact sport and Plaintiff waived the right to sue by participating. Alternatively, express assumption of risk is applicable because participants in skating need to be protected against litigation from other skaters for foreseeable common injuries, such as falling, and the Plaintiff expressly waived her right to sue for the alleged injury by participating. 13 Thirteenth Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that Plaintiff’s claim should be limited by the doctrine of implied assumption of risk and therefore comparative negligence principles are applicable. 14. Fourteenth Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that Plaintiff’s claim should be limited by the doctrine of comparative negligence principles as applicable. 15 Fifteenth Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that Plaintiff’s claims are barred by the doctrine of waiver because Plaintiff expressly and impliedly waived her right to sue for this injury by participating. 16. Sixteenth Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that Plaintiff failed to join all indispensable parties. 17 Seventieth Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that Plaintiffs have unclean hands and therefore are barred from recovery. 18 Eighteenth Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that Plaintiff’s claims are barred due to the doctrine of laches. 19 Nineteenth Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that Plaintiff’s are in pari delecto with Defendants. 20. Twentieth Affirmative Defense: Defendant affirmatively alleges, without admitting liability, that the action is barred by the applicable statute of limitations. Demand for Jury Trial Defendant demands a trial by Jury on all issues so triable. WHEREFORE, the Defendant requests an Order of this Court dismissing the Complaint and further relief deemed just and appropriate. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the date noted by e-portal stamp, I electronically filed the foregoing with the Clerk of the Courts by using the State of Florida e-Portal system, which will send electronic notice to the person(s) listed below: Andrew Rollins, Esq. rollins@forthepeople.com Morganservice@forthepeople.com Attorney for Plaintiff By: /s/_David M. Chico David M. Chico, Esq., FBN: 010318 Benjamin Weissman, Esq., FBN: 120770 DAVID CHICO LAW GROUP 607 Celebration Avenue, Celebration, Florida 34747 T: 407-933-7703 F: 407-933-7713 For eService only:serve@davidchicolaw.com For all other inquiries:tanya@davidchicolaw.com Attorneys for Defendant