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Filing # 172437405 E-Filed 05/04/2023 12:07:43 PM
SANTA SANTANA, IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN AND
Plaintiff, FOR MIAMI-DADE COUNTY, FLORIDA
v. CIRCUIT CIVIL DIVISION
RASCAL NMB, LLC, CASE NO.: 2023-005788-CA-01
Defendant.
______________________________________/
PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’ AFFIRMATIVE DEFENSES
Plaintiff, SANTA SANTANA, by and through undersigned counsel, and pursuant to the
Florida Rules of Civil Procedure, hereby moves for an order striking certain Affirmative Defenses
asserted by the Defendant, RASCAL NMB, LLC, and as basis therefore would show unto the
Court as follows:
1. This is an action for personal injuries arising from a slip and fall occurring on
Defendant’s premises on August 20, 2022.
2. Defendant filed its Answer and Affirmative Defenses, which includes Sixteen
Affirmative Defenses. A copy of Defendant’s Answer and Affirmative Defenses to Plaintiff’s
Amended Complaint is attached hereto as Exhibit “A.”
3. Pursuant to Florida Rule of Civil Procedure 1.140 (f), “the plaintiff may test the
sufficiency of…affirmative defenses by a motion to strike.” Hendricks v. Stark, 126 So. 293, 293-
94 (Fla. 1930)
4. An affirmative defense is one that admits the cause of action asserted by the
proceeding pleading, but avoids liability, wholly or partly, by allegations of excuse, justification
or other matter negating the cause of action. Florida East Coast Railway Company v. Peters, 73
So. 151 (Fla. 1916).
5. Affirmative defenses do not simply deny the facts of the opposing party’s claim.
They raise some new matter which defeats an otherwise apparently valid claim.” Wiggins v.
Portmay Corp., 430 So. 2d 541, 542 (Fla. 1st DCA 1983).
6. A defendant must allege each element of the defense and must state the factual basis
for the same. L.B. McLeod Const. Co. v. Cooper, 134 So. 224 (Fla. 1931).
7. This requirement is to reasonably inform the adversary and provide them with a fair
opportunity to prepare a response. Zito v. Washington Fed. Sav. & Loan Ass'n of Miami Beach,
318 So. 2d 175 (Fla. 3d DCA 1975).
8. Improperly pled Affirmative Defenses are susceptible to attack via a Motion to
Strike which tests the legal sufficiency of a Defendant’s Affirmative Defense. See, Buns v.
Equilease Corp., 357 So. 2d 786, 787 (Fla. 3d DCA 1978) (holding that motion to strike defense
tests only legal sufficiency of a defense).
9. Defendant’s First and Fourteenth Affirmative Defenses are merely a denial of
Plaintiff’s claims and allegations that Defendant was on notice of the dangerous condition and
Defendant is negligent for causing Plaintiff’s injuries and therefore these affirmative defenses
should be stricken. Tropical Exterminator Inc. v. Murray, 171 So.2d 432 (2d DCA 1965).
10. Defendant’s Seventh Affirmative Defense alleges that Plaintiff has failed to
mitigate her damages. However, the defense of failure to mitigate damages is duplicative and
subsumed within the comparative negligence defense, which Defendant pleads as its Fourth
Affirmative Defense. This affirmative defense should therefore be stricken. See, Jacobs v.
Westgate, 766 So. 2d 1175 (Fla. 3d DCA 2000).
11. Defendant’s Eighth Affirmative Defense, again alleges it is entitled to any relief
pertaining to Fla. Stat. §768.81, comparative negligence. This affirmative defense is therefore
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SIMON TRIAL FIRM, ATTORNEYS AT LAW
redundant of Defendant’s Fourth Affirmative Defense and should therefore be stricken. Fla. R.
Civ. Pro. 1.140(f).
12. Defendant’s Tenth Affirmative Defense alleges Plaintiff’s “injuries were solely
the result of the negligence on the part of third parties, who were not in the care, custody, control
and/or supervision of Defendant” pursuant to Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993).
However, Defendant’s affirmative defense does not identify this non-party tortfeasor nor provide
any details as to how this non-party is alleged to be at fault. Florida law requires that in order to
include a non-party on the verdict form, the defendant must specifically identify the non-party.
Nash v. Wells Fargo Guard Services, Inc., 678 So. 2d 1262, 1264 (Fla. 1996); see also, Lagueux
v. Union Carbide Corp., 861 So. 2d 87 (Fla. 4th DCA 2003). Because the Defendant has not
identified this non-party, the Plaintiff is unable to rebut this affirmative defense in any meaningful
way. Therefore, allowing this unknown party on the verdict form would severally prejudice the
Plaintiff, and should therefore be stricken.
13. Defendant’s Twelfth Affirmative Defense alleges that Plaintiff assumed the risk
of her injury. The Supreme Court, in Kendrick v. Ed's Beach Service, Inc., 577 So. 2d. 936 (Fla.
1991), distinguished the law with respect to cases involving implied assumption of risk and an
express assumption of risk. Those cases where implied assumption of risk was inherent in the
activity is controlled by comparative negligence principles (which Defendant alleges as its Fourth
Affirmative Defense). Implied assumption of risk may not be asserted as an ordinary defense to
break the chain of legal causation. The Court further went on to indicate that express assumption
of risk was a proper defense only in actions involving participants in contact sports. See also, Black
Burn v. Dorta, 348 So.2nd 287 (Fla. 1977), Mazzeo v. City of Sabastian, 550 So.2nd 1113 (Fla.
1989), and Petruzzella v. Church on The Rock of Palm Coast, Inc., 42 Fla. L. Weekly D 1141 (5th
-3-
SIMON TRIAL FIRM, ATTORNEYS AT LAW
DCA 2017).The Defendant’s allegation of assumption of risk is improperly pled and, therefore,
should be stricken from Defendant’s Affirmative Defenses.
14. Finally, Defendant’s Sixteenth Affirmative Defense, which alleges Plaintiff had
equal or superior knowledge of the open and obvious condition complained of, is duplicative of
Defendant’s Second Affirmative Defense which also alleges the condition was open and obvious
and known to the Plaintiff. Therefore this affirmative defense is redundant and should be stricken.
Fla. R. Civ. Pro. 1.140(f).
WHEREFORE, Plaintiff, SANTA SANTANA, respectfully requests that this Honorable
Court grant this Motion and enter an Order striking the foregoing Affirmative Defenses and grant
any other relief this Court deems just and proper under the circumstances.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was served via E-
Mail this 4th day of May, 2023 to: Jonathan O. Aihie, Esq., Attorney for Defendant, Kubicki
Draper, 9100 South Dadeland Blvd., 18th Floor, Miami, Florida 33156; Telephone: (305) 982-
67400; Email Designations: cw@kubickidraper.com
SIMON TRIAL FIRM
Attorneys for Plaintiff
First Citizens Bank Tower
2601 South Bayshore Drive, Suite 1010
Miami, Florida 33133
Telephone: (305) 375-6500
Facsimile: (305) 375-0388
Email: pleadings@simon-trial.com
By: /s/ Kyle A. Quintana
RONALD M. SIMON, ESQ.
Florida Bar No.: 165262
KYLE A. QUINTANA, ESQ.
Florida Bar No.: 1003110
-4-
SIMON TRIAL FIRM, ATTORNEYS AT LAW
0173719 IN THE COUNTY COURT OF THE 11TH
JUDICIAL CIRCUIT IN FOR MIAMI-
DADE COUNTY, FLORIDA
SANTA SANTANA CASE NO.: 2023-005788-CA-01
Plaintiff,
v.
RASCAL NMB, LLC
Defendant.
/
DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S
AMENDED COMPLAINT FOR DAMAGES
Defendant, Rascal NMB, LLC (“Defendant”), by and through its undersigned counsel,
and pursuant to the Florida Rules of Civil Procedure, hereby files its Answer and Affirmative
Defenses to Plaintiff’s, Santa Santana (“Plaintiff”) Complaint, and as grounds states the
following:
GENERAL ALLEGATIONS
1. Denied.
2. Without knowledge.
3. Admitted.
4. Admitted.
5. Denied as phrased.
6. Without knowledge.
7. Denied as phrased.
8. Denied as phrased.
9. Denied as phrased.
10. Denied as phrased.
11. Denied as phrased.
Exhibit "A"
Filed by eFileMadeEasy.com: Filing #172156725 Electronically Filed 05/01/2023 02:16:44 PM EST
Torres v. Winn-Dixie
Case No.: 22-024117 CA 01
12. Denied.
13. Denied.
14. Denied.
15. Denied.
16. Denied.
17. Denied.
18. Denied.
Any allegation not specifically admitted is denied.
DEMAND FOR JURY TRIAL
Defendant demands a jury trial on all issues so triable of right.
AFFIRMATIVE DEFENSES
In further answering Plaintiff’s complaint, Defendant states:
FIRST AFFIRMATIVE DEFENSE
The Defendant is not guilty of any negligence which was the legal cause of loss, injuries,
or damages, if any, to the Plaintiff herein.
SECOND AFFIRMATIVE DEFENSE
Defendant is not liable for the injuries allegedly sustained by the Plaintiff because the
dangers complained of in the subject of this lawsuit was open and obvious and known to the
Plaintiff.
THIRD AFFIRMATIVE DEFENSE
The Defendant is entitled to a set-off against the damages Plaintiff alleges due to monies
paid to or on behalf of Plaintiff on account of wages, medical insurance payments, workers’
compensation benefits, settlements, med-pay, disability benefits or other benefits that Plaintiff
2
Kubicki Draper • 9100 S. Dadeland Blvd., Suite 1800 Miami, Florida 33156 • T: (305) 374-1212 • F: (305) 374-7846
Torres v. Winn-Dixie
Case No.: 22-024117 CA 01
received or may receive from various collateral sources. The Defendant is entitled to a set-off of
any adjustments or sums written off by any medical provider based on any contractual
arrangements with any insurance company or any sums adjusted or written off due to the payer
being Medicaid or Medicare.
FOURTH AFFIRMATIVE DEFENSE
The Plaintiff is guilty of negligence that caused or contributed to any injuries or damages
allegedly sustained and, therefore, any award should be reduced accordingly, pursuant to the
doctrine of comparative negligence.
FIFTH AFFIRMATIVE DEFENSE
The Plaintiff’s claims for incidental and medical bills allegedly incurred as a result of
alleged injuries are exaggerated, unnecessary, and unreasonable, and/or were not reasonably
necessary or related to or caused by the alleged accident.
SIXTH AFFIRMATIVE DEFENSE
The Plaintiff’s claims for lost wages allegedly incurred as a result of alleged injuries are
exaggerated, unreasonable, and/or were not related to or caused by the alleged accident.
SEVENTH AFFIRMATIVE DEFENSE
The Plaintiff has failed to mitigate her damages, if any, and is not entitled to recover any
damages that could have been mitigated.
EIGHTH AFFIRMATIVE DEFENSE
The Defendant is entitled to any relief contained in §768.81, Fla. Stat., pertaining to
comparative negligence and limiting the doctrine of joint and several liability.
NINTH AFFIRMATIVE DEFENSE
In the event of the return of an award for future economic losses, the Defendant is
entitled to seek payment as provided for by §768.78, Fla. Stat.
3
Kubicki Draper • 9100 S. Dadeland Blvd., Suite 1800 Miami, Florida 33156 • T: (305) 374-1212 • F: (305) 374-7846
Torres v. Winn-Dixie
Case No.: 22-024117 CA 01
TENTH AFFIRMATIVE DEFENSE
The Plaintiff’s alleged injuries were solely the result of negligence on the part of
third parties, who were not in the care, custody, control, and/or supervision of the Defendant, and
therefore, the Plaintiff is barred from recovery as against the Defendant. Accordingly, pursuant
to the Supreme Court Decision in Nash v. Wells Fargo, the Defendant reserves it’s right to
amend it’s affirmative defenses as to Third Party Negligence, and name any additional Third
Parties up to the time of trial.
ELEVENTH AFFIRMATIVE DEFENSE
Any recovery should be reduced and/or barred by any settlement, judgment, and/or
payment of any kind by any individual and/or entity in connection with the subject matter in the
incident described in the Complaint.
TWELFTH AFFIRMATIVE DEFENSE
The Plaintiff voluntarily used the premises that is the subject of this lawsuit knowing
it’s risks, if any, incidental to use and therefore, assumed all ordinary risks.
THIRTEENTH AFFIRMATIVE DEFENSE
Plaintiff failed to take ordinary and reasonable care in conducting herself on the premises.
Plaintiff’s failure to use all ordinary care and reasonable care was the direct and proximate cause
of Plaintiff’s damages.
FOURTEENTH AFFIRMATIVE DEFENSE
4
Kubicki Draper • 9100 S. Dadeland Blvd., Suite 1800 Miami, Florida 33156 • T: (305) 374-1212 • F: (305) 374-7846
Torres v. Winn-Dixie
Case No.: 22-024117 CA 01
The Defendant had insufficient notice regarding the problems complained of by Plaintiff.
Any and all conditions complained of by Plaintiff existed for such a short period of time that
there was no notice so that corrective action could be taken.
FIFTEENTH AFFIRMATIVE DEFENSE
Any disability, disfigurement or injury claims alleged by Plaintiff are as a result of pre-
existing condition or conditions or were caused by a subsequent injury or injuries, and were not
caused or aggravated by any alleged acts of negligence of Defendant.
SIXTEENTH AFFIRMATIVE DEFENSE
Defendant affirmatively states that the Plaintiff had equal or superior knowledge of
the open and obvious natural condition(s) complained of, and accordingly, Plaintiff is barred
from recovery as a matter of law.
DEMAND FOR JURY TRIAL
Defendant hereby demands a trial by jury on all issues so triable.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 1st day of May, 2023, I electronically filed the
foregoing with the Clerk of the Court by using Florida Courts eFiling Portal to counsel on the
attached Service List.
Kubicki Draper
9100 S. Dadeland Blvd., 18th Floor
Miami, Florida 33156
Direct Line: (305) 982-6731
CW-KD@KubickiDraper.com
5
Kubicki Draper • 9100 S. Dadeland Blvd., Suite 1800 Miami, Florida 33156 • T: (305) 374-1212 • F: (305) 374-7846
Torres v. Winn-Dixie
Case No.: 22-024117 CA 01
(for pleadings only)
CW@kubickidraper.com
joa@kubickidraper.com
BY: /s/ __Charles Watkins___________
CHARLES WATKINS
Florida Bar No. 976253
6
Kubicki Draper • 9100 S. Dadeland Blvd., Suite 1800 Miami, Florida 33156 • T: (305) 374-1212 • F: (305) 374-7846
Preview
Filing # 172437405 E-Filed 05/04/2023 12:07:43 PM SANTA SANTANA, IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND Plaintiff, FOR MIAMI-DADE COUNTY, FLORIDA v. CIRCUIT CIVIL DIVISION RASCAL NMB, LLC, CASE NO.: 2023-005788-CA-01 Defendant. ______________________________________/ PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’ AFFIRMATIVE DEFENSES Plaintiff, SANTA SANTANA, by and through undersigned counsel, and pursuant to the Florida Rules of Civil Procedure, hereby moves for an order striking certain Affirmative Defenses asserted by the Defendant, RASCAL NMB, LLC, and as basis therefore would show unto the Court as follows: 1. This is an action for personal injuries arising from a slip and fall occurring on Defendant’s premises on August 20, 2022. 2. Defendant filed its Answer and Affirmative Defenses, which includes Sixteen Affirmative Defenses. A copy of Defendant’s Answer and Affirmative Defenses to Plaintiff’s Amended Complaint is attached hereto as Exhibit “A.” 3. Pursuant to Florida Rule of Civil Procedure 1.140 (f), “the plaintiff may test the sufficiency of…affirmative defenses by a motion to strike.” Hendricks v. Stark, 126 So. 293, 293- 94 (Fla. 1930) 4. An affirmative defense is one that admits the cause of action asserted by the proceeding pleading, but avoids liability, wholly or partly, by allegations of excuse, justification or other matter negating the cause of action. Florida East Coast Railway Company v. Peters, 73 So. 151 (Fla. 1916). 5. Affirmative defenses do not simply deny the facts of the opposing party’s claim. They raise some new matter which defeats an otherwise apparently valid claim.” Wiggins v. Portmay Corp., 430 So. 2d 541, 542 (Fla. 1st DCA 1983). 6. A defendant must allege each element of the defense and must state the factual basis for the same. L.B. McLeod Const. Co. v. Cooper, 134 So. 224 (Fla. 1931). 7. This requirement is to reasonably inform the adversary and provide them with a fair opportunity to prepare a response. Zito v. Washington Fed. Sav. & Loan Ass'n of Miami Beach, 318 So. 2d 175 (Fla. 3d DCA 1975). 8. Improperly pled Affirmative Defenses are susceptible to attack via a Motion to Strike which tests the legal sufficiency of a Defendant’s Affirmative Defense. See, Buns v. Equilease Corp., 357 So. 2d 786, 787 (Fla. 3d DCA 1978) (holding that motion to strike defense tests only legal sufficiency of a defense). 9. Defendant’s First and Fourteenth Affirmative Defenses are merely a denial of Plaintiff’s claims and allegations that Defendant was on notice of the dangerous condition and Defendant is negligent for causing Plaintiff’s injuries and therefore these affirmative defenses should be stricken. Tropical Exterminator Inc. v. Murray, 171 So.2d 432 (2d DCA 1965). 10. Defendant’s Seventh Affirmative Defense alleges that Plaintiff has failed to mitigate her damages. However, the defense of failure to mitigate damages is duplicative and subsumed within the comparative negligence defense, which Defendant pleads as its Fourth Affirmative Defense. This affirmative defense should therefore be stricken. See, Jacobs v. Westgate, 766 So. 2d 1175 (Fla. 3d DCA 2000). 11. Defendant’s Eighth Affirmative Defense, again alleges it is entitled to any relief pertaining to Fla. Stat. §768.81, comparative negligence. This affirmative defense is therefore -2- SIMON TRIAL FIRM, ATTORNEYS AT LAW redundant of Defendant’s Fourth Affirmative Defense and should therefore be stricken. Fla. R. Civ. Pro. 1.140(f). 12. Defendant’s Tenth Affirmative Defense alleges Plaintiff’s “injuries were solely the result of the negligence on the part of third parties, who were not in the care, custody, control and/or supervision of Defendant” pursuant to Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). However, Defendant’s affirmative defense does not identify this non-party tortfeasor nor provide any details as to how this non-party is alleged to be at fault. Florida law requires that in order to include a non-party on the verdict form, the defendant must specifically identify the non-party. Nash v. Wells Fargo Guard Services, Inc., 678 So. 2d 1262, 1264 (Fla. 1996); see also, Lagueux v. Union Carbide Corp., 861 So. 2d 87 (Fla. 4th DCA 2003). Because the Defendant has not identified this non-party, the Plaintiff is unable to rebut this affirmative defense in any meaningful way. Therefore, allowing this unknown party on the verdict form would severally prejudice the Plaintiff, and should therefore be stricken. 13. Defendant’s Twelfth Affirmative Defense alleges that Plaintiff assumed the risk of her injury. The Supreme Court, in Kendrick v. Ed's Beach Service, Inc., 577 So. 2d. 936 (Fla. 1991), distinguished the law with respect to cases involving implied assumption of risk and an express assumption of risk. Those cases where implied assumption of risk was inherent in the activity is controlled by comparative negligence principles (which Defendant alleges as its Fourth Affirmative Defense). Implied assumption of risk may not be asserted as an ordinary defense to break the chain of legal causation. The Court further went on to indicate that express assumption of risk was a proper defense only in actions involving participants in contact sports. See also, Black Burn v. Dorta, 348 So.2nd 287 (Fla. 1977), Mazzeo v. City of Sabastian, 550 So.2nd 1113 (Fla. 1989), and Petruzzella v. Church on The Rock of Palm Coast, Inc., 42 Fla. L. Weekly D 1141 (5th -3- SIMON TRIAL FIRM, ATTORNEYS AT LAW DCA 2017).The Defendant’s allegation of assumption of risk is improperly pled and, therefore, should be stricken from Defendant’s Affirmative Defenses. 14. Finally, Defendant’s Sixteenth Affirmative Defense, which alleges Plaintiff had equal or superior knowledge of the open and obvious condition complained of, is duplicative of Defendant’s Second Affirmative Defense which also alleges the condition was open and obvious and known to the Plaintiff. Therefore this affirmative defense is redundant and should be stricken. Fla. R. Civ. Pro. 1.140(f). WHEREFORE, Plaintiff, SANTA SANTANA, respectfully requests that this Honorable Court grant this Motion and enter an Order striking the foregoing Affirmative Defenses and grant any other relief this Court deems just and proper under the circumstances. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was served via E- Mail this 4th day of May, 2023 to: Jonathan O. Aihie, Esq., Attorney for Defendant, Kubicki Draper, 9100 South Dadeland Blvd., 18th Floor, Miami, Florida 33156; Telephone: (305) 982- 67400; Email Designations: cw@kubickidraper.com SIMON TRIAL FIRM Attorneys for Plaintiff First Citizens Bank Tower 2601 South Bayshore Drive, Suite 1010 Miami, Florida 33133 Telephone: (305) 375-6500 Facsimile: (305) 375-0388 Email: pleadings@simon-trial.com By: /s/ Kyle A. Quintana RONALD M. SIMON, ESQ. Florida Bar No.: 165262 KYLE A. QUINTANA, ESQ. Florida Bar No.: 1003110 -4- SIMON TRIAL FIRM, ATTORNEYS AT LAW 0173719 IN THE COUNTY COURT OF THE 11TH JUDICIAL CIRCUIT IN FOR MIAMI- DADE COUNTY, FLORIDA SANTA SANTANA CASE NO.: 2023-005788-CA-01 Plaintiff, v. RASCAL NMB, LLC Defendant. / DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S AMENDED COMPLAINT FOR DAMAGES Defendant, Rascal NMB, LLC (“Defendant”), by and through its undersigned counsel, and pursuant to the Florida Rules of Civil Procedure, hereby files its Answer and Affirmative Defenses to Plaintiff’s, Santa Santana (“Plaintiff”) Complaint, and as grounds states the following: GENERAL ALLEGATIONS 1. Denied. 2. Without knowledge. 3. Admitted. 4. Admitted. 5. Denied as phrased. 6. Without knowledge. 7. Denied as phrased. 8. Denied as phrased. 9. Denied as phrased. 10. Denied as phrased. 11. Denied as phrased. Exhibit "A" Filed by eFileMadeEasy.com: Filing #172156725 Electronically Filed 05/01/2023 02:16:44 PM EST Torres v. Winn-Dixie Case No.: 22-024117 CA 01 12. Denied. 13. Denied. 14. Denied. 15. Denied. 16. Denied. 17. Denied. 18. Denied. Any allegation not specifically admitted is denied. DEMAND FOR JURY TRIAL Defendant demands a jury trial on all issues so triable of right. AFFIRMATIVE DEFENSES In further answering Plaintiff’s complaint, Defendant states: FIRST AFFIRMATIVE DEFENSE The Defendant is not guilty of any negligence which was the legal cause of loss, injuries, or damages, if any, to the Plaintiff herein. SECOND AFFIRMATIVE DEFENSE Defendant is not liable for the injuries allegedly sustained by the Plaintiff because the dangers complained of in the subject of this lawsuit was open and obvious and known to the Plaintiff. THIRD AFFIRMATIVE DEFENSE The Defendant is entitled to a set-off against the damages Plaintiff alleges due to monies paid to or on behalf of Plaintiff on account of wages, medical insurance payments, workers’ compensation benefits, settlements, med-pay, disability benefits or other benefits that Plaintiff 2 Kubicki Draper • 9100 S. Dadeland Blvd., Suite 1800 Miami, Florida 33156 • T: (305) 374-1212 • F: (305) 374-7846 Torres v. Winn-Dixie Case No.: 22-024117 CA 01 received or may receive from various collateral sources. The Defendant is entitled to a set-off of any adjustments or sums written off by any medical provider based on any contractual arrangements with any insurance company or any sums adjusted or written off due to the payer being Medicaid or Medicare. FOURTH AFFIRMATIVE DEFENSE The Plaintiff is guilty of negligence that caused or contributed to any injuries or damages allegedly sustained and, therefore, any award should be reduced accordingly, pursuant to the doctrine of comparative negligence. FIFTH AFFIRMATIVE DEFENSE The Plaintiff’s claims for incidental and medical bills allegedly incurred as a result of alleged injuries are exaggerated, unnecessary, and unreasonable, and/or were not reasonably necessary or related to or caused by the alleged accident. SIXTH AFFIRMATIVE DEFENSE The Plaintiff’s claims for lost wages allegedly incurred as a result of alleged injuries are exaggerated, unreasonable, and/or were not related to or caused by the alleged accident. SEVENTH AFFIRMATIVE DEFENSE The Plaintiff has failed to mitigate her damages, if any, and is not entitled to recover any damages that could have been mitigated. EIGHTH AFFIRMATIVE DEFENSE The Defendant is entitled to any relief contained in §768.81, Fla. Stat., pertaining to comparative negligence and limiting the doctrine of joint and several liability. NINTH AFFIRMATIVE DEFENSE In the event of the return of an award for future economic losses, the Defendant is entitled to seek payment as provided for by §768.78, Fla. Stat. 3 Kubicki Draper • 9100 S. Dadeland Blvd., Suite 1800 Miami, Florida 33156 • T: (305) 374-1212 • F: (305) 374-7846 Torres v. Winn-Dixie Case No.: 22-024117 CA 01 TENTH AFFIRMATIVE DEFENSE The Plaintiff’s alleged injuries were solely the result of negligence on the part of third parties, who were not in the care, custody, control, and/or supervision of the Defendant, and therefore, the Plaintiff is barred from recovery as against the Defendant. Accordingly, pursuant to the Supreme Court Decision in Nash v. Wells Fargo, the Defendant reserves it’s right to amend it’s affirmative defenses as to Third Party Negligence, and name any additional Third Parties up to the time of trial. ELEVENTH AFFIRMATIVE DEFENSE Any recovery should be reduced and/or barred by any settlement, judgment, and/or payment of any kind by any individual and/or entity in connection with the subject matter in the incident described in the Complaint. TWELFTH AFFIRMATIVE DEFENSE The Plaintiff voluntarily used the premises that is the subject of this lawsuit knowing it’s risks, if any, incidental to use and therefore, assumed all ordinary risks. THIRTEENTH AFFIRMATIVE DEFENSE Plaintiff failed to take ordinary and reasonable care in conducting herself on the premises. Plaintiff’s failure to use all ordinary care and reasonable care was the direct and proximate cause of Plaintiff’s damages. FOURTEENTH AFFIRMATIVE DEFENSE 4 Kubicki Draper • 9100 S. Dadeland Blvd., Suite 1800 Miami, Florida 33156 • T: (305) 374-1212 • F: (305) 374-7846 Torres v. Winn-Dixie Case No.: 22-024117 CA 01 The Defendant had insufficient notice regarding the problems complained of by Plaintiff. Any and all conditions complained of by Plaintiff existed for such a short period of time that there was no notice so that corrective action could be taken. FIFTEENTH AFFIRMATIVE DEFENSE Any disability, disfigurement or injury claims alleged by Plaintiff are as a result of pre- existing condition or conditions or were caused by a subsequent injury or injuries, and were not caused or aggravated by any alleged acts of negligence of Defendant. SIXTEENTH AFFIRMATIVE DEFENSE Defendant affirmatively states that the Plaintiff had equal or superior knowledge of the open and obvious natural condition(s) complained of, and accordingly, Plaintiff is barred from recovery as a matter of law. DEMAND FOR JURY TRIAL Defendant hereby demands a trial by jury on all issues so triable. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 1st day of May, 2023, I electronically filed the foregoing with the Clerk of the Court by using Florida Courts eFiling Portal to counsel on the attached Service List. Kubicki Draper 9100 S. Dadeland Blvd., 18th Floor Miami, Florida 33156 Direct Line: (305) 982-6731 CW-KD@KubickiDraper.com 5 Kubicki Draper • 9100 S. Dadeland Blvd., Suite 1800 Miami, Florida 33156 • T: (305) 374-1212 • F: (305) 374-7846 Torres v. Winn-Dixie Case No.: 22-024117 CA 01 (for pleadings only) CW@kubickidraper.com joa@kubickidraper.com BY: /s/ __Charles Watkins___________ CHARLES WATKINS Florida Bar No. 976253 6 Kubicki Draper • 9100 S. Dadeland Blvd., Suite 1800 Miami, Florida 33156 • T: (305) 374-1212 • F: (305) 374-7846