Answer: ROSA LINARES VS UPTOWN BUFFET ACQUISITION CORPORATION | Trellis.Law

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On March 20, 2023 a Answer was filed involving a dispute between Linares, Rosa, and Uptown Buffet Acquisition Corporation, for Comm Premises Liability in the District Court of Miami-Dade County.

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Filing # 178225622 E-Filed 07/25/2023 10:53:10 PM

IN THE CIRCUIT COURT OF THE
11TH JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA

CIRCUIT CIVIL DIVISION
CASE NO.: 2023-006772-CA-01
ROSA LINARES,

Plaintiff,
vs.

UPTOWN BUFFET ACQUISITION
CORPORATION,

Defendant.
_______________________________/

DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S
COMPLAINT

Defendant, UPTOWN BUFFET ACQUISITION CORPORATION, (“Defendant” or

“Uptown Buffet”), pursuant to Fla. R. Civ. P. 1.110, 1.140(f), and 1.140(b)(6) by and through its

undersigned counsel, files its Answer and Affirmative Defenses to Count I of Plaintiff’s

Complaint, and states as follows:

ANSWER

1. Admitted for jurisdictional purposes only; otherwise, denied.

2. Admitted.

3. Admitted.

4. Admitted.

5. Admitted.

6. Admitted in part that on May 30, 2022, Plaintiff was a guest upon the premises of

the Defendant. The remainder of the allegations of Paragraph 6 are denied.

Page 1
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAX
CASE NO.: 2023-006772-CA-01

COUNT I – CLAIM FOR PREMISES LIABILITY AGAINST DEFENDANT, UPTOWN
BUFFET ACQUISITION CORPORATION

7. Defendant reasserts its responses to paragraphs 1-6 hereinabove.

8. Denied as phrased.

9. Denied:

a. Denied.

b. Denied.

c. Denied.

d. Denied.

e. Denied.

f. Defendant Moves to strike Paragraph 9(f) of Plaintiff’s Complaint pursuant to

Fla. R. Civ. P. 1.140(f). Please see Defendant’s Motion to Strike filed

contemporaneously herewith.

g. Defendant Moves to strike Paragraph 9(g) of Plaintiff’s Complaint pursuant to

Fla. R. Civ. P. 1.140(f). Please see Defendant’s Motion to Strike filed

contemporaneously herewith.

h. Defendant Moves to strike Paragraph 9(h) of Plaintiff’s Complaint pursuant to

Fla. R. Civ. P. 1.140(f). Please see Defendant’s Motion to Strike filed

contemporaneously herewith.

i. Defendant Moves to strike Paragraph 9(i) of Plaintiff’s Complaint pursuant to

Fla. R. Civ. P. 1.140(f). Please see Defendant’s Motion to Strike filed

contemporaneously herewith.

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COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAX
CASE NO.: 2023-006772-CA-01

j. Defendant Moves to strike Paragraph 9(j) of Plaintiff’s Complaint pursuant to

Fla. R. Civ. P. 1.140(f). Please see Defendant’s Motion to Strike filed

contemporaneously herewith.

k. Defendant Moves to strike Paragraph 9(k) of Plaintiff’s Complaint pursuant to

Fla. R. Civ. P. 1.140(f). Please see Defendant’s Motion to Strike filed

contemporaneously herewith.

l. Defendant Moves to strike Paragraph 9(l) of Plaintiff’s Complaint pursuant to

Fla. R. Civ. P. 1.140(f). Please see Defendant’s Motion to Strike filed

contemporaneously herewith.

m. Defendant Moves to strike Paragraph 9(m) of Plaintiff’s Complaint pursuant to

Fla. R. Civ. P. 1.140(f). Please see Defendant’s Motion to Strike filed

contemporaneously herewith.

n. Defendant Moves to strike Paragraph 9(n) of Plaintiff’s Complaint pursuant to

Fla. R. Civ. P. 1.140(f). Please see Defendant’s Motion to Strike filed

contemporaneously herewith.

o. Defendant Moves to strike Paragraph 9(o) of Plaintiff’s Complaint pursuant to

Fla. R. Civ. P. 1.140(f). Please see Defendant’s Motion to Strike filed

contemporaneously herewith.

p. Defendant Moves to strike Paragraph 9(p) of Plaintiff’s Complaint pursuant to

Fla. R. Civ. P. 1.140(f). Please see Defendant’s Motion to Strike filed

contemporaneously herewith.

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COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAX
CASE NO.: 2023-006772-CA-01

q. Defendant Moves to strike Paragraph 9(q) of Plaintiff’s Complaint pursuant to

Fla. R. Civ. P. 1.140(f). Please see Defendant’s Motion to Strike filed

contemporaneously herewith.

r. Defendant Moves to strike Paragraph 9(r) of Plaintiff’s Complaint pursuant to

Fla. R. Civ. P. 1.140(f). Please see Defendant’s Motion to Strike filed

contemporaneously herewith.

10. Denied.

11. Denied.

COUNT II – CLAIM OF NEGLIGENCE UNDER THE NON-DELEGABLE DUTY
DOCTRINE AGAINST DEFENDANT, UPTOWN BUFFET ACQUISITION
CORPORATION

12-17. Defendant Moves to Dismiss Count II of Plaintiff’s Complaint pursuant to Fla. R.

Civ. P. 1.140(b)(6). Please see Defendant’s Motion to Dismiss Count II filed contemporaneously

herewith.

AFFIRMATIVE DEFENSES

Florida Statute §768.81; Comparative Fault

Defendant submits as its First Affirmative Defense, that the negligence of Plaintiff, caused

and/or contributed to the damages allegedly sustained by the Plaintiff and therefore, any award

rendered to the Plaintiff should be reduced and/or apportioned by the amount of Plaintiff’s

negligence. Specifically, Defendant asserts that Plaintiff breached her corresponding duty to

exercise reasonable care while walking through the surface floor of Defendant’s women’s

restroom which had been recently mopped with an open and obvious wet floor sign present on the

floor within the subject premises. Defendant further asserts that Plaintiff was comparatively

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COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAX
CASE NO.: 2023-006772-CA-01

negligent for failing to walk in a safe and cautious manner across a recently mopped surface floor

with an open and obvious wet floor sign present on the floor within the subject premises.

Duty to Warn

Defendant submits as its Second Affirmative Defense, that Defendant satisfied its duty to

warn the Plaintiff about the purported dangerous condition (i.e., recently mopped floor surface)

which was discoverable by the use of the Plaintiff’s own senses when she ignored the presence of

an open and obvious wet floor sign present on the restroom’s floor within the subject premises.

Moreover, Plaintiff would have had prior knowledge of the alleged condition referenced in her

Complaint, discharging any duty to warn by the Defendant.

Not Inherently Dangerous – Open and Obvious

Defendant submits as its Third Affirmative Defense, that the purported dangerous

condition (i.e., recently mopped floor surface) as alleged by the Plaintiff in her Complaint, was

an open and obvious condition, which does not constitute a dangerous condition in order to give

rise to liability due to the failure to maintain the premises in a reasonably safe condition.

Implied Assumption of Risk

Defendant submits as their Fourth Affirmative Defense, that the Plaintiff’s negligence

action is barred and/or should be reduced due to Plaintiff’s knowledge, appreciation, and voluntary

exposure to potential slip hazards and known risks inherent or commonly expected when

attempting to walk across a recently mopped floor surface with an open and obvious wet floor sign

present in the restroom within the subject premises in a manner which was unfit and/or unsafe,

thereby completely barring and/or reducing any recovery for injury or loss against Defendant after

assuming these risks and proceeding nonetheless to walk across the recently mopped restroom

Page 5
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAX
CASE NO.: 2023-006772-CA-01

floor under these circumstances which she had a reasonable opportunity to avoid it and voluntarily

exposed herself to the risk.

Florida Statute §768.76; Collateral Sources of Indemnity

Defendant submits as its Fourth Affirmative Defense, that to the extent the Plaintiff either

has received or is entitled to receive collateral sources benefits, the Defendant is entitled to a set

off or reduction in the amount of any verdict and/or judgment which may be entered against them

in this cause. Goble v. Frohman, 901 So 2d 830 (Fla. 2005); Thyssenkrupp Elevator Corp v. Lasky,

868 So. 2d 547 (Fla. 4th DCA 2003).

Failure to Mitigate Damages

Defendant submits as its Fifth Affirmative Defense, that under Florida law, a person who

has been damaged by the alleged negligence of another has an affirmative duty to pursue

reasonable and reasonably available means of mitigating and adverse effects of the injury.

Specifically, Plaintiff has failed to mitigate her damages, including but not limited to failing to

submit all payable medical bills to her health insurer (and instead, executing a letter of protection

to her medical provider), thus, depriving Defendant of the contractual discount available as a third-

party beneficiary of the contract between the Plaintiff and Provider. Goble v. Frohman, 901 So.

2d 830 (Fla. 2005); Thyssenkrupp Elevator Corp v. Lasky, 868 So. 2d 547 (Fla. 4th DCA 2003);

Fla. Stat. § 641.3154. To the extent that Plaintiff has failed to mitigate damages, the Defendant is

entitled to a reduction of liability by all amounts of damages which could have been prevented had

reasonable efforts to mitigate been made by the Plaintiff.

Page 6
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAX
CASE NO.: 2023-006772-CA-01

Medical Bill Write-Offs/Contractual Discounts

Defendant submits as its Sixth Affirmative Defense, that the expenses claimed by the

Plaintiff has been paid in whole or in part by collateral sources and have received write-offs or

contractual discounts of which the Plaintiff is not liable and which would be considered

unrecoverable phantom damages in accordance with Goble vs. Frohman, 901 So. 2d 830 (Fla.

2005); Thyssenkrupp Elevator Corp. vs. Lasky, 868 So. 2d 547 (Fla. 4th DCA 2003).

Letters of Protection – Fla. Stat. § 768.0427

Defendant submits as its Seventh Affirmative Defense, that Plaintiff’s damages, if any, for

medical treatment performed under letters of protection are limited by the provisions of Fla. Stat.

§ 768.0427(2)(a) to amounts actually paid by Plaintiff or on her behalf; by Fla. Stat. §

768.0427(2)(b)(3) to 120% of the Medicare reimbursement rate, or, if there is no applicable

Medicare rate for a service, 170% of the applicable state Medicaid rate; and further pursuant to

Fla. Stat. § 768.0427(4), all of which provisions apply to this case.

Failure to State a Claim
(Count II – Non-Delegable Duty)

Defendant submits as its Eighth Affirmative Defense, that Count II of the Complaint fails

to state a claim for negligence under the non-delegable duty doctrine because it is not a standalone

cause of action and duplicates the claim for premises liability (Count I). As stated in Defendant’s

Motion to Dismiss filed contemporaneously herewith, a claim of a breach of a non-delegable duty

is not a separate cause of action. As such, Count II of Plaintiff’s Complaint fails to state a plausible

claim as Plaintiff has failed to link key facts to be able to assumingly pursue her nondelegable duty

claim which is grounds for dismissal.

Page 7
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAX
CASE NO.: 2023-006772-CA-01

DEMAND FOR JURY TRIAL

Defendant demands trial by jury of all issues so triable.

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that on this 25th day of July, 2023, a true and correct copy of the

foregoing was filed with the Clerk of Miami-Dade County by using the Florida Courts e-Filing

Portal, which will send an automatic e-mail message to the following parties registered with the e-

Filing Portal system: Travis J. Stulz, Esq., of Weinstein Legal, P.A., at travis@weinstein-

legal.com, sandy@ weinstein-legal.com, and service@ weinstein-legal.com, Attorneys for

Plaintiff.

COLE, SCOTT & KISSANE, P.A.
Counsel for Defendant
Cole, Scott & Kissane Building
9150 South Dadeland Boulevard, Suite 1400
P.O. Box 569015
Miami, Florida 33256
Telephone (786) 268-6759
Facsimile (305) 373-2294
Primary e-mail: david.herrero@csklegal.com
Secondary e-mail: brenda.morales@csklegal.com

By: s/ David A. Herrero
DAVID A. HERRERO
Florida Bar No.: 85962

Page 8
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAX

Case Info

Case No.

(Subscribe to View)

Document Filed Date

July 25, 2023

Case Filing Date

March 20, 2023

County

Category

Comm Premises Liability

Status

OPEN

Parties

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