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Filing # 71910165 E-Filed 05/09/2018 03:32:53 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL DIVISION
CASE No.: 18-000223-CA
DANIEL SHELATZ and ALYN SHELATZ,
Plaintiffs,
vs.
PUNTA GORDA HMA, LLC d/b/a BAYFRONT
HEALTH PUNTA GORDA,
Defendant.
DEFENDANT’. PUNTA GORDA HMA, LLC d/b/a BAYFRONT HEALTH PUNTA
GORDA, ANSWER AND AFFIRMATIVE DEFENSES
TO PLAINTIFFS’ AMENDED COMPLAINT
Defendant, PUNTA GORDA HMA, LLC d/b/a BAYFRONT HEALTH PUNTA
GORDA, by and through the undersigned counsel and pursuant to Rules 1.100,
1.110, and 1.140, Florida Rules of Civil Procedure, hereby responds to Plaintiffs’
Amended Complaint in like-numbered paragraphs, and states as follows:
JURISDICTION AND VENUE
1 Admitted for jurisdictional purposes only; otherwise denied and
Defendant demands strict proof thereof.
2 Admitted for jurisdictional purposes only; otherwise denied and
Defendant demands strict proof thereof.
PARTIES
3 Defendant is without knowledge as to the allegations contained in
Paragraph (3) of Plaintiffs’ Amended Complaint, and therefore, the allegations are
denied and Defendant demands strict proof thereof.
4. Admitted for jurisdictional purposes only; otherwise denied and
Defendant demand strict proof thereof.
5 Admitted to the extent that Punta Gorda HMA, LLC d/b/a Bayfront
Health Punta Gorda conducts business as a hospital located at 809 E. Marion Avenue,
Punta Gorda, Florida; and moreover, that Punta Gorda HMA, LLC d/b/a Bayfront
Health Punta Gorda owns, manages, controls, and maintains portions of said
premises. Defendant is without knowledge as to the remaining allegations
contained in Paragraph (5) of Plaintiffs’ Amended Complaint and therefore, the
allegations are denied and Defendant demands strict proof thereof.
COUNT I - Negligenc
6. Defendant adopts, reasserts, and incorporates their responses to
Paragraphs (1) - (5) of the Plaintiffs’ Amended Complaint as if fully set forth herein.
7 Defendant is without knowledge as to the allegations contained in
Paragraph (7) of Plaintiffs’ Amended Complaint, and therefore, the allegations are
denied and Defendant demands strict proof thereof.
8 Denied as phrased and Defendant demands strict proof thereof.
9 Denied as phrased and Defendant demands strict proof thereof.
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10. Defendant is without knowledge as to the allegations contained in
Paragraph (10) of Plaintiffs’ Amended Complaint, and therefore, the allegations are
denied and Defendant demands strict proof thereof.
11. The allegations as phrased in Paragraph (11) of Plaintiffs’ Amended
Complaint are incomplete, vague, and/or call for legal conclusions; and therefore,
those allegations are denied and Defendant demands strict proof thereof.
12. Defendant denies the allegations contained in Paragraph (12),
including all subparts contained therein and labeled as (a) - (e) of Plaintiffs’
Amended Complaint, and demands strict proof thereof.
13. Defendant denies the allegations contained in Paragraph (13) of
Plaintiffs’ Amended Complaint, and demands strict proof thereof.
14. Defendant denies the allegations contained in Paragraph (14),
including all subparts contained therein and labeled as (a) - (k) of Plaintiffs’
Amended Complaint, and demands strict proof thereof.
15. Defendant denies the allegations contained in Paragraph (15),
including all subparts contained therein and labeled as (a) - (b) of Plaintiffs’
Amended Complaint, and demands strict proof thereof.
Defendant specifically denies any and all allegations contained or asserted in
the unnumbered paragraph at the end of Count I of Plaintiff's’ Amended Complaint
and demands strict proof thereof.
Page |3 of 9
DEFENDANT’S AFFIRMATIVE DEFENSES
First Affirmative Defense
Defendant affirmatively asserts and alleges that Plaintiff, DANIEL SHELATZ,
was himself negligent, and therefore, should be barred in recovery, or in the
alternative, any recovery to DANIEL SHELATZ should be reduced proportionately by
his comparative negligence.
Second Affirmative Defense
Defendant affirmatively asserts and alleges that Plaintiff, DANIEL SHELATZ,
failed to mitigate his damages as required by law.
Third Affirmative Defense
Defendant affirmatively asserts and alleges that in the event Plaintiffs should
prevail in their claims against the Defendant, this Defendant would be entitled to a
setoff of any and all collateral source benefits either paid or payable on behalf of
Plaintiff.
Fourth Affirmative Defense
Defendant affirmatively asserts and alleges that Plaintiffs’ damages, if any,
were not proximately caused by any alleged acts or omissions on the part of this
Defendant.
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Fifth Affirmative Defense
Defendant affirmatively asserts and alleges that it did not breach any duty or
duties owed to Plaintiff, DANIEL SHELATZ, and fully and faithfully complied with all
of its obligations owed to the Plaintiff under Florida Law.
Sixth Affirmative Defense
Defendant affirmatively asserts and alleges that Plaintiff's (DANIEL SHELATZ)
injuries, if any, were the result of a superseding or intervening cause.
Seventh Affirmative Defense
Defendant affirmatively asserts and alleges that if any injury or damage was
sustained by Plaintiff (DANIEL SHELATZ), some or all of it was based upon the
natural and inexorable progression of a pre-existing and/or congenital and/or
hereditary condition that is not the responsibility of this Defendant, and therefore,
Plaintiffs are not entitled to any recovery based upon said injury or damage
sustained as a result of those conditions.
Eighth Affirmative Defens
Defendant affirmatively asserts and alleges that Plaintiffs’ injuries and/or
damages, if any, were caused wholly or in part by third persons or parties over
whom this Defendant had no custody or control - to wit: AMCSO Air Mechanical and
Services Corporation, including any of its employees and/or agents working on the
Defendant's premises at the time of the subject incident. At this time, Defendant
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further reserves the right to a jury instruction pursuant to Section 768.81(3), Fla.
Stat., and to a Verdict Form that permits the jury to apportion liability among all
alleged tortfeasors, pursuant to the Florida Supreme Court's decisions in Fabre v.
Marin, 623 So.2d 1182 (Fla. 1993) and Nash v. Wells Fargo Guard Services
Incorporated, 678 So.2d 1262 (Fla. 1996). Defendant reserves the right to amend
this affirmative defense in the event that discovery should reveal any other parties
who may be at fault.
Ninth Affirmative Defens
Defendant affirmatively asserts and alleges that Plaintiff (DANIEL SHELATZ)
knew of the existence of the dangerous condition described in his Complaint and/or
should have known of the existence of the dangerous condition described in his
Complaint by exercising due diligence in traversing the premises; and moreover,
that Plaintiff (DANIEL SHELATZ) realized and appreciated the possibility of
sustaining an injury as a result of the dangerous condition, and having had a
reasonable opportunity to avoid it, voluntarily exposed himself to the alleged
dangerous condition.
Tenth Affirmati ef
Defendant affirmatively asserts and alleges that the dangerous condition
described in Paragraphs (8), (9), (10) and (12) of Plaintiffs’ Amended Complaint - to
wit: “an opening on the roof” - was such an open, obvious, and apparent condition,
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for which the Plaintiff or any reasonable person by exercising reasonable care
should have avoided; and as such, this Defendant cannot be held liable for any of the
Plaintiffs’ claims for legal damages sought in this lawsuit.
El nth Affir ‘ive Defens
Defendant affirmatively asserts and alleges that there was no actual or
constructive notice of any alleged dangerous condition(s) existing on the subject
premises, and therefore, no duty was owed to the Plaintiff (DANIEL SHELATZ), and
Defendant cannot be liable for any of his claims and/or injuries asserted in this
lawsuit.
Twelfth Affirmative Defense
Defendant reserves the right to amend these Affirmative Defenses as
discovery progresses up and through the time of trial.
DEMAND F' T. BY JURY
Defendant demands a trial by jury on all issues so triable.
WHEREFORE, Defendant, PUNTA GORDA HMA, LLC d/b/a BAYFRONT
HEALTH PUNTA GORDA, having fully answered Plaintiffs’ Amended Complaint,
demands judgment in its favor with costs, and any additional relief this Court deems
just and proper.
Page |7 of 9
CERTIFICATE OF SERVICE
1 HEREBY CERTIFY that I electronically filed the foregoing with the Clerk of
Court on this 9th day of May, 2018, using the Florida Courts e-Filing Portal which
will send a notice of electronic filing as identified in the attached Service List.
LA CAVA & JACOBSON, P.A.
Attorneys for Defendant, Bayfront Health Punta Gorda
2590 Northbrooke Plaza Drive, Suite 307
Naples, Florida 34119
Telephone : 239.300.9679
Facsimile : 239.734.3546
Florida Bar No: 0610321
LOUIS J. LA CAVA, ESQ.
Florida Bar No. 0507880
khouston@lacavajacobson.com
lacava@lacavajacobson.com
kkeyte@lacavajacobson.com
leddings@lacavajacobson.com
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SERVICE LIST.
Christopher D. Gray, Esq.
Florin Gray Bouzas Owens, LLC
16524 Pointe Village Drive, Suite 100
Lutz, FL 33558
Phone 1 727.254.5255
Fax 1 727.483.7942
chris@fgbolaw.com
debbie@fgbolaw.com
Counsel for Plaintiff
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Preview
Filing # 71910165 E-Filed 05/09/2018 03:32:53 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL DIVISION CASE No.: 18-000223-CA DANIEL SHELATZ and ALYN SHELATZ, Plaintiffs, vs. PUNTA GORDA HMA, LLC d/b/a BAYFRONT HEALTH PUNTA GORDA, Defendant. DEFENDANT’. PUNTA GORDA HMA, LLC d/b/a BAYFRONT HEALTH PUNTA GORDA, ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ AMENDED COMPLAINT Defendant, PUNTA GORDA HMA, LLC d/b/a BAYFRONT HEALTH PUNTA GORDA, by and through the undersigned counsel and pursuant to Rules 1.100, 1.110, and 1.140, Florida Rules of Civil Procedure, hereby responds to Plaintiffs’ Amended Complaint in like-numbered paragraphs, and states as follows: JURISDICTION AND VENUE 1 Admitted for jurisdictional purposes only; otherwise denied and Defendant demands strict proof thereof. 2 Admitted for jurisdictional purposes only; otherwise denied and Defendant demands strict proof thereof. PARTIES 3 Defendant is without knowledge as to the allegations contained in Paragraph (3) of Plaintiffs’ Amended Complaint, and therefore, the allegations are denied and Defendant demands strict proof thereof. 4. Admitted for jurisdictional purposes only; otherwise denied and Defendant demand strict proof thereof. 5 Admitted to the extent that Punta Gorda HMA, LLC d/b/a Bayfront Health Punta Gorda conducts business as a hospital located at 809 E. Marion Avenue, Punta Gorda, Florida; and moreover, that Punta Gorda HMA, LLC d/b/a Bayfront Health Punta Gorda owns, manages, controls, and maintains portions of said premises. Defendant is without knowledge as to the remaining allegations contained in Paragraph (5) of Plaintiffs’ Amended Complaint and therefore, the allegations are denied and Defendant demands strict proof thereof. COUNT I - Negligenc 6. Defendant adopts, reasserts, and incorporates their responses to Paragraphs (1) - (5) of the Plaintiffs’ Amended Complaint as if fully set forth herein. 7 Defendant is without knowledge as to the allegations contained in Paragraph (7) of Plaintiffs’ Amended Complaint, and therefore, the allegations are denied and Defendant demands strict proof thereof. 8 Denied as phrased and Defendant demands strict proof thereof. 9 Denied as phrased and Defendant demands strict proof thereof. Page |2 of 9 10. Defendant is without knowledge as to the allegations contained in Paragraph (10) of Plaintiffs’ Amended Complaint, and therefore, the allegations are denied and Defendant demands strict proof thereof. 11. The allegations as phrased in Paragraph (11) of Plaintiffs’ Amended Complaint are incomplete, vague, and/or call for legal conclusions; and therefore, those allegations are denied and Defendant demands strict proof thereof. 12. Defendant denies the allegations contained in Paragraph (12), including all subparts contained therein and labeled as (a) - (e) of Plaintiffs’ Amended Complaint, and demands strict proof thereof. 13. Defendant denies the allegations contained in Paragraph (13) of Plaintiffs’ Amended Complaint, and demands strict proof thereof. 14. Defendant denies the allegations contained in Paragraph (14), including all subparts contained therein and labeled as (a) - (k) of Plaintiffs’ Amended Complaint, and demands strict proof thereof. 15. Defendant denies the allegations contained in Paragraph (15), including all subparts contained therein and labeled as (a) - (b) of Plaintiffs’ Amended Complaint, and demands strict proof thereof. Defendant specifically denies any and all allegations contained or asserted in the unnumbered paragraph at the end of Count I of Plaintiff's’ Amended Complaint and demands strict proof thereof. Page |3 of 9 DEFENDANT’S AFFIRMATIVE DEFENSES First Affirmative Defense Defendant affirmatively asserts and alleges that Plaintiff, DANIEL SHELATZ, was himself negligent, and therefore, should be barred in recovery, or in the alternative, any recovery to DANIEL SHELATZ should be reduced proportionately by his comparative negligence. Second Affirmative Defense Defendant affirmatively asserts and alleges that Plaintiff, DANIEL SHELATZ, failed to mitigate his damages as required by law. Third Affirmative Defense Defendant affirmatively asserts and alleges that in the event Plaintiffs should prevail in their claims against the Defendant, this Defendant would be entitled to a setoff of any and all collateral source benefits either paid or payable on behalf of Plaintiff. Fourth Affirmative Defense Defendant affirmatively asserts and alleges that Plaintiffs’ damages, if any, were not proximately caused by any alleged acts or omissions on the part of this Defendant. Page |40f9 Fifth Affirmative Defense Defendant affirmatively asserts and alleges that it did not breach any duty or duties owed to Plaintiff, DANIEL SHELATZ, and fully and faithfully complied with all of its obligations owed to the Plaintiff under Florida Law. Sixth Affirmative Defense Defendant affirmatively asserts and alleges that Plaintiff's (DANIEL SHELATZ) injuries, if any, were the result of a superseding or intervening cause. Seventh Affirmative Defense Defendant affirmatively asserts and alleges that if any injury or damage was sustained by Plaintiff (DANIEL SHELATZ), some or all of it was based upon the natural and inexorable progression of a pre-existing and/or congenital and/or hereditary condition that is not the responsibility of this Defendant, and therefore, Plaintiffs are not entitled to any recovery based upon said injury or damage sustained as a result of those conditions. Eighth Affirmative Defens Defendant affirmatively asserts and alleges that Plaintiffs’ injuries and/or damages, if any, were caused wholly or in part by third persons or parties over whom this Defendant had no custody or control - to wit: AMCSO Air Mechanical and Services Corporation, including any of its employees and/or agents working on the Defendant's premises at the time of the subject incident. At this time, Defendant Page |5 of 9 further reserves the right to a jury instruction pursuant to Section 768.81(3), Fla. Stat., and to a Verdict Form that permits the jury to apportion liability among all alleged tortfeasors, pursuant to the Florida Supreme Court's decisions in Fabre v. Marin, 623 So.2d 1182 (Fla. 1993) and Nash v. Wells Fargo Guard Services Incorporated, 678 So.2d 1262 (Fla. 1996). Defendant reserves the right to amend this affirmative defense in the event that discovery should reveal any other parties who may be at fault. Ninth Affirmative Defens Defendant affirmatively asserts and alleges that Plaintiff (DANIEL SHELATZ) knew of the existence of the dangerous condition described in his Complaint and/or should have known of the existence of the dangerous condition described in his Complaint by exercising due diligence in traversing the premises; and moreover, that Plaintiff (DANIEL SHELATZ) realized and appreciated the possibility of sustaining an injury as a result of the dangerous condition, and having had a reasonable opportunity to avoid it, voluntarily exposed himself to the alleged dangerous condition. Tenth Affirmati ef Defendant affirmatively asserts and alleges that the dangerous condition described in Paragraphs (8), (9), (10) and (12) of Plaintiffs’ Amended Complaint - to wit: “an opening on the roof” - was such an open, obvious, and apparent condition, Page |6 of 9 for which the Plaintiff or any reasonable person by exercising reasonable care should have avoided; and as such, this Defendant cannot be held liable for any of the Plaintiffs’ claims for legal damages sought in this lawsuit. El nth Affir ‘ive Defens Defendant affirmatively asserts and alleges that there was no actual or constructive notice of any alleged dangerous condition(s) existing on the subject premises, and therefore, no duty was owed to the Plaintiff (DANIEL SHELATZ), and Defendant cannot be liable for any of his claims and/or injuries asserted in this lawsuit. Twelfth Affirmative Defense Defendant reserves the right to amend these Affirmative Defenses as discovery progresses up and through the time of trial. DEMAND F' T. BY JURY Defendant demands a trial by jury on all issues so triable. WHEREFORE, Defendant, PUNTA GORDA HMA, LLC d/b/a BAYFRONT HEALTH PUNTA GORDA, having fully answered Plaintiffs’ Amended Complaint, demands judgment in its favor with costs, and any additional relief this Court deems just and proper. Page |7 of 9 CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that I electronically filed the foregoing with the Clerk of Court on this 9th day of May, 2018, using the Florida Courts e-Filing Portal which will send a notice of electronic filing as identified in the attached Service List. LA CAVA & JACOBSON, P.A. Attorneys for Defendant, Bayfront Health Punta Gorda 2590 Northbrooke Plaza Drive, Suite 307 Naples, Florida 34119 Telephone : 239.300.9679 Facsimile : 239.734.3546 Florida Bar No: 0610321 LOUIS J. LA CAVA, ESQ. Florida Bar No. 0507880 khouston@lacavajacobson.com lacava@lacavajacobson.com kkeyte@lacavajacobson.com leddings@lacavajacobson.com Page |8 of 9 SERVICE LIST. Christopher D. Gray, Esq. Florin Gray Bouzas Owens, LLC 16524 Pointe Village Drive, Suite 100 Lutz, FL 33558 Phone 1 727.254.5255 Fax 1 727.483.7942 chris@fgbolaw.com debbie@fgbolaw.com Counsel for Plaintiff Page |9 of 9