CANTAVE

v.

HOLIDAY CVS, L.L.C.

Opposition to the Motion, ECF No. (“Response”), to which Defendant filed a Reply, ECF No. (“Reply”). The Court has carefully reviewed the Motion, the record in this case, the applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion is denied.

I. BACKGROUND

Plaintiff initiated this action on March 17, 2021. ECF No. [1-2] at 3.1 According to the Amended Complaint, Plaintiff was a business invitee at CVS pharmacy located at 11221 S.W. 152nd Street, Miami, Florida. ECF No. [5-1] ¶ 6. As Plaintiff was walking through the CVS pharmacy, she slipped and fell on the lid of a plastic bin, thereby sustaining injuries. Id. ¶¶ 8-9. Based on the foregoing, the Amended Complaint asserts two claims for relief: (1) premises liability

II. LEGAL STANDARD

A pleading in a civil action 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). Although a complaint “does not need detailed factual allegations,” it must provide “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); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)’s pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmedme accusation”). Nor can a complaint rest on “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the plaintiff’s allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiff. See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F. 3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F. Supp. 2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal conclusions, and courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cnty. Sheriff’s Office, 449 F. 3d 1342, 1352 (11th Cir. 2006). Moreover, “courts may infer from the factual

III. DISCUSSION

Defendant contends that the Amended Complaint is subject to dismissal because it impermissibly asserts claims of negligent mode of operation, which the Florida legislature abrogated in 2010 with the enactment of Fla. Stat. § 768.0755.3 Specifically, § 768.0755, entitled, “Premises liability for transitory foreign substances in a business establishment” provides as follows: (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. In her Response, Plaintiff argues that § 768.0755 merely shifts the burden of proof to Plaintiff to demonstrate that the business establishment had actual or constructive knowledge of the dangerous condition, and does not abrogate any common law theories of negligence. In other

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. The Motion, ECF No. , is DENIED.

2. Defendant shall file an Answer to the Amended Complaint, ECF No. [5-1], no later than August 17, 2021. DONE AND ORDERED in Chambers at Miami, Florida, on August³, 2021.

UNITED STATES DISTRICT JUDGE

Copies to: Counsel of Record