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Filing # 67084810 E-Filed 01/26/2018 11:28:00 AM IN THE CIRCUIT COURT FOR THE 17™ JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE 14-006177 KEITH UPHAM, Plaintiff, vs. BROWARD SHERIFF'S OFFICE, a political subdivision of the State of Florida, Defendant. / JOINT! MOTION FOR CONTINUANCE Plaintiff, Keith Upham, and Defendant, Scott Israel, as Sheriff of Broward County ("BSO"), by and through the parties' undersigned counsel and pursuant to Florida Rule of Civil Procedure 1.460, files this Motion for Continuance and states: 1. On October 2, 2017, this Court entered a Trial Order setting Calendar Call and Pretrial Conference for May 4, 2018 and the two-week Trial Period commencing on May 15, 2018. A true and attached Copy of the Trial Order is attached hereto as Exhibit A. 2. The Trial Order set March 30, 2018, as the deadline to complete all pretrial discovery. 3. On January 5, 2018, BSO filed its Motion for Summary Judgment. A true and attached Copy of the Motion for Summary Judgment is attached hereto as Exhibit B. 4, On January 8, 2018, Plaintiffs counsel filed a Motion to Allow Plaintiff to take Pictures of the Defendant's Premises, which is currently set for a fifteen (15) minute hearing on ' This Motion is made jointly by Plaintiff, Keith Upham, and Defendant, Scott Israel, as the Sheriff for Broward County. The executed verification page will be filed on a later date as a supplemental exhibit. /000025/01002103_1 *4* FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 1/26/2018 11:28:00 AM.****February 14, 2018 at 10:15a.m. A true and attached Copy of the Motion is attached hereto as Exhibit C. 5. Defendant's Counsel cannot set their Motion for Summary Judgment for hearing until all of Plaintiff's discovery has been completed. 6. Moreover, Plaintiff just recently requested to take the deposition of BSO's former employee Captain Mary Kopp; however, her deposition has yet to be coordinated. 7. Furthermore, a new trial date is requested that a ruling can be made on Defendant's Motion for Summary Judgment. If that Motion is denied, more extensive and expensive discovery will be conducted (i.e. obtain expert witnesses) to prepare for trial. 8. The parties are in agreement that additional time is needed to take depositions and to conduct discovery both prior to and after having the Motion for Summary Judgment ruled on. 9. This Joint Motion for Continuance of Trial is filed in good faith and not for purposes of delay. WHEREFORE, Plaintiff and Defendant request a continuance for this matter to be rolled over to this Court's trial period between July 10-27, 2018 and for any other relief permitted by this Court. Respectfully submitted, /s/ G. William Allen Jr. G. William Allen Jr., Esq. Florida Bar No. 186411 303 SW 6" Street Penthouse West Fort Lauderdale, FL 33315 Tel: (954) 522-4433 Fax: (954) 765-1919 Katgainey@aol.com Counsel for Plaintiff /000025/01002103_1 /s/ Seth Haimovitch Seth D. Haimovitch Florida Bat Number: 0085939 Haimovitch@kolawyers.com KOPELOWITZ OSTROW FERGUSON WEISELBEG GILBERT One West Las Olas, Ste 500 Fort Lauderdale, Florida 33301 Tel: (954) 525-4100 Fax: (954) 252-4300 Aitorneys for Defendant, BSOCERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via electronic mail to G. William Allen, JR., Esquire, Attorney for Plaintiff, Katgainey@aol.com, 303 SW 6" Street, Penthouse West, Fort Lauderdale, Florida 33315 on this 26" day of January, 2018. /000025/01002103_1 KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT Attorneys for Defendant. BSO One West Las Olas Blvd., Suite 500 Fort Lauderdale, Florida 33301 Telephone No. (954) 525-4100 Facsimile No. (954) 525-4300 By: /s/ Seth D. Haimovitch DAVID L. FERGUSON Florida Bar Number: 0981737 SETH D. HAIMOVITCH Florida Bar Number: 0085939 Ferguson@kolawyers.com Haimovitch@kolawyers.comEXHIBIT A Filing # 62292055 E-Filed 10/02/2017 06:58:19 PM IN THE CIRCUIT COURT OF THE 17' JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA. CASE NO, CACE14006177 DIVISION 08 Judge 08 Haimes, David A. (08) UNIFORM TRIAL ORDER i 17°" JUDICIAL CIRCUIT Keith Upham Plaintiff(s) / Petitioner(s) ORDER FOR PRETRIAL CONFERENCE AND v. CALENDAR CALL Broward County Sheriff's Office Defendant(s) / Respondent(s) / TRIAL PERIOD Commencing 05-15-2018 . This is a (3_) week calendar. CALL OF THE CALENDAR AND PRETRIAL CONFERENCE: 95-04-2018 at 9:30 AM 3 DAYS/ VXBERS X JURY NON-JURY THE ORDER OF TRIALS set during this period will be determined at the CALENDAR CALL. You are subject to being called to commence trial during any part of the above noted trial period. Failure of any party to attend the pretrial conference and calendar call may result in either the case being dismissed or a default being entered. The court has determined this case is ready for trial pursuant to Fla. R. Civ. P. 1.440. The case is set for trial before the undersigned Judge in Courtroom _ 16170, Broward County Courthouse, 201 S.E. 6t Street, Fort Lauderdale, Florida as stated above. You are advised your case may be placed into the 17' Circuit's "Civil Trial Pool" and is subject to being called for trial before any circuit civil judge. If placed in the Civil Trial Pool, you MUST be prepared to proceed to trial if called. ONLY the division judge or administrative judge of the civil division may grant a continuance of any case placed in the Civil Trial Pool. Page 1 of 6 EXHIBIT AEXHIBIT A The following requirements are imposed on all parties by the Court: L i. ls NP NO LATER THAN NINETY (90) DAYS PRIOR TO TRIAL - EXPERT WITNESSES DISCLOSURE (Filed with the Clerk and served on all counsel) The parties shall furnish opposing counsel with the names and addresses, along with complete and updated curriculum vitae of all expert witnesses to be called at trial; and all information regarding expert testimony that is required by Fla. R. Civ. P. 1.280 (b)(4)(A); and shall furnish opposing counsel with two (2) alternative dates of availability of all expert witnesses for the purpose of taking their deposition. Both sides shall cooperate in the scheduling of such expert depositions. NO LATER THAN SIXTY (60) DAYS PRIOR TO TRIAL - MEDICAL EVALUATIONS: All medical evaluations and other examinations pursuant to Fla. R. Civ. P. 1.360 shall have been completed. NO LATER THAN _FORTY- FIVE (45) DAYS PRIOR TO TRIAL: _ All final discovery shall have been initiated. TEN (10) DAYS PRIOR TO TRIAL: All pretrial discovery, including discovery depositions or testimony preserved by video of witnesses or experts to be used at trial, shall have been completed. Any motions in limine, shall be filed and served upon opposing counsel. AT _THE TIME OF THE ABOVE NOTICED PRETRIAL CONFERENCE / CALENDAR CALL, the Joint Pretrial Stipulation must be completed and timely filed with the Clerk with a copy provided to the undersigned judge. At the time of the pretrial conference/calendar call the parties shall be prepared to discuss all items set fort in Fla R. Civ. P. 1.200(b). THE JOINT PRETRIAL STIPULATION MUST CONTAIN IN SEPARATELY NUMBERED PARAGRAPHS: [A joint pretrial stipulation contemplates a single document. It requires that all agreed matters be fully identified, and any disputed matters be specifically delineated with respect to each party]: Statement of the Facts: A concise, impartial statement of the facts of the case. Stipulated Facts: A list of those facts that can be stipulated and require no proof at the trial. Statements of Disputed Law & Fact: Those issues of law and fact that are to be tried. Exhibit Lists: Each party shall separately list all exhibits they intend to introduce into evidence. Each item shall be listed by number and description on a separate Page 2 of 6 EXHIBIT AEXHIBIT A schedule attached to the stipulation. Each exhibit shall be specifically described. Generic descriptions of exhibits are subject to being stricken. Counsel shall initial each other's exhibit list and exhibits. All exhibits to be offered in evidence at trial shall have been made available to opposing counsel for examination and initialing. Only those exhibits listed and initialed may be offered in evidence. If any party objects to the introduction of any such exhibit, such objection must be stated in the stipulation, setting forth the grounds with specificity. Demonstrative exhibits (e.g. charts, enlargements of exhibits) to be used at a jury trial must be displayed to all counsel before being shown to the jury. 5. Witness Lists: Parties shall attach and furnish counsel with a written list in alphabetical order containing the names and addresses of all witnesses ('rebuttal", "impeachment" or otherwise) intended to be called at trial. Only those witnesses listed shall be permitted to testify. All witness lists shall include a brief description of the substance and scope of the testimony to be elicited from such witness. All expert witnesses and their specialties shall be designated. If any party objects to any witness, such objection must be stated in the stipulation, setting forth the grounds with specificity. At trial, all parties shall be strictly limited to witnesses properly and timely disclosed. 6. Jury Instructions: If the trial is a jury trial counsel shall identify all agreed upon standard instructions and all special instructions. Any disputed jury instructions shall be attached and identified as to the party that proposed the instruction. Copies of all agreed upon instructions or disputed instructions shall be attached to the stipulation, along with copies of supporting statutory citations and/or case law. 7. Verdict Forms: If the trial is a jury trial the jury verdict form shall be attached and designated as agreed to or disputed. Agreed and/or disputed verdict forms shall be attached. 8. Peremptory Challenges: If the trial is a jury trial, state the number of peremptory challenges for each party. 9. Pending Motions: Set forth a list of all pending motions with copies attached to the pretrial stipulation. To the extent the court has time prior to commencement of the trial; all pending motions will be heard or set for hearing at the above- noticed pre-trial conference. All parties shall be fully prepared to present legal argument for all pending motions at the pretrial conference. 10. Trial Estimate: Each party shall provide an estimate of the number of days of trial for its side. 11. Daubert issues. All DAUBERT related issues involving any requests for hearings on DAUBERT related evidence shall be noticed and heard - or agreed to by the parties - no later than (30) days prior to the trial period. FAILURE TO DO SO SHALL CONSTITUTE A WAIVER OF ANY DAUBERT RELATED EVIDENCE ISSUE. It is within the discretion of the court to remove any case for trial with pending DAUBERT issues. Page 3 of 6 EXHIBIT AVu. VIII. EXHIBIT A NO LATER THAN TEN (10) DAYS prior to the trial period set forth above the following shall be completed or heard by the Court: 1. Depositions to preserve testimony of any witness, including experts, shall have been completed; 2. All pretrial motions, depositions or proceedings related thereto and MOTIONS IN LIMINE: All motions to exclude witnesses or evidence of other motions directed to the conduct of the trial for which grounds then exist must be filed and heard prior to commencement of the trial. MOTIONS FOR SUMMARY JUDGMENT will NOT be heard at the calendar Ix. call, pretrial conference or at the time of trial. SETTLEMENT: Counsel shall immediately notify this Court in the event of settlement and submit a stipulation for and order of dismissal. Counsel shall also notify the Court of any pending hearings that will be canceled as a result of the settlement. THE PARTIES ARE CAUTIONED REGARDING THE FOLLOWING POLICIES OF THE COURT: The parties shall do all things reasonable and necessary to assure the availability of their witnesses for the entire trial period or to otherwise preserve their testimony for trial as provided by the Florida Rules of Civil Procedure. See Rules 1.300 and 1.460 Fla.R.Civ.P. and Rule 2.545 of the Florida Rules of Judicial Administration. CONTINUANCES will only be considered on written motion prior to calendar call. NO CONTINUANCES will be granted for reasons that should have been readily apparent to counsel when the trial order was received or expert witnesses are unavailable since testimony may be preserved by deposition. Continuances requested for reasons relating to failure to follow this Order will not be granted. THE REQUIREMENTS OF THIS PRETRIAL ORDER CANNOT BE WAIVED BY STIPULATION. The parties and counsel should be familiar with Fla.R.Civ.P 1.380 regarding "Failure to Make Discovery: Sanctions", and, Fla. Stat., §57.105, entitled "Attorney's Fee; sanctions for raising unsupported claims or defenses; service of motions; damages for delay of litigation." The court may impose sanctions for failure to comply with the requirements of this pretrial order including dismissal of the action. FAILURE TO ATTEND, FAILURE TO FOLLOW TIME REQUIREMENTS OR FILE DOCUMENTS REQUIRED BY THIS COURT MAY RESULT IN THE Page 4 of 6 EXHIBIT AEXHIBIT A DISMISSAL OF THE ACTION OR THE IMPOSITION OF SANCTIONS INCLUDING STRIKING OF THE PLEADINGS. 6. MEDIATION IS MANDATORY: Mediation shall commence no later than (60) days prior to the calendar call. The parties shall comply with Fla. R. Civ. P. 1.700, 1.710, 1.720, and 1.730 as to the conduct of mediation. Plaintiff's counsel is appointed lead counsel to facilitate and schedule the settlement conference with the mediator and all parties. The court appoints: WHOMEVER THE PARTIES AGREE UPON as Mediator, unless, within (30) days of this order the parties choose a different mediator. Failure to attend mediation may result in sanctions. 7. At trial, there will only be one official record transcribed by one court reporter. Plaintiff is responsible for arranging for a court reporter unless otherwise agreed. If a conflict exists, the parties must resolve such conflict among themselves prior to trial. Pursuant to Florida Rule of Judicial Administration 2.516 (h) (1) the court directs the attorney or self-represented party scheduling this case for trial to serve a copy of this order on any self-represented party and file with the clerk of court a certificate of service certifying the self-represented party was served with this order. The certificate of service shall be in compliance with Rule 2.516 (f). ORDERED and ADJUDGED at Fort Lauderdale, Florida on 10-02-2017 : CACEAON6177 CACE14006177 10-02-2017 6:59 PM. CIRCUIT JUDGE Copies furnished to counsel of record If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact Diana Sobel, Room 20140, 201 S.E. Sixth Street, Fort Lauderdale, Florida 33301, 954-831-7721 at least 7 days before your scheduled court appearance, or immediately upon receiving this notification if the time before the scheduled appearance is less than 7 days; if you are hearing or voice impaired, call 711. Page 5 of 6 EXHIBIT AEXHIBIT A Copies Furnished to: dshenkmaniaw@hotmail.com shenkmanlegalasst@att net katgainey@aol.com marin@kolawyers.com spallino@kolawyers.com ferguson@kolawyers.com haimovitch@kolawyers.com Page 6 of 6 EXHIBIT AFiling # 66151571 E-Filed 01/05/2018 11:31:Q&AMir p IN THE CIRCUIT COURT FOR THE 17"! JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE 14-006177 KEITH UPHAM, Plaintiff, vs. BROWARD SHERIFF'S OFFICE, a political subdivision of the State of Florida, Defendant. / DEFENDANT'S STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AND INCORPORATED MEMORANDUM OF LAW Defendant, Broward County Sheriffs Office ("BSO"), by and through its undersigned counsel, and pursuant to Fla. R. Civ. P. 1.510, hereby files its Statement of Undisputed Facts in Support of its Motion for Summary Judgment and Incorporated Memorandum of Law, and states: L INTRODUCTION There is no dispute of material fact that BSO is entitled to summary judgment because there is no record evidence that BSO had actual or constructive knowledge of the wet spot on the floor of the A-7 cell block in the Joseph V. Conte Correctional facility. Plaintiff cannot demonstrate that BSO had any knowledge the puddle of water existed, how long the puddle of water existed before Plaintiff slipped and fell, and any active negligence by BSO that would have caused Plaintiff to slip and fall. Summary judgment should be entered in BSO's favor and this case should be dismissed. IL. UNDISPUTED MATERIAL FACTS 1. On April 6, 2011, Keith Upham ("Plaintiff") was an inmate at the Joseph V. Conte Correctional Facility ("Conte Facility") in Pompano Beach, Florida. A true and correct copy of Plaintiff's Complaint is attached hereto as Exhibit A at §6. .900025100390088.1 1 EXHIBIT BEXHIBIT B 2. BSO operates, controls, maintains, and manages county correctional facilities in Broward County as well as the Conte Facility located at 1351 N.W. 27" Avenue, Pompano Beach, Broward County, Florida. /d. at § 3. 3. While at the Conte Facility, Plaintiff was housed in the A-7 cell block, consisting of 74 cells, housing approximately 200 inmates. A true and correct copy of Plaintiff's deposition transcript, dated December 5, 2017 is attached hereto as Exhibit B at 23:7-24:12. 4. On April 6, 2011, Plaintiff left the Conte Facility at 5:00 am to attend his criminal court proceeding. Id. at 25:17-26:8. 5. After the completion of his criminal proceeding Plaintiff returned to the Conte Facility between 11:00 - 11:30 am, and was placed into a holding cell in handcuffs, but no leg restraints while he is waiting to be called to be transported back to his cell in the A-7 cell block. Id. at 26:12-28:22. 6. Plaintiff was called from the holding cell and was escorted back to the A-7 dorm building by a BSO detention deputy. /d. at 27:18-25. 7. Upon arriving to the A-7 cell block, Plaintiff was escorted out of the elevator by the BSO detention deputy to the A-7 cell block. /d. at 33:21-35:22. 8. The BSO detention deputy escorted Plaintiff to the entrance to the A-7 cell block, and walked Plaintiff though the two security doors which are about twelve feet apart. Jd. at 37:6- 40:24. 9. Plaintiff was escorted to a desk in A-7 where another BSO detention deputy was stationed. The desk was to Plaintiff's right approximately 20 feet away from the second security door. The BSO detention deputy that escorted Plaintiff removed Plaintiff's handcuffs. /d. at 41:3-14. 10. | The BSO detention deputy stationed at the desk told Plaintiff, "[Other inmates are] going to come out for lunch. Go have a seat at a table." Jd. at 41:15-18. 11. There are about 28-30 tables with each table seating 4 people to a table approximately 10 feet from the guard desk. Jd. at 43:7-44:18 12. Plaintiff voluntarily chose to walk to a table approximately 10 feet from the guard's desk. Id. at 44:15-20; 46:3-5 (Plaintiff was not directed to sit at a specific table). 13. As Plaintiff was approaching the table where he was going to sit, he slipped on a puddle of water (the "Wet Spot") that was five to six feet in diameter next to a kiosk (where .900025100390088.1 2 EXHIBIT BEXHIBIT B inmates can order commissary and look up legal matters) that hangs from the wall. Jd. at 44:20- 45:2; 47:9-48:5. 14, Plaintiff went unconscious for a few moments, and injured his head, neck, and back. Exhibit A at ¥ 9; 15. At his deposition, Plaintiff testified that he did not see the Wet Spot prior to slipping: Questioning by BSO Counsel: Q: Prior to slipping, did you see the puddle of water? A: No. The floors are so waxed and shiny, it just --. Q: Prior to slipping, did you see anything dripping that would lead to a pool of water? A: No. Q: Prior to slipping, did you see anyone wax the floors that day? A: No. Exhibit B at 48:3-12. 16. Plaintiff testified that he did not know where the water came from or how long the Wet Spot existed before he fell: Questioning by BSO Counsel: Q: Do you have knowledge where the water came from? A: No. I was in court. Q: Do you have any knowledge of how long the water was there before you fell? A: No. Td. at 50:10-15. 17. Plaintiff testified that prior to slipping he did not see anything dripping that would create a Wet Spot: uestioning by BSO Counsel: Q: Prior to slipping, did you see anything dripping that would lead to a pool of water? A: No. Id. at 48:7-9. 18. Plaintiff testified the puddle of water he slipped on was not regularly there: Questioning by BSO Counsel: Q: Do you have any knowledge that the wet spot, the puddle of water that was there, is regularly there? A: It's never there. Id, at 51:13-16. .900025100390088.1 3 EXHIBIT BEXHIBIT B 19, Plaintiff testified that he does not know if any BSO employee had knowledge of the Wet Spot: Questioning by BSO Counsel: Q: Prior to you falling, do you know if any BSO employee that had knowledge of that wet spot? A: No, I don't. Q: Okay. A: I wasn't there. Id, at 51:20-24; 60:8-12. 20. Plaintiff was assessed by BSO medical staff, and was cleared to remain in the unit, with no visible signs of injuries. A true and correct copy of Broward Sherriff's Office Department of Detention Urgent Medical Care Record is attached hereto as Exhibit C at pp. 1-2. TH. SUMMARY JUDGMENT STANDARD Pursuant to Florida Rule of Civil Procedure 1.510(e), "[s}ummary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law." Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). "The burden to conclusively prove the nonexistence of a material fact is on the moving party." Continental Concrete, Inc. v. Lakes at La Paz Ill Limited Partnership, 758 So. 2d 1214, 1217 (Fla. 4th DCA 2000) (citing Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966)). "Only after this burden is met does the burden shift to the nonmoving party." Continental Concrete, Inc., 758 So. 2d at 1217 (citing Holl, 191 So. 2d at 44). "However, the 'issue' must be one of material fact. Issues of nonmaterial facts are irrelevant to the summary judgment determination." Continental Concrete, Inc., 758 So. 2d at 1217 (emphasis in original). "A material fact, for summary judgment purposes, is a fact that is essential to the resolution of the legal questions raised in the case." Id. IV. BSOIS ENTITLED TO SUMMARY JUDGMENT! In this case, even drawing every reasonable inference in Plaintiff's favor, BSO is entitled to summary judgment. There is no record evidence of how long the Wet Spot existed before the fall, no evidence of how the Wet Spot was created, no evidence that the wet conditions occurred with regularity in the area where the plaintiff fell, and no evidence of active negligence by BSO. See Walker v. Winn-Dixie Stores, Inc., 160 So. 3d 909, 913 (Fla. 1st DCA 2011) (affirming ' All undisputed relevant facts will be referenced as "SOF at __." 1025100990948 4 EXHIBIT BEXHIBIT B summary judgment in favor of defendant because there is was no record evidence of constructive knowledge). See Delgado vy. Laundromax, Inc., 65 So. 3d 1087 (Fla. 3d DCA 2011) (plaintiff unable to determine where the water came from, how long it had been on the floor, or if anyone at the facility knew there was water on the floor before she walked in). Plaintiff has provided no ultimate facts demonstrating how BSO was on actual or constructive notice. See McCarthy v. Broward College, 164 So. 3d 78, 81 (Fla. 4th DCA 2015) (granting summary judgment in favor of Broward College because there were insufficient facts absent the impermissible stacking of inferences to find liability against Broward College). Plaintiff is unable to identify how the Wet Spot occurred, how long the Wet Spot had been there, or establish if anyone at BSO had actual or constructive knowledge. McCarthy, 164 So. 3d at 81. Further there is no evidence that the Wet Spot occurred with regularity and was foreseeable. Jd. "[T]he Florida Legislature has mandated that the plaintiff prove the defendant had prior notice - actual or constructive — of the dangerous condition." Berbridge v. Sam's East, Inc., Case No. 16-CV-62681-BLOOM, 2017 US. Dist. 132888, at *7 (S.D. Fla. Aug. 21, 2017) (interpreting Fla. Stat. § 768.0755 and granting summary judgment in favor of Defendant because Plaintiff failed to demonstrate actual or constructive notice). Fla. Stat. § 768.0755? states: (1) Ifa 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. Under Florida Law, the Plaintiff has the burden of proving that the business establishment (BSO Conte Facility) had actual of constructive knowledge of the dangerous condition, and Plaintiff has failed to meet this burden. As such, BSO is entitled to judgement in its favor as a matter of law. > The Legislature repealed Fla. Stat. § 768.0710 and replaced it with Fla. Stat. 768.0755 (2010) and provided the effective date of July 1, 2010. Pembroke Lakes Mall Ltd. v. McGruder, 137 So.3d 418, 424 (Fla. 4th DCA 2014). .900025100390088.1 5 EXHIBIT BEXHIBIT B A. BSO Did Not Have Any Actual Notice of the Wet Spot. Plaintiff fails to prove that BSO had any actual notice of the Wet Spot. Actual notice is when the owner of the premises has actual knowledge of the dangerous condition "when its employees 'know[] of or create[d] the dangerous condition."" Berbridge, 2017 U.S. Dist. 132888, at *8 (citing Barbour v. Brinker Florida, Inc., 801 So.2d 953, 957 (Fla. 5th DCA 2001)). Plaintiff cannot and has not presented any evidence where it can be inferred that BSO created or that it knew of the condition prior to Plaintiff's incident. Plaintiff testified that he did not have any knowledge that any BSO employee knew of the Wet Spot before he slipped and fell. Questioning by BSO Counsel: Q: Prior to you falling, do you know if any BSO employee that had knowledge of that wet spot? A: No, I don't. SOF at 19. There are no ultimate facts that BSO knew of the Wet Spot and chose not to do anything about. At best, Plaintiffs only argument is that BSO may have previously mopped the area that caused the Wet Spot. Exhibit B at 50:13-51:12. However, this argument fails because it is speculation and Plaintiff testified that he has no first-hand knowledge that the area where he fell was mopped earlier that day. See McCarthy 164 So. 3d at 82 (granting summary judgment in favor of Broward College because there was insufficient facts absent the impermissible stacking of inferences to find liability against Broward College). Questioning by BSO Counsel: Q: I asked you previously do you have any knowledge of how long the wet spot was there and you said no. A: No. Q: You agree with that? A: They could have — they could have mopped it before. Q: But my question to you is you don't know that? A: No, I don't know. Exhibit B at 51:3-12. Plaintiff is unable to demonstrate that BSO had actual notice of the Wet Spot. B. BSO Did Not Have Any Constructive Notice of the Wet Spot. Plaintiff cannot demonstrate BSO had constructive notice of the Wet Spot. Constructive notice can be proved in one of two ways: (1) "[t]he dangerous condition existed for such a length .00025/00390088.1 6 EXHIBIT BEXHIBIT B of time that, in the exercise of ordinary care, the business establishment should have known of the condition" or (2) "[t]he condition occurred with regularity and was therefore foreseeable." Fla. Stat. § 768.0755(1). "A 'plaintiff's right to recover in a slip and fall case requires more than a showing simply that the surface upon which the injured fell was slick, smooth, or wet." Berbridge, 2017 U.S. Dist. 132888, at *10 (quoting Williams v. Holland, 205 So.2d 682, 683 (Fla. 1st DCA 1968)). 1. Plaintiff Cannot Demonstrate Any Ultimate Facts That BSO Should Have Known About the Wet Spot There is no dispute of material fact that Plaintiff cannot and has failed to demonstrate any ultimate facts that the Wet Spot existed for such a length of time or that BSO should have known about the condition. '""When considering whether there is an issue of fact or submission to a jury in transitory foreign substance cases, courts look to the length of time the condition existed before the accident occurred." Jd. (quoting Dominguez v. Publix Super Markets, Inc. 187 So. 3d 892, 894 (Fla. 3d DCA 2016)). ""[T]he mere presence of the substance on the floor is not enough; the record must have additional facts to create a permissible inference about the time the foreign substance had been on the floor... without this evidence, a finding of negligence would be sheer speculation."' Jd. (quoting Ayers v. Wal-Mart Stores East, L.P., Case No. 15-24663- CIV-GAYLES, 2017 U.S. Dist. LEXIS 26986, at *2 (S.D. Fla. Feb. 27, 2017)). '"Plaintiff's testimony must be accompanied by a 'plus', namely some additional fact or facts from which a jury can reasonably conclude that substance was on the floor long enough[.]"' Encarnacion v. Lifemark Hospitals of Fla., 211 So. 3d 275, 278 (Fla. 3d DCA 2017). To infer facts that a substance was on the floor long enough, plaintiff must provide evidence of a "plus." Berbridge, 2017 U.S. Dist. 132888, at *10. '"[AJn inference is not reasonable if it is only a guess or a possibility for such an inference is not based on the evidence but is pure conjecture and speculation."' Jd. at *18 (quoting Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1322 (11th Cir. 1982)) Here, Plaintiff cannot demonstrate any ultimate facts that demonstrate when the Wet Spot began or appeared on the floor. Inferential leaps based on conjecture and speculation is not reasonable. Berbridge, 2017 U.S. Dist. 132888, at *18. Plaintiff testified that he did not know: (1) where the Wet Spot came from; (2) how long the Wet Spot was there; and, (3) of anything dripping that would lead to a pool of water forming. .900025100390088.1 7 EXHIBIT BEXHIBIT B QUESTIONING BY BSO COUNSEL: Q: Do you have knowledge where the water came from? A: No. I was in court. Q: Do you have any knowledge of how long the water was there before you fell? A: No. Q: Prior to slipping, did you see anything dripping that would lead to a pool of water? A: No. SOF at §§16-17. Plaintiff cannot and has failed to demonstrate any facts that the Wet Spot existed for such a length of time or that BSO should have known about the condition. 2. Plaintiff Cannot Demonstrate Any Ultimate Facts that the Wet Spot Occurred with Regularity and Was Foreseeable. There is no dispute of material fact that Plaintiff cannot and has failed to demonstrate any facts that the Wet Spot occurred with regularity and was foreseeable. Unless '"a condition occur[s] with regularity and was therefore foreseeable,' the duty to act is activated by actual or constructive notice of the presence of a transitory foreign substance, not simply the possibility that it might become present." Walker, 160 So. 3d at 913 (quoting Fla. Stat. § 768.0755). There is no dispute of material fact that Plaintiff fails to present any ultimate facts that previous wet conditions occurred with regularity in the area that Plaintiff slipped and fell. Plaintiff testified the Wet Spot he slipped on was never regularly there. QUESTIONING BY BSO COUNSEL: Q: Do you have any knowledge that the wet spot, the puddle of water that was there, is regularly there? A: It's never there SOF at §18. Thus, Plaintiff has failed to demonstrate any facts the Wet Spot occurred with regularity and was foreseeable. V. CONCLUSION There is no dispute of material fact that Plaintiff has failed to prove that BSO had actual or constructive notice of the Wet Spot. For all the foregoing reasons, BSO is entitled to summary judgment and this case should be dismissed. .00025/00390088.1 8 EXHIBIT BEXHIBIT B CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via electronic mail to G. William Allen, JR., Esquire, Attorney for Plaintiff, Katgainey@aol.com, 303 SW 6" Street, Penthouse West, Fort Lauderdale, Florida 33315 on this 5th day of January, 2018. (090025/00990048_1 9 KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT Attorneys for Defendant. BSO One West Las Olas Blvd., Suite 500 Fort Lauderdale, Florida 33301 Telephone No. (954) 525-4100 Facsimile No. (954) 525-4300 By: = /s/ Seth D. Haimovitch DAVID L. FERGUSON Florida Bar Number: 0981737 SETH D. HAIMOVITCH Florida Bar Number: 0085939 Ferguson@kolawyers.com Haimovitch@kolawyers.com EXHIBIT BEXHIBIT B IN THE CIRCUIT COURT OF THE 17th JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO. CACE-14-006177 FLA. BAR NO. 352306 KEITH UPHAM, Plaintiff, vs. BROWARD SHERIFF'S OFFICE, A political subdivision of the STATE OF FLORIDA, Defendant. COMPLAINT AND DEMAND RY TRIAL Plaintiff sues Defendant and alleges: JURISDI L ALLEGA' 1. This is an action for damages in excess of $15,000.00 exclusive of interest and costs: 2. At all times material, the Plaintiff KEITH UPHAM is a resident of Broward County, Florida. 7 3. At all times material, the Defendant BROWARD SHERIFF'S OFFICE is a political subdivision of the State of Florida, and operates, controls, maintains, and Manages county correctional facilities in Broward County as well as the Joseph V. Conte EXHIBIT &EXHIBIT B Correctional Facility located at 1351 N.W. 27" Avenue, Pompano Beach, Broward County, Florida. 4. At all times material, Plaintiff has complied with the notice requirements of Florida Statute §768.28 by notifying all of the governmental entities which may have an interest in this claim. 5. Plaintiff has performed all conditions precedent to the bringing of this action, or in the alternative, said conditions have been waived by the Defendant. COUNT I Negligence Plaintiff realleges and reavers paragraphs 1-5 inclusive and alleges further: 6. On or about April 6, 2011, the Plaintiff KEITH UPHAM was an inmate at Joseph V. Conte Correctional Facility in Pompano Beach, Florida. 7. At that time and place, and for many months prior thereto, Defendant BROWARD SHERIFF'S OFFICE owned, operated, managed, maintained, and/or controlled the Joseph V. Conte Correctional Facility with all common areas used by inmates therein. 8. At all times material hereto, the Defendant owed a duty of care to the Plaintiff to maintain, manage operate and control the facility and its floors in a safe condition for the inmates including the Plaintiff. 9. At that time at place, the Plaintiff was walking thru a hallway in a building adjacent to a dining area when he slipped and fell upon the premises due to a wait EXHIBIT BEXHIBIT B floor that was in the process of being mopped and cleaned. 10. At that time and place, the Defendant was negligent and careless in one or more of the following particulars: a) Failure to provide a safe means of ingress and egress in and about the floors of the facility for inmates and in particular the Plaintiff, b) Failure to warn that an area of the floor was covered with water that caused or contributed to the dangerous condition resulting in Plaintiff's slip and fall, c) Failure to inspect the floor at the area where Plaintiff slipped and fell, and d) Failure to train or adequately train or supervise personnel responsible for mopping and cleaning the floors in and about the premises. 11. The Defendant's negligence posed and unreasonable and foreseeable risk of harm to the Plaintiff. 12. As a direct and proximate result of the negligence of the Defendant BROWARD SHERIFF'S OFFICE, the Plaintiff KEITH UPHAM was injured in and about his body and extremities, suffered bodily injury and resulting pain and suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life, expense of hospitalization, medical and nursing care and treatment, loss of earnings, loss of ability to earn money, and aggravation of a previously existing condition, suffered physical handicap, and future working ability was impaired. The losses are either permanent or continuing and Plaintiff will suffer the losses and impairment in the future. EXHIBIT BEXHIBIT B WHEREFORE, Plaintiff demands judgment for damages against Defendant for compensatory damages and costs, and demands trial by jury of all issues triable as of right by a jury. DAVID M. SHENKMAN, P.A. 2701 S. Bayshore Drive, Suite 602 Miami, Florida 33133 Phone No. (305) 859-7272 Email: dshenkmanlaw@hotmail.com Is/ DAVID M. SHENKMAN By: EXHIBIT BEXHIBIT B Page 1 IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO. CACE 14-006177 KEITH UPHAM, Plaintiff, vs. BROWARD SHERIFF'S OFFICE, a political subdivision of the State of Florida, Defendant. 1 West Las Olas Boulevard Suite 500 Fort Lauderdale, FL 33301 December 5, 2017 2:19 p.m. - 4:54 p.m. DEPOSITION OF KEITH UPHAM Prestige Reporting Service (954) 764-7297 EXHIBIT B 34684f9-13cd-4ad7-9970-8c458ec9ec0f10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXHIBIT B APPEARANCES: G. William Allen, Jr., Esq. Law Offices of G. William Allen, Jr. 303 S.W. 6th Street Penthouse West Fort Lauderdale, FL 33315 Office: 954-522-4433 E-mail: Katgainey@aol.com Counsel for the Plaintiff Seth David Haimovitch, Esq. Kopelowitz Ostrow Ferguson Weiselberg 1 West Las Olas Boulevard Suite 500 Fort Lauderdale, FL 33301 Office: 954-525-4100 E-mail: Haimovitch@kolawyers.com Counsel for the Defendant Page 2 Prestige Reporting Service (954) EXHIBIT B 764-7297 34684f9-13cd-4ad7-9970-8c458ec9ec0f11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXHIBIT B I-N-D-E-X WITNESS: KEITH UPHAM Direct Examination Page 4 By Mr. Haimovitch Cross-Examination Page 107 By Mr. Allen Redirect Examination Page 108 By Mr. Haimovitch E-X-H-I-B-I-T-S Page 3 Defendant's Exhibit 1 Page 7 (Complaint and Demand for Jury Trial) Defendant's Exhibit 2 Page 9 (BSO Jail Occurrence Report) Defendant's Exhibit 3 Page 9 (BSO Department of Detention Urgent Medical Care Record) Defendant's Exhibit 4 Page 11 (Defendant's Notice of Servicing First Set of Interrogatories to Plaintiff) Defendant's Exhibit 5 Page 12 (Plaintiff's Notice of Service of Answers to Interrogatories) Prestige Reporting Service (954) 764-7297 EXHIBIT B 34684f9-13cd-4ad7-9970-8c458ec9ec0f10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXHIBIT B Page 4 Deposition of KEITH UPHAM, a witness of lawful age, taken by the Defendant for the purpose of discovery and for use as evidence in the above-entitled cause, wherein Keith Upham is the Plaintiff, and Broward Sheriff's Office, a political subdivision of the State of Florida, is the Defendant, pending in the Circuit Court of the 17th Judicial Circuit in and for Broward County, pursuant to notice heretofore filed, before Colleen Foote, Court Reporter and Notary Public in and for the State of Florida at Large, at the Law Office of Kopelowitz, Ostrow, Ferguson, Weiselberg, Gilbert, 1 West Las Olas Boulevard, Suite 500, Fort Lauderdale, Broward County, Florida, 33301, on the December 5, 2017, commencing at 2:19 p.m. Thereupon: KEITH UPHAM a witness named in the notice heretofore filed being of lawful age and being first duly sworn in the above cause, testified on his oath as follows: DIRECT EXAMINATION BY MR. HAIMOVITCH: Q. Good afternoon, Mr. Upham. My name is Seth Haimovitch. I'm an attorney for the Broward Prestige Reporting Service (954) 764-7297 EXHIBIT B 34684f9-13cd-4ad7-9970-8c458ec9ec0f10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXHIBIT B Page 5 Sheriff's Office. I'm outside counsel. We're here for your deposition today in the lawsuit that you filed, Case Number 14-0006177, here in the 17th Judicial Circuit of Broward County. Have you ever had your deposition taken before? A. Yes, many years ago. Q. Okay. So I'm just going to kind of go over some ground rules so that we're on the same page. If your lawyer wants to interject and say anything else that might provide a more efficient deposition, by all means. So I'll be asking the questions. You'll be providing the answers. Normally in regular conversation you already know the answer to my question as I start asking it, and people kind of just naturally will cut each other off. I ask that you let me finish the question so that you can respond so that the court reporter can accurately take down everything that we're saying. Do you understand that? A. I was brought up that way. Q. Great. So we won't have that issue. If for some reason I break that rule and interrupt you, just let me know that you're not Prestige Reporting Service (954) 764-7297 EXHIBIT B 34684f9-13cd-4ad7-9970-8c458ec9ec0f10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXHIBIT B Page 6 finished answering the question. A. I'll sing you a song. Q. And let me know that, that if you have more to answer, or provide more information to the question, please do so. If you don't understand a question that I'm asking, ask me to rephrase it. I think all the questions I'm going to be asking you are pretty straightforward. A lot of the questions that I'm going to be asking you today come from documents that you've probably seen before or have had a hand in compiling. I can kind of give you a breakdown of what's going to happen. I'm probably going to ask a lot of information about your background, what led up to this point. We'll have a conversation and you'll describe to me the incident that gives rise to this Complaint, the slip and fall. And then I'm going to talk about your damages. Okay? A. Uh-huh, yes. Q. The last thing is it's typical in normal conversation to give a head nod or an uh-huh or an uh-uh. That's hard for the court reporter to take. So instead of doing so, if you could provide answers such as correct or yes that will be more beneficial for all of us here. Understood? Prestige Reporting Service (954) 764-7297 EXHIBIT B 34684f9-13cd-4ad7-9970-8c458ec9ec0f10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXHIBIT B Page 7 A. Yes. Q. Great. Before we start, I would like to kind of name all the exhibits, if that's okay, it will make life a little bit easier for all of us as we go through. The first thing I want to show you is your Complaint that you drafted or that your lawyer at the time drafted. So your Complaint here will be marked as Exhibit 1. (Thereupon, Defendant's Exhibit Number 1 was marked for identification.) BY MR. HAIMOVITCH: Q. Can you just take a look through that, make sure that you recognize it, that it is the Complaint that was filed to initiate this lawsuit? A. It wasn't in the hallway. It was in the dining room itself. MR. ALLEN: Let me look at that. I don't think it really says that. Let me see. BY MR. HAIMOVITCH: Q. I'm not holding you right now to those exact words. A. I'm just pointing it out. Q. That's fine. We can go through that when Prestige Reporting Service (954) 764-7297 EXHIBIT B 34684f9-13cd-4ad7-9970-8c458ec9ec0f10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXHIBIT B Page 8 we walk through it. But the Complaint here, you recognize it? It's what initiated your action? MR. ALLEN: Okay. Yeah, it does say that. All right. Off the record a second. (Discussion held off the record.) BY MR. HAIMOVITCH: Q. Do you have any reason to doubt that this isn't the Complaint that initiated your claim? A. No, I have no doubt. Q. And were you involved in helping to -- I know you didn't maybe type the words to this complaint, but were you involved in helping to generate this document? A. Yes. Q. This is the same document but it's just marked as Exhibit 1 so you'll have it over here when we reference it. MR. HAIMOVITCH: Do you need a copy? MR. ALLEN: No. BY MR. HAIMOVITCH: Q. The second document we're going to mark is the incident report regarding the fall that occurred. We're going to go through this. (Thereupon, Defendant's Exhibit 2 was Prestige Reporting Service (954) 764-7297 EXHIBIT B 34684f9-13cd-4ad7-9970-8c458ec9ec0f10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXHIBIT B Page 9 marked for identification.) BY MR. HAIMOVITCH: Q. I just want to know, have you seen this document before? A. I've never seen it but it's incorrect. Q. We'll go through what you believe is correct or incorrect later on. I just wanted to know if you had seen it or not. MR. HAIMOVITCH: Do you need a copy of that one? You can have that. That's fine because it's marked there. MR. ALLEN: Yeah, I want to see it. (Thereupon, Defendant's Exhibit 3 was marked for identification.) BY MR. HAIMOVITCH: Q. The third thing is this is a copy of the medical care after incident by BSO. Can you tell me if you've ever seen this document or the documents in that before? A. Yeah, I've never seen it. Q. Okay. That's fine. MR. ALLEN: I can have this? MR. HAIMOVITCH: Yeah, yeah. That's your copy, too, over there so when we go through it you can see what's going on as well. Prestige Reporting Service (954) 764-7297 EXHIBIT B 34684f9-13cd-4ad7-9970-8c458ec9ec0f10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXHIBIT B Page 10 MR. ALLEN: I have to give it to the court reporter. MR. HAIMOVITCH: No, we have it marked. We have an extra copy for you already so we're good. MR. ALLEN: Okay. Wonderful. Now, what's this? THE WITNESS: Oh, yeah, I think I've seen this. BY MR. HAIMOVITCH: Q. Okay. I'm going to combine two things as one because they're related. If you recall, back in 2014 we had sent you some questions to answer regarding the incident. I'm going to provide you the questions and then your responses. Typically, and this is probably your former lawyer's part, the reason why there's two documents is when you answer the questions normally, you're supposed to write the question first, but he didn't do that. He just wrote the answers. So that if there's a couple questions that I have to ask you about some of your responses, we can go back and forth to see what the question was and what your response to it was. Prestige Reporting Service (954) 764-7297 EXHIBIT B 34684f9-13cd-4ad7-9970-8c458ec9ec0f10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXHIBIT B Page 11 Does that make sense? A. Yes. Q. Okay. This is going to be Exhibit 4, Defendant's Notice of Serving First Set of Interrogatories, and then also included in Exhibit 4 will be Plaintiff's Answers to Defendant's First Set of Interrogatories. I'm more concerned if you can just take a look at this document, the responses that we received from your lawyer. Okay. If you can kind of flip through to see generally if you recall those responses, you providing those answers to your lawyer so that he can respond on your behalf by sending us that information. (Thereupon, Defendant's Exhibit 4 was marked for identification.) MR. HAIMOVITCH: Off the record. (Thereupon, a brief recess was had.) BY MR. HAIMOVITCH: Q. Mr. Upham, don't worry about that one. Your lawyer actually sent me an updated one because that one looked differently than the one I had in front of me. So I'll circle back with you the updated answers that he provided on your behalf. Okay? Prestige Reporting Service (954) 764-7297 EXHIBIT B 34684f9-13cd-4ad7-9970-8c458ec9ec0f10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXHIBIT B Page 12 Yes. So we'll deal with that later. All right? Uh-huh, yeah. oO Fr O BP I realized there was a difference. (Thereupon, Defendant's Exhibit 5 was marked for identification.) BY MR. HAIMOVITCH: Q. And then so Exhibit 5 -- we'll put this off to the side. It will be here. Let's put Exhibit 4 off to the side. A. Do you want this back? Q. Yeah. Give me that one back, too, because I know which one you're talking about. MR. HAIMOVITCH: We'll go off the record for a second. (Discussion held off the record.) BY MR. HAIMOVITCH: Q. This here is a copy of your responses to the second set of interrogatories which your counsel was involved in here last year in 2016. If you can take a look at this. This will be marked as Exhibit 5. MR. HAIMOVITCH: We can go off the record. (Discussion held off the record.) BY MR. HAIMOVITCH: Prestige Reporting Service (954) 764-7297 EXHIBIT B 34684f9-13cd-4ad7-9970-8c458ec9ec0f10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXHIBIT B Page 13 Q. Those responses look familiar to you? A. Yes. Q. Okay. And on the last page of that document, this page is called the signature page or the jurat page, this is you attesting that you've read everything here and that everything is truthful and accurate. Do you agree with that? A. Yes. Q. Okay. So we got some of the housekeeping matters out of the way. I need to get a little bit of background information on you. How old are you currently? A. I was born in '58. Q.
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