S.L., vs TRACY ENTERPRISES, INC. d/b/a THE CABANA CLUB

Lipcon, Margulies, Alsina & Winkleman, P.A

August 24, 2015

S.L., vs TRACY ENTERPRISES, INC. d/b/a THE CABANA CLUB,

Complaint

This is a Complaint filed on behalf of an individual who sustained severe injuries when she slipped and fell near the pool area of the swim and beach club due to the wet, slippery and/or hazardous flooring surface.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

KEY WEST DIVISION

CASE NO. 15-CV-10152-MARTINEZ/GOODMAN

S.L.,

Plaintiff,

v.

TRACY ENTERPRISES, INC.

d/b/a THE CABANA CLUB,

Defendant.

                                                            /

 

AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff hereby sues Defendant and alleges as follows:

PRELIMINARY ALLEGATIONS

  1. The Plaintiff, L., is a resident of the State of Washington.
  2. Defendant, TRACY ENTERPRISES, INC. d/b/a THE CABANA CLUB, is a corporation incorporated in Florida with its principal place of business in Key Colony Beach, Florida.
  3. This Court has jurisdiction based on diversity of citizenship. The matter in controversy exceeds, exclusive of interest and costs, the sum specified by 28 U.S.C. § 1332.
  4. Defendant, at all times material hereto, personally or through an agent:

a. Owned real property within this state;

b. Operated, conducted, engaged in or carried on a business venture in this state and/or county or had an office or agency in this state and/or county;

c. Was engaged in substantial activity within this state;

d. Committed one or more of the acts stated in Florida Statutes §§ 48.081, 48.181 and/or 48.193;

e. The acts of Defendant set out in this Complaint occurred in whole or in part in this county and/or state.

  1. Defendant is subject to the jurisdiction of the Courts of this state.
  2. At all times material hereto, Defendant owned, operated and/or managed the swim and beach club known as “The Cabana Club,” located at 425 East Ocean Drive, Key Colony Beach, Florida 33051 (hereinafter the “subject property”).
  3. On or about October 28, 2012, the Plaintiff was a guest and invitee on the subject property.
  4. On or about October 28, 2012, the Plaintiff was severely injured when she slipped and fell near the pool area of the subject property due to the wet, slippery and/or hazardous flooring surface.
  5. In addition, the Plaintiff suffered a second incident on or about June 20, 2013 when she fell walking down a flight of stairs as a result of the injuries she suffered on or about October 28, 2012.

COUNT I

NEGLIGENCE PER SE

The Plaintiff realleges, adopts, and incorporates by reference the allegations in paragraphs one (1) through nine (9) as though alleged originally herein.

  1. The Department of Health and Rehabilitative Services (HRS) sets forth rules with regard to the operation and maintenance of public swimming pools.
  2. The HRS rules are specifically meant to ensure the safety of individuals using public swimming pools, such as the Plaintiff, and to prevent accidents by which the health or safety of individuals may be threatened or impaired. These rules include, but are not limited to:

a. Obtaining written approval from the County Health Department before performing any construction or modification to the public swimming pool (HRS Rule 64E-9.005);

b. Notifying the County Health Department of any proposed pool resurfacing or upgrades to decking at least 10 days prior to commencement (HRS Rule 64E-9.005(2)(h)); and,

c. Requiring decks to be constructed of concrete or other nonabsorbent material with a smooth slip-resistant finish (HRS Rule 64E-9.006(2)(a)(1)).

  1. At all times material hereto, Defendant had a duty to comply with the HRS rules to provide for the safety of its guests, including the Plaintiff.
  2. Defendant violated the HRS rules by having construction and/or modifications to the pool completed without prior approval from the County Health Department; and/or failing to notify the County Health Department of proposed pool resurfacing and/or deck upgrades; and/or failing to have a flooring surface made of a nonabsorbent material with a slip resistant finish on or around the subject area.
  3. As a direct and proximate result of Defendant’s violation of the HRS rules, the Plaintiff was injured about Plaintiff’s body and extremities, suffered physical pain, mental anguish, loss of enjoyment of life, disability, disfigurement, aggravation of any previously existing conditions there from, incurred medical expenses in the care and treatment of Plaintiff’s injuries, suffered physical handicap, lost earnings and Plaintiff’s earning capacity has been diminished. The injuries are permanent or continuing in nature, and Plaintiff will suffer the losses and impairments in the future. Further, the Plaintiff suffered a second accident due to the injuries she incurred in the first accident, which caused her damages in addition to those listed above.

Wherefore, the Plaintiff demands judgment for all damages recoverable under the law against Defendant and demands trial by jury.

COUNT II

NEGLIGENCE

The Plaintiff realleges, adopts, and incorporates by reference the allegations in paragraphs one (1) through nine (9) as though alleged originally herein.

  1. Defendant owed a duty to the Plaintiff to maintain the premises in a reasonably safe condition.
  2. On or about October 28, 2012, Defendant and/or its agents, servants, and/or employees breached its duty to the Plaintiff by negligently failing to keep the premises in a reasonably safe condition by acts and/or omissions that include, but are not limited to, the following:

a. Failure to utilize a reasonably safe flooring surface in light of the anticipated traffic and anticipated purpose of the area; and/or

b. Failure to have a non-slip or non-skid flooring surface on or around the subject area; and/or

c. Failure to apply a non-slip or non-skid substance for the flooring surface on or around the subject area; and/or

d. Failure to test and/or adequately evaluate the flooring surface in light of the anticipated traffic and anticipated purpose of the area; and/or

e. Failure to adequately test the coefficient of friction and slip resistance of the subject flooring surface before opening it up to guests and the Plaintiff; and/or

f. Failure to maintain the subject area in a clean and dry condition; and/or

g. Failure to adequately and regularly inspect the subject area for wet, slippery and/or hazardous conditions; and/or

h. Failure to adequately and regularly monitor the subject area to maintain the area free of wet and slippery conditions; and/or

i. Failure to adequately and regularly clean the subject area; and/or

j. Failure to close off and/or place warning signs on or around the wet and slippery areas of the subject area; and/or

k. Failure to warn the Plaintiff of the wet and slippery condition of the subject area; and/or

l. Failure to warn the Plaintiff of the risks and/or dangers associated with the wet and slippery condition of the subject area; and/or

m. Failure to warn guests and the Plaintiff of other slip and fall accidents previously occurring in the same area and/or type of flooring surface; and/or

n. Failure to instruct guests and the Plaintiff concerning footwear; and/or

o. Failure to analyze prior slip-and-fall accidents on Defendant’s property occurring in the same area and/or type of flooring surface so as to remedy such hazardous conditions; and/or

p. Failure to correct hazardous conditions following other slip and fall accidents in the same area and/or type of flooring surface; and/or

q. Failure to promulgate and/or enforce adequate policies and procedures to ensure that the subject area is adequately and regularly inspected, monitored, cleaned and maintained free of wet, slippery and hazardous conditions; and/or

r. Failure to promulgate and/or enforce adequate policies and procedures to ensure that warnings signs are placed on or around wet and/or slippery areas and/or that such wet and/or slippery areas are closed off; and/or

s. Failure to follow the codes, rules and/or regulations referenced in Count I.

  1. All or some of the above acts and/or omissions by Defendant and/or its agents, servants, and/or employees, caused and/or contributed to the Plaintiff slipping and falling on a wet, slippery and/or hazardous flooring surface near the pool of the subject property on or about October 27, 2012, and sustaining additional injuries with the second incident on or about June 20, 2013, which was caused by the injuries suffered in the first incident.
  2. Defendant knew of the foregoing conditions causing the Plaintiff’s accident and did not correct them, or the conditions existed for a sufficient length of time so that Defendant, in the exercise of reasonable care under the circumstances, should have learned of them and corrected them.
  3. As a result of the negligence of Defendant, the Plaintiff was injured about Plaintiff’s body and extremities, suffered physical pain, mental anguish, loss of enjoyment of life, disability, disfigurement, aggravation of any previously existing conditions there from, incurred medical expenses in the care and treatment of Plaintiff’s injuries, suffered physical handicap, lost earnings and Plaintiff’s earning capacity has been diminished. The injuries are permanent or continuing in nature, and Plaintiff will suffer the losses and impairments in the future. Further, the Plaintiff suffered a second accident due to the injuries she incurred in the first accident, which caused her damages in addition to those listed above.

Wherefore, the Plaintiff demands judgment for all damages recoverable under the law against Defendant and demands trial by jury.

Respectfully submitted,

LIPCON, MARGULIES,

ALSINA & WINKLEMAN, P.A.

Attorneys for Plaintiff

One Biscayne Tower, Suite 1776

2 South Biscayne Boulevard

Miami, Florida 33131

Telephone No.: (305) 373-3016

Facsimile No.: (305) 373-6204

 

By:   /s/ Jason R. Margulies                        

JASON R. MARGULIES

Florida Bar No. 57916

JACQUELINE GARCELL

Florida Bar No. 104358