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Opposing counsel filed this summary judgment brief arguing our client's slip-and-fall claim should be dismissed for lack of notice. Review it and identify the best counter-arguments.
Read opposing_counsel_msj_brief.pdf
I’ve reviewed the brief. Opposing counsel makes three arguments: (1) no actual notice of the spill, (2) no constructive notice because plaintiff cannot prove how long the liquid was on the floor, and (3) the open and obvious doctrine bars recovery. Let me research counter-arguments.
Found 20 premises liability cases
Analyzed Montgomery v. Florida Jitney Jungle Stores, Inc., 281 So. 2d 302 (Fla. 1973)
Analyzed Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256 (Fla. 2002)
I’ve identified four strong counter-arguments, each backed by caselaw:
| Counter-Argument | Key Authority |
|---|---|
| Circumstantial Evidence of Duration Deteriorated condition of the substance and time without cleaning are circumstantial evidence the spill existed long enough to charge the store with constructive notice—a jury question. | Montgomery v. Florida Jitney Jungle Stores, Inc., 281 So. 2d 302 (Fla. 1973) |
| Open and Obvious Is Not a Complete Bar An open and obvious hazard does not discharge the duty to maintain safe premises—the plaintiff’s knowledge raises comparative negligence, not summary judgment. | McWhorter v. Event Servs. Am., Inc., No. 2D2024-2401 (Fla. Dist. Ct. App. 2d Jan 14, 2026) |
| Mode of Operation Where the business’s mode of operation creates foreseeable spill hazards, actual or constructive notice of the specific substance is not required. | Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256 (Fla. 2002) |
| Rebuttable Presumption of Negligence A transitory foreign substance causing a fall creates a rebuttable presumption the owner failed to maintain reasonably safe premises, shifting the burden to the defense. | Owens v. Publix Supermarkets, Inc., 802 So. 2d 315 (Fla. 2001) |
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