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WAL-32189/DJS/DAL:kdm 

IN THE CIRCUIT COURT OF THE 

15TH JUDICIAL CIRCUIT IN AND FOR 

PALM BEACH COUNTY, FLORIDA 

CASE NO.: 50 2020 CA 006613 XXXX MB 

WILLIAM HERBERT BRITT, 

 Plaintiff, 

vs. 

WAL-MART STORES EAST, LP, 

 Defendant. 

 //

DEFENDANT’S ANSWER, 

AFFIRMATIVE DEFENSES AND DEMAND FOR JURY TRIAL 

TO PLAINTIFF’S COMPLAINT 

Defendant, WAL-MART STORES EAST, LP, by and through undersigned counsel, and 

pursuant to Florida Rule of Civil Procedure 1.110, hereby serves its Answer, Affirmative 

Defenses, and Demand for Jury Trial to Plaintiff's Complaint, as follows: 

ANSWER 

1. Defendant, WAL-MART STORES EAST, LP, denies each and every allegation 

contained in Plaintiff's Complaint. 

AFFIRMATIVE DEFENSES

1. The Complaint fails to state a cause of action as it does not specifically state 

ultimate facts as to the alleged dangerous condition or knowledge thereof on the part of this 

Defendant. 

2. The Plaintiff was guilty of negligence, which negligence was the sole and legal 

cause of the accident described in the Complaint, thereby barring all claims, or in the alternative, 

such negligence contributed to the accident and alleged damages, thus requiring an 

apportionment of Plaintiffs damages according to Plaintiffs’ degree of fault. Furthermore, to the 

extent Plaintiff was under the influence of any alcoholic beverage or drug and was more than 

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50% at fault for his own harm, Plaintiff’s claim would be barred by Section 768.36, Florida 

Statutes. 

3. There were sufficient intervening and superseding causes, including the 

negligence of other persons, parties or entities, to which this Defendant had no control. In 

accordance with section 768.81, Florida Statutes, the Defendant is entitled to an apportionment 

of fault and an apportionment of damages as the Doctrine of Joint and Several Liability has been 

abolished. 

The subject parties that may be liable are the co-defendants named in this or any prior or 

subsequent complaint, and this defendant incorporates by reference the allegations made against 

them in the complaint. Should the Plaintiff settle with or dismiss any or all of these named codefendants, then the defendant would adopt and incorporate these same allegations against them. 

The subject non-parties that may be liable are presently unknown. 

4. Plaintiff has received or is entitled to receive payments from collateral sources as 

identified by section 768.76, Florida Statutes. To the extent that subrogation rights do not exist 

or have been waived, the Defendant is entitled to a set-off for any collateral sources paid to or on 

behalf of the Plaintiff and/or as allowed by Section 768.041, Florida Statutes. 

5. The accident in question and damages alleged were proximately caused by the 

negligence of other persons and/or entities not subject to this Defendant's control. In accordance 

with section 768.81, Florida Statutes, the Defendant is entitled to an apportionment of fault and 

an apportionment of damages under the modification of the Doctrine of Joint and Several 

Liability. 

6. Plaintiff failed to mitigate or minimize his/her damages, if any. 

7. The Defendant is entitled to a set-off of all sums or money, settlement, judgment 

or otherwise received by the Plaintiff from any other party or non-party to this action. 

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8. The cause of any damages to Plaintiff was open and obvious and Plaintiff 

expressly assumed the ordinary risk incident to this. The accident and damages complained of 

by Plaintiff in this Complaint was due to the ordinary risk expressly assumed by the Plaintiff. 

9. The Plaintiff voluntarily used the subject premises knowing of the risks, if any, 

incidental to use and therefore assumed all ordinary risks. 

10. Plaintiff, William Herbert Britt failed to take ordinary and reasonable care in 

conducting himself on the premises. Plaintiff's failure to use all ordinary care and reasonable 

care was the direct and proximate cause of Plaintiff's damages. 

11. This Defendant had insufficient notice regarding the problems complained of by 

Plaintiff. Any and all conditions complained of by Plaintiff existed for such a short period of 

time that there was no notice to this Defendant so that corrective action could be taken. 

Defendant further avails itself all defenses burdens required of plaintiffs pursuant to Section 

768.0755, Florida Statutes (July 1, 2010). 

12. If discovery reveals that at the time and place of the accident complained of 

Plaintiff was either a trespasser or an uninvited licensee, then Defendant would not owe Plaintiff 

the duty or duties alleged in the Complaint. Furthermore, Defendant is entitled to all defenses 

and immunities provided for in Section 768.075, Florida Statutes, relating to trespassers under 

the influence, or discovered, or committing acts. 

13. Defendant’s mode of operation/maintenance was reasonable and adequate at its 

premises. 

14. At the time and place complained of, person or persons not operating under the 

control and consent of this Defendant so carelessly and negligently conducted themselves so as 

to cause the alleged accident, injuries and damages, and such negligence was the sole and 

proximate cause of the accident, thus barring all claims for damages against the Defendant. 

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15. The Plaintiff's damages were caused by third parties not party to this litigation and 

this Defendant is entitled to have its liability reduced on a pro rata basis for the negligence of any

and all persons not parties to this litigation. 

16. Any disability, disfigurement or injury claims alleged by Plaintiff, are a result of a 

pre-existing condition or were caused by a subsequent injury or injuries and were not caused or 

aggravated by any alleged acts of negligence of third parties. 

17. Plaintiff has not satisfied all conditions precedent to filing this suit against this 

Defendant and/or the subject action is barred by the Statute of Limitations. 

18. If discovery reveals Plaintiff to be a borrowed servant and/or statutory employee, 

then this action and said claims are barred by the Doctrine of Worker's Compensation Immunity, 

Section 440.11, Florida Statutes. 

19. Defendant avails itself of the defenses and burdens of proof required by Plaintiff 

pursuant to Section 768.0755, Florida Statutes. 

 20. Defendant avails itself of all statutory defenses and burdens of proof required by 

Florida law, FAC or Federal law, including but not limited to Chapters 768 and 627, Florida 

Statutes. 

21. Plaintiff has failed to mitigate damages because the medical bills are not reasonable 

and/or necessary; the billing is excessive; the treatment and/or billing was not casually related to 

the accident; the medical providers have engaged in conduct (excessive billing or treatment) 

which was not reasonably foreseeable; Plaintiff had health insurance and treated under a Letter 

of Protection which is void against public policy and Defendant is entitled to a write-down or 

setoff pursuant to Section 641.3154, Florida Statutes and Marion v. Orlando, 2009 W.L. 

7582985 (Fla. Cir. Ct. 2009); plaintiff is a Medicare beneficiary, then defendant is entitled to a 

write-down or setoff under the Medicare fee schedule. 

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22. Defendant asserts that the Plaintiff’s past and future damages are reduced or offset 

by the amount of ay governmental or charitable benefits available and further, that the defendant 

is entitled to an offset by any and all payments which have been made or will be made to the 

Plaintiff as a result of the injuries alleged in the Complaint. 

23. Defendant asserts that it is entitled to a set off of any contractual discount of 

medical bills or expenses, negotiated write off of medical bills or expenses or negotiated 

agreement to pay medical bills or other expenses in the future pursuant to the law of collateral 

source setoffs and Goble v. Frohman, 901 So.2d 830 (Fla. 2005). Alternatively, Plaintiff is not 

entitled to claim bills, costs or expenses incurred but waived or not actually incurred by the 

Plaintiff. 

24. This defendant did not have possession or otherwise exclusive possession was had 

by others not subject to this defendant's control. Therefore, the exclusivity of possession defense 

relieves this defendant of any liability or duty. 

25. The collateral source rule is no longer applicable, because the Patient Protection 

and Affordable Care Act mandates that all persons obtain health insurance. Therefore, evidence 

relating to collateral source benefits received in the past and available in the future to Plaintiff's

statutory survivors is admissible and such collateral source benefits shall offset and reduce any 

past or future economic damages awarded. 

26. To the extent that Plaintiff's statutory survivors fail to comply with the mandate of 

the Patient Protection and Affordable Care Act to obtain health insurance, Plaintiff's survivors 

have failed to mitigate their damages and Plaintiff's recovery must be reduced by the amount 

attributable to such failure. 

DEMAND FOR JURY TRIAL

Defendant demands a jury trial on all issues so triable. 

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WHEREFORE, Plaintiff should take nothing by this action and defendant should go 

hence without day. 

CERTIFICATE OF SERVICE 

 I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished 

via Electronic Mail, to all counsel of record listed on the attached Service List, this 14th day of 

July, 2020. 

LUKS, SANTANIELLO, PETRILLO & COHEN 

Attorneys for Defendant 

110 SE 6TH STREET 

20TH FLOOR 

FORT LAUDERDALE, FL 33301 

(954) 761-9900 

By: /s/ David A. Lipkin 

 DANIEL J. SANTANIELLO 

 Florida Bar No.: 860948 

 DAVID A. LIPKIN 

 Florida Bar No.: 968463 

 LUKSFLL-Pleadings@LS-Law.com 

 

SERVICE LIST 

COUNSEL FOR PLAINTIFF 

R. Timothy Vannatta, Esquire 

RUBENSTEIN LAW 

9130 S. Dadeland Blvd., PH 

Miami, FL 33156 

305-661-6000 

Tim@rubensteinlaw.com; 

JMolano@rubensteinlaw.com; 

eservice@rubensteinlaw.com

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