[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 14-14842

Non-Argument Calendar

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D.C. Docket No. 1:14-cv-20745-CMA

CHRISTIAN CACCIAMANI, 

NORA ACEVEDO CACCIAMANI, 

his wife, 

 Plaintiffs-Appellants,

 versus

TARGET CORPORATION, 

 Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Florida

________________________

(July 14, 2015)

Before HULL, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM: 

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In this premises liability action, plaintiff Christian Cacciamani 

(“Cacciamani”)1 claims he was injured by the negligence of defendant Target 

Corporation. While shopping at a Target store, Cacciamani walked into a metal 

clothing rack and struck his right eye. The district court granted summary 

judgment to Target. On appeal, Cacciamani argues the district court erred in 

rejecting the theory of negligence he raised in response to Target’s motion for 

summary judgment: that defendant Target engaged in a negligent “mode of 

operation,” causing his injury. After careful review, we affirm the district court’s

order granting summary judgment.

I. BACKGROUND

A. The November 2011 Incident

On November 1, 2011, plaintiff Cacciamani entered a Target store in South 

Florida.2 He was familiar with the store and its layout from multiple prior visits. 

After selecting items for purchase, plaintiff Cacciamani walked down the center 

aisle of the store and then turned, proceeding down an aisle perpendicular to the 

center aisle. This aisle, where the incident occurred, was approximately ten feet 

wide, well-lit, and covered with a vinyl flooring. 

 1

Christian Cacciamani’s wife, Nora Cacciamani, is also a plaintiff in this action, asserting 

a derivative loss of consortium claim. For ease of reference, and because all the relevant facts of 

the incident involve only plaintiff Christian Cacciamani, we refer to him as “plaintiff 

Cacciamani” throughout. 

2

We recite the facts in the light most favorable to the non-moving party, here plaintiff 

Cacciamani.

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Plaintiff Cacciamani took approximately twelve to fifteen steps after turning 

before he walked into the arm of a four-wheeled, metal clothing rack. Cacciamani 

stated that he was not distracted by anything prior to this incident and that nothing 

obstructed his vision as he walked down the aisle. Cacciamani further stated: (1) 

that he did not notice the clothing rack before walking into it; (2) that the arm of 

the clothing rack had no clothing or hangers on it at the time; and (3) that the arm 

of the rack extended from a carpeted shopping area into the vinyl-floored aisle. 

The four wheels of the clothing rack were all on the carpeted area. 

Walking into the clothing rack, plaintiff Cacciamani struck the arm of the 

rack with his right eye. He fell backwards, landing on his back, bumping his head, 

and dropping his items for purchase. Though “dazed,” Cacciamani’s only 

immediate concern was with his right eye, out of which he could not then see. 

Immediately after the incident, plaintiff Cacciamani was assisted by Target 

employees. These employees first escorted Cacciamani to customer service, where 

he was given ice and eye drops for his eye. They then returned with Cacciamani to 

the location of the clothing rack. An employee filed a Guest Incident Report 

recounting plaintiff Cacciamani’s version of events. Further, that employee 

photographed the clothing rack in question. Both employees who were deposed 

stated that the clothing rack was not protruding into the aisle in an irregular 

fashion. 

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Plaintiff Cacciamani stated that the vision in his right eye was blurry 

immediately after the incident. He drove himself home, but later that day saw the 

first of several doctors. At the time of his deposition in this case, plaintiff 

Cacciamani associated the following ongoing health problems with the November 

2011 incident: limited vision loss in his right eye, light sensitivity, a visible 

“floater” in his right eye that appears as the number eight, persistent headaches, 

and the onset of seizures (for which he is now medicated) after the event. 

B. The Complaint

On July 25, 2012, Plaintiff Cacciamani filed a negligence action in state 

court. On November 13, 2012, that case was removed to the United States District 

Court for the Southern District of Florida on the basis of diversity of citizenship.3

On December 26, 2013, the parties filed a stipulation of voluntary dismissal and, 

on December 27, 2013, the district court entered an order dismissing the case 

without prejudice. 

On February 28, 2014, plaintiff Cacciamani then re-filed the underlying 

action in the district court. The complaint alleged that Target breached its duty of

reasonable care to plaintiff by allowing a dangerous condition to exist and in 

failing to warn customers about it. Specifically, the complaint alleged:

[Target] allowed a dangerous condition to exist on its premises, 

 3

See 28 U.S.C. § 1332. Plaintiff Cacciamani is a citizen of Florida; defendant Target is a 

Minnesota corporation with its principal place of business in Minnesota. 

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including, but not limited to, a metal clothing rack/rod that had been 

misplaced and/or was protruding into the aisle and/or was left in a 

dangerous condition in that the product was not pushed to the end of 

the rack so that the skinny rod protruding into the walkway would be 

more noticeable causing Plaintiff, CHRISTIAN CACCIAMANI, to 

walk into this hidden protruding metal rod with his eye and then this 

trauma caused him to fall to the ground and sustain serious injuries.

Further, the complaint stated that defendant Target “either knew or should have 

known” of this “dangerous condition,” yet was “negligent [in] failing to correct or 

warn of this condition.”4

C. District Court Proceedings

On March 20, 2014, defendant Target filed its answer, denying all relevant 

allegations and asserting as affirmative defenses that: (1) plaintiff Cacciamani 

caused his own injury; and (2) the condition referred to in the complaint was an 

“open and obvious condition for which no warning was required under Florida 

law” (emphasis added). By district court order dated April 11, 2014, all motions to 

amend pleadings were to be filed by May 15, 2014. Discovery followed.

On August 8, 2014, defendant Target filed a Motion for Final Summary 

Judgment and Incorporated Memorandum of Law. Target argued that “no genuine 

issue of material fact exists which could establish that Target breached any duties 

owed to Plaintiffs or that Target had actual or constructive notice of the allegedly 

‘dangerous condition’ presented.” Target also argued that the condition presented

 4

A claim for loss of consortium was also brought on behalf of Mrs. Cacciamani. 

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“was so open and obvious that, as a matter of law, it cannot be found to have 

constituted a dangerous condition.” 

In response, plaintiff Cacciamani did not argue that defendant Target had 

actual or constructive notice of the allegedly dangerous condition he was asserting. 

Plaintiff Cacciamani did not respond to defendant Target’s argument that the 

clothing rack was so open and obvious it could not constitute a dangerous 

condition. 

Rather, Cacciamani argued, for the first time, that disputed questions of fact 

existed regarding Target’s possible negligence “under the ‘Mode of Operation’ 

theory.” 

In reply, defendant Target argued: (1) that plaintiff Cacciamani had 

improperly raised a new theory of negligence for the first time in his responsive

brief; and (2) that, even if such a claim could be asserted, Cacciamani’s “mode of 

operation” theory was meritless because he had not identified any specific 

negligent mode of operation instituted by Target. 

In a September 25, 2014 order, the district court granted defendant Target’s 

motion for summary judgment. The district court reasoned: (1) that plaintiff 

Cacciamani’s “unambiguous allegations make clear [Cacciamani] did not assert a 

negligence claim based on a mode of operation theory”; (2) that Cacciamani 

“cannot rely on an un-plead[ed] claim to survive summary judgment”; and (3) that, 

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regardless, Cacciamani did not present “any evidence to suggest a reasonable 

finder of fact could conclude Target’s mode of operation was negligent, and 

therefore, even if the claim had been properly pleaded, [Cacciamani] would not 

survive summary judgment on th[at] basis.” 

Plaintiff Cacciamani at no time sought to amend the complaint. He did not 

file any motions for reconsideration by the district court. Cacciamani did timely 

appeal the grant of summary judgment. 

II. STANDARD OF REVIEW

This Court reviews a district court’s grant of summary judgment de novo. 

Ellis v. England, 432 F.3d 1321, 1325 (11th Cir. 2005). Summary judgment shall 

be rendered if the pleadings, the discovery and disclosure materials on file, and any 

affidavits show that there is no genuine issue as to any material fact and that the 

movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a), (c).

This court “view[s] all evidence and make[s] all reasonable inferences in favor of 

the party opposing summary judgment.” Chapman v. AI Transport, 229 F.3d 

1012, 1023 (11th Cir. 2000) (en banc). “[T]he plain language of Rule 56 mandates 

the entry of summary judgment against a party who fails to make a showing 

sufficient to establish the existence of an element essential to that party’s case, and 

on which that party will bear the burden of proof at trial.” Jones v. UPS Ground 

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Freight, 683 F.3d 1283, 1292 (11th Cir. 2012) (quotation omitted and alterations 

adopted).

III. DISCUSSION

A. “Mode of Operation” Claim

We briefly explain the “mode of operation” theory to illustrate the 

distinction between what was pled and what was later argued before the district 

court. The Florida Supreme Court explained the negligent mode of operation rule 

in the case of Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256, 259, 

260-61 (Fla. 2002). The Markowitz Court explained that, “the basis for the 

negligent mode of operation theory is the claim that the specific mode of operation 

selected by the premises owner or operator resulted in the creation of a dangerous 

or unsafe condition.” Id. at 260. The “rule looks to a business’s choice of a 

particular mode of operation and not events surrounding the plaintiff’s accident.” 

Id. (quotation omitted).

On appeal, plaintiff Cacciamani argues that the district court erred by 

requiring Cacciamani to plead his “mode of operation” theory of negligence in his 

initial complaint. Defendant Target argues that the district court was correct not to 

consider the “mode of operation” theory because it did not arise until plaintiff 

Cacciamani’s response to Target’s summary-judgment motion and thus Target had 

no notice of such a claim. 

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B. New Theory in Summary-Judgment Response

The district court correctly held that Cacciamani’s new responsive theory at 

the summary-judgment stage was too little, too late. It is the complaint that must 

give the defendant notice of what the plaintiff complains. See Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964 (2007) (stating that the 

purpose of Rule 8’s liberal pleading guidelines is to “give the defendant fair notice 

of what the claim is and the grounds upon which it rests.” (ellipsis omitted)).

The complaint here undeniably did not assert a negligence claim based on a 

“mode of operation” theory. Quite clearly, the complaint asserted a negligence 

claim based on defendant Target “allow[ing] a dangerous condition to exist on its 

premises” and “failing to correct or warn of this condition” of which Target “either 

knew or should have known.” Discovery proceeded on the basis of this allegation. 

So too did defendant Target’s Motion for Summary Judgment. Only in response to 

that motion did plaintiff Cacciamani develop this alternate theory. 

That was not the proper means by which to raise the new claim. “At the 

summary judgment stage, the proper procedure for plaintiffs to assert a new claim 

is to amend the complaint in accordance with [Federal Rule of Civil Procedure] 

15(a). A plaintiff may not amend [his] complaint through argument in a brief 

opposing summary judgment.” Gilmour v. Gates, McDonald & Co., 382 F.3d 

1312, 1315 (11th Cir. 2004). Plaintiff Cacciamani did not seek to amend his

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complaint. As the district court noted, no additional relevant discovery materials 

were made available after the May 15, 2014 deadline to amend the complaint. 

Plaintiff Cacciamani did not attempt to show good cause for the delay in asserting 

the “mode of operation” theory. 

In addition, the complaint failed to state a cause of action under “mode of 

operation.” Cacciamani’s complaint did not allege that Target had a specific 

policy or rule in place that created the dangerous condition. Rather, it stated that 

Target allowed a condition to exist and failed to warn customers of that condition. 

Plaintiff Cacciamani’s complaint does not identify any specific negligent mode of 

operation instituted by defendant Target. Defendant Target thus was not on notice 

that plaintiff Cacciamani ever intended to raise the “mode of operation” theory in 

support of his negligence claim.

Accordingly, the district court correctly found that the “negligent mode of 

operation claim, raised for the first time in their response memorandum, [was] not 

properly before the Court and therefore c[ould n]ot be considered at th[at] stage.” 

And plaintiff Cacciamani did not seek leave from the court to file a surreply when 

defendant Target argued that the “mode of operation” theory had not been properly 

pled.

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C. Lack of Evidence

Even assuming arguendo that plaintiff Cacciamani had properly pled the 

“mode of operation” theory in his complaint, summary judgment was still properly 

granted here. The theory is viable only where “the evidence establishes a specific 

negligent mode of operation such that the premises owner could reasonably 

anticipate that dangerous conditions would arise as a result of its mode of

operation.” Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 332 (Fla. 2001). 

Cacciamani has not identified such a “specific negligent mode of operation” nor 

supported such an allegation with evidence. The closest plaintiff Cacciamani 

comes is to assert that a system of using wheeled clothing racks with arms that may 

be emptied of clothing constitutes such a dangerous condition. 

Target responds with evidence that: (1) its actual policy, or mode of 

operation, is to instruct employees that hanging merchandise should regularly be 

pulled to the end of clothing rack arms; and (2) “[t]his scenario essentially 

describes every major retail store on pretty much any given day of the year.” The 

district court properly held that plaintiff Cacciamani could not survive summary 

judgment on the “mode of operation” claim in any event under the evidence in the 

record of this case.5

 5

On appeal, defendant Target separately argues that the open and obvious nature of the 

allegedly dangerous condition warrants the grant of summary judgment on all of plaintiff 

Cacciamani’s claims. We need not reach that issue.

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IV. CONCLUSION

For the foregoing reasons, we affirm the district court’s order granting 

summary judgment to defendant Target.6

AFFIRMED.

 

6

Following the summary-judgment order, defendant Target filed a motion for costs and 

attorney’s fees under Florida Statute § 768.79(1), based on Target’s earlier offer of settlement.

The district court stayed that motion pending the outcome of this appeal. Defendant Target has 

separately filed a motion for appellate attorney’s fees and costs with this Court. 

We deny defendant Target’s motion for attorney’s fees before this Court. Nothing herein 

should be construed as addressing the issue pending before the district court.

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