Publix Super Markets, Inc. v. Blanco—(J. Lindsey; 3DCA; 1/25/23).
This is a slip-and-fall case where Blanco slipped on something wet on a Publix floor. He filed a 15- page notice of deposition of Publix’s corporate representative (“corporate rep”) that listed 52 main areas of inquiry, but it was more like 150 when you counted the subsections. Publix filed a motion for a protective order for some of the areas of inquiry.
There was a TWO-DAY hearing on the motion. Though the trial court granted Publix’s motion in part, Publix was still unhappy with four areas of inquiry, particularly the request for corporate-wide documents relating to: (1) flooring materials; (2) safety committee meetings; (3) root cause analysis and development of risk management policies and procedures; and (4) workers’ compensation claims. Publix filed a petition for a writ of certiorari.
The DCA summarized the standard for seeking cert to quash a discovery order. Publix had to demonstrate 1) a material injury 2) that could not be corrected on appeal and 3) a departure from the essential requirements of law.
The DCA balanced two competing strains of caselaw. When courts uphold these orders, they tend to state that an overbroad discovery order is not a sufficient basis for cert. When courts want to quash these orders, they note that orders that grant carte blanche to obtain irrelevant discovery cause 3 irreparable harm. If courts are convinced that the ordered discovery is not relevant and cannot lead to the discovery of relevant information, courts can grant the petition for cert.
The first problem with the discovery order in this case was that the plaintiff wanted slip-and-fall reports for the entire corporation—over 1,300 stores. Section 768.0755, Fla. Stat., governs premises liability for transitory foreign substances in a business establishment, and that statute requires plaintiffs to show that the business establishment had 1) actual or constructive knowledge of the dangerous condition and 2) should have taken action to remedy it. Constructive knowledge can be demonstrated by showing that the condition existed long enough that they should have known of it or that the condition occurred so regularly that it was foreseeable. The DCA agreed that slip-and-falls that happened at other Publix locations were not relevant to show actual or constructive knowledge of a danger in the store involved in this case. The plaintiff argued that he was pursuing a “negligent-modeof-operation” theory where actual or constructive knowledge was not an element, but the DCA noted that the Legislature had deleted the negligent-mode-of-operation statute that allowed suits on the basis of “negligent maintenance, inspection, repair, warning, or mode of operation.” In 2010, the Legislature replaced that statute with the current actual-or-constructive-knowledge statute. (NOTE: The DCA still did not explain why slip-and-falls at other Public locations would not provide constructive notice if the transitory surface was due to some cause that was common to all Publix locations.)
After noting that negligent mode of operation is not a proper theory of relief, the DCA quashed the discovery order to the extent that it permitted corporate-wide discovery.
Terry P. Roberts
Director of Appellate Practice Fischer Redavid PLLC