Publix Super Markets, Inc. v. Roth

Second DCA

Publix Super Markets, Inc. v. Roth—(C.J. Morris; 2DCA; 2/17/23).

In this slip-and-fall case, the plaintiff set Publix’s corporate representative for deposition under Florida Rule of Civil Procedure 1.310(b)(6). Plaintiff slipped on a transitory substance. Roth sought information regarding similar incidents at any Publix store (not just in Florida) for the ten years preceding his slip and fall. He also sought information on corporate practices and policies that would support a “negligent mode of operation” theory, but that theory has been eliminated under Florida law.

When the trial court denied a protective order based on overbreadth in light of section 768.0755, Florida Statutes (2017), Publix filed a petition for a writ of certiorari.

"Certiorari review 'is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.'” Overbreadth is not ordinarily something that can be raised in a petition for cert, but a discovery order can be challenged for overbreadth if it crosses over the line into granting “carte blanche” to irrelevant discovery.

In cases where a plaintiff alleges that he tripped on a transitory substance, section 768.0755, Fla. Stat., requires that the plaintiff show that the business had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Caselaw holds that discovery about prior slip-and-falls is restricted to that specific store location, not the total network of stores under the corporate umbrella of ownership.

The Second DCA followed the January 25, 2023, decision in Publix Super Markets v. Blanco from the Third DCA that holds that discovery orders that require corporate reps in transitory-substance slipand-fall cases to provide discovery on the issue of notice that extends to the whole corporation, not just notice from the specific store in question, depart from the essential requirements of law. The court left the door open slightly, stating that “Unless Roth can show that the information he requested is relevant to Publix's actual or constructive knowledge of the dangerous condition that caused Roth to slip at the Publix store at issue, Roth is not entitled to the information.” The order was quashed.

The court dismissed the petition with respect to the work product claims, finding them premature, noting: “If the trial court later applies the correct standard of relevancy under section 768.0755 and 4 determines that certain information is ‘otherwise discoverable,’ Publix will have an opportunity to file a privilege log.”

Terry P. Roberts
Director of Appellate Practice Fischer Redavid PLLC
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