Third District Court of Appeal State of Florida

Opinion filed June 27, 2018. Not final until disposition of timely filed motion for rehearing.

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No. 3D17-1508 Lower Tribunal No. 14-10561 ________________

Vernal Khorran, Appellant,

vs.

Harbor Freight Tools USA, Inc., Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Eric William Hendon, Judge.

Billera Law (Boca Raton); The Powell Law Firm, P.A., and Brett C. Powell, for appellant.

Kubicki Draper, and G. William Bissett, Jr. and Caryn L. Bellus, for appellee.

Before EMAS, SCALES and LUCK, JJ.

SCALES, J.

In this personal injury action, Vernal Khorran, the plaintiff below, appeals a

final summary judgment entered against him. We reverse because genuine issues of material fact exist as to whether Harbor Freight Tools USA, Inc., the defendant

below, either (i) had actual or constructive knowledge of a dangerous condition on

its premises that injured Khorran; or (ii) created a dangerous condition on its

premises through its mode of operation in stacking the item that allegedly injured

Khorran.

I. FACTS

On June 23, 2010, Khorran was shopping at a Harbor Freight store in

Miami. According to Khorran, while he was perusing the shelves in a store aisle, a

large metal object fell off an upper aisle shelf and struck Khorran from behind,

injuring his knee. Apparently, Khorran was facing a wall of shelves when an item

on one of the shelves behind him fell and somehow struck him.

Khorran filed a two-count, second amended complaint against Harbor

Freight alleging negligence (Count I) and negligent mode of operation (Count II).

Both of these claims were based, in part, on allegations that large and heavy

equipment – such as the object that hit him – were displayed in an unsafe manner

over areas that Harbor Freight’s invitees traverse.

Khorran testified at his deposition that he did not see the object on the aisle

shelf before the incident. Nor did Khorran see the object on the ground after it hit

him. Khorran testified, however, that he saw the object in his peripheral vision as

it was falling. Khorran also testified that while he was being attended to after the

2 incident, a store employee showed Khorran a metal trailer hitch and identified the

hitch as the object that had struck him. Though Harbor Freight asserts that its store

policy is to display such heavy objects only on lower shelves, Khorran testified

that, immediately after the incident, he saw trailer hitches being stored on the top

shelf in question at a height of at least eight or nine feet from the ground.

Harbor Freight filed a motion for summary judgment, claiming there was no

evidence that Harbor Freight had any actual or constructive knowledge or notice of

the alleged dangerous condition prior to the incident. In its motion, Harbor Freight

argued that “[e]ven assuming that it was a trailer hitch that fell on [Khorran] and

that it had been dangerously stacked, [Khorran] . . . adduced no evidence as to

where the trailer hitch was located at the time of the incident, that Harbor Freight

created the dangerous condition, or that Harbor Freight had actual or constructive

notice of it.” In support of its summary judgment motion, Harbor Freight also

produced an expert affidavit, which opined that Khorran’s version of events was a

“physical impossibility.”

In response, Khorran filed his own expert affidavit, which opined that

Khorran’s version of events was “reasonable.” In his response, Khorran also

argued that he was entitled to a res ipsa loquitur inference and, therefore, that any

actual or constructive notice of a dangerous condition is irrelevant. While the

transcript from the summary judgment hearing reflects that the trial court rejected

3 Harbor Freight’s “impossibility” claim, the trial court, nevertheless, entered

summary judgment for Harbor Freight, concluding that the record evidence was

devoid of any genuine issue of material fact. Khorran timely appealed the trial

court’s summary judgment for Harbor Freight.

II. ANALYSIS1

Khorran asserts two distinct, albeit similar, negligence claims against Harbor

Freight. Khorran’s negligence claim (Count I) is premised upon there being a

dangerous condition at the Harbor Freight store and requires proof that Harbor

Freight either knew or should have known of the alleged dangerous condition. In

the alternative, Khorran’s “negligent mode of operation” claim (Count II) is

premised upon Harbor Freight’s alleged conduct in creating the dangerous

condition, thus obviating the knowledge element inherent in the negligence claim.

We discuss each claim below, and why the record evidence precludes summary

judgment on either claim.

A. Khorran’s Negligence Claim

A property owner owes an invitee a “duty to use reasonable care in

maintaining the property in a reasonably safe condition.” Grimes v. Family Dollar

Stores of Fla., Inc.,

(Fla. 3d DCA 2016). Where an invitee

has been injured by a dangerous condition on a business premises and seeks to

1We review a trial court summary judgment de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P.,

(Fla. 2000).

4 recover damages from the premises owner, the invitee ordinarily must establish

that the premises owner had either actual or constructive knowledge or notice of

the dangerous condition.

Constructive knowledge may be inferred if the

dangerous condition existed for such a length of time that in the exercise of

ordinary care, the premises owner should have known of it and taken action to

remedy it. Id. at 427-28.

In his deposition, Khorran testified that: (i) two Harbor Freight employees

were stacking the shelves behind him, in the same aisle where Khorran was

standing; (ii) Khorran saw the object that hit him fall from above and behind his

head; (iii) one of the Harbor Freight employees who had been stacking the shelves

behind Khorran identified a trailer hitch as the object that had struck him; (iv)

immediately following the incident, Khorran looked up from where he was seated

and saw multiple, similar trailer hitches stored on the top shelf, directly behind

where he had been standing; and (v) the top shelf was at least eight or nine feet

high, requiring the use of a ladder to reach it.

Viewing this evidence in a light most favorable to Khorran, reasonable

inferences can be made that the trailer hitch that hit Khorran was dangerously

stacked on the top shelf behind where Khorran was standing, and that the Harbor

Freight employees who then were stocking the shelves somehow caused the trailer

hitch to fall. That the top shelf was not reachable without the assistance of a ladder

5 and that multiple trailer hitches were displayed there support a reasonable

inference that a Harbor Freight employee either created the dangerous condition by

placing the trailer hitches there – as opposed to a random customer re-shelving a

lone, unwanted item in the wrong place – or that the dangerous condition existed

for a sufficient period of time that a Harbor Freight employee should have known

about it and taken steps to remedy it.

Contrary to the trial court’s finding, there is record evidence sufficient to

create a genuine issue of material fact precluding summary judgment for Harbor

Freight on whether it had actual or constructive knowledge of the dangerous

condition. Id. Hence, we reverse the trial court’s summary judgment for Harbor

Freight on Count I of Khorran’s second amended complaint.

B. Khorran’s Negligent Mode of Operation Claim

A claim for negligent mode of operation “recognizes the common-sense

proposition of negligence law that the duty of care required under the

circumstances may consist of taking reasonable precautions so as to minimize or

eliminate the likelihood of a dangerous condition arising in the first instance.”

Markowitz v. Helen Homes of Kendall Corp.,

(Fla. 2002).

Under this negligence theory, the focus is on the manner in which the premises

owner operates, rather than on the particular events surrounding the plaintiff’s

accident.

. If the premises owner operates in a manner that creates a

6 dangerous or unsafe condition, the premises owner can be held liable.

Importantly, under the mode of operation theory of negligence, “the requirement of

establishing constructive knowledge is altered or eliminated.” Owens v. Publix

Supermarkets, Inc.,

(Fla. 2001).2

As the Florida Supreme Court has explained:

The duty of premises owners to maintain their premises in a safe condition is not exclusively limited to detecting dangerous conditions on the premises after they occur and then correcting them; the duty to exercise reasonable care may extend to taking actions to reduce, minimize, or eliminate foreseeable risks before they manifest themselves as particular dangerous conditions on the premises. Of course, the duty of care may vary with the circumstances. See, e.g., Wal–Mart Stores, Inc. v. Rogers,

(Fla. 1st DCA 1998) (whether store was negligent in manner in which it hung radios from hook so as to create a dangerous condition was jury question); Ochlockonee Banks Rest., Inc. v. Colvin,

(Fla. 1st DCA 1997) (where jury could have determined that the defendant’s negligence consisted of allowing a dangerous condition to exist by allowing people to place their drinks on the railing immediately adjacent to the dance floor); Klaue v. Galencare, Inc.,

(Fla. 2d DCA 1997) (“[W]hether a business entity was negligent in stacking items on a shelf at a particular height, in a particular manner, and at a particular location thus causing a dangerous condition to exist is a jury question.”); Harrell v. Beall’s Dep’t Store, Inc.,

(Fla. 2d DCA 1993) (whether a department store created a dangerous condition by the manner in which it mounted a display rack is a jury question).

Markowitz,

.

2 We recognize that this no longer holds true in premises liability cases involving a slip and fall on a transitory foreign substance. See § 768.0755, Fla. Stat. (2010); Kenz v. Miami-Dade Cty.,

(Fla. 3d DCA 2013). This is not such a case.

7 Here, a Harbor Freight employee testified in his deposition that when

Harbor Freight receives a shipment of trailer hitches, an employee removes the

trailer hitches from the boxes they are shipped in and then stacks them loosely on

the store shelves.3 Harbor Freight also introduced evidence that it has a policy of

displaying, and does display, heavy metal objects on lower shelves (below eye

level). Yet, in his deposition, Khorran testified that he saw several, metal trailer

hitches stored on the top shelf, at a height of eight or nine feet (significantly higher

than eye level).

“Under Florida law, . . . the question of whether a business entity was

negligent in stacking items on a shelf at a particular height, in a particular manner,

and at a particular location thus causing a dangerous condition to exist is a jury

question.” Klaue v. Galencare, Inc.,

(Fla. 2d DCA 1997);

Valdes v. Faby Enters., Inc.,

(Fla. 3d DCA 1986) (“Whether

Faby was negligent in stacking the cases of beer at the height and in the manner

and location in which it did was a question for the jury.”). Simply put, we cannot

conclude, based on our de novo review of the summary judgment evidence, that

Harbor Freight met its burden of establishing the absence of any genuine issue of

material fact with regard to Khorran’s negligent mode of operation claim. Hence,

3 The employee confirmed that, because the trailer hitches are not in boxes at the time, the hitches can fall off the shelf during the stocking process and dent the floor.

8 we also reverse the trial court’s summary judgment for Harbor Freight on Count II

of Khorran’s second amended complaint.

III. CONCLUSION

Because genuine issues of material fact exist as to both Khorran’s

negligence claim and his negligent mode of operation claim against Harbor

Freight, we reverse the trial court’s summary judgment and remand for

proceedings consistent herewith. Reversed and remanded with instructions.4

4 Because we reverse the trial court summary judgment, we need not reach the issue of whether, under the particular facts of this case, Khorran is entitled to a res ipsa loquitur inference.

9