Kelley Kronenberg Partner and Business Unit Leader Aaron Neifeld secured final summary judgment and dismissal with prejudice on behalf of the defendant in a negligence action carrying well-over $1 million in exposure.  

The plaintiff alleged she tripped on upraised pavers outside a department store at a South Florida mall on December 23, 2020. Aaron moved for summary judgment arguing the defendant had no actual or constructive notice of the upraised pavers, relying on City of Miami v. Guerrero and additional controlling authority establishing that photographs alone are insufficient to prove constructive notice. 

The plaintiff opposed the motion with post-incident photographs of the pavers and an affidavit from a retained expert engineer who inspected the area nearly five years after the incident, by which point the pavers had already been repaired. The expert opined that the displacement was consistent with erosion and that the condition should have been visible to the defendant prior to the incident. The Court found the affidavit insufficient, noting it failed to quantify how long the erosion process would take or provide any underlying evidentiary basis for the expert’s conclusions. The Court also declined to consider testimony from the paving contractor, finding it amounted to inadmissible speculation and improper lay opinion under Florida’s evidence code. 

The Court found no genuine dispute as to any material fact, entered final summary judgment in the defendant’s favor on all counts, and dismissed the case with prejudice. The Court retained jurisdiction for any timely filed motions for fees or costs. 

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