Big win for MSZL&M and Attorney Maxwell Wihnyk!
MSZL&M and Jacksonville, Florida Associate, Maxwell Wihnyk obtained summary judgment in a personal injury claim against a national retailer. Plaintiff fell in a parking lot as she was on her way to shop. Plaintiff slipped as she stepped up onto the perimeter sidewalk surrounding the entire shopping complex. Plaintiff underwent extensive treatment, including multiple injections to her back and knees. Plaintiff was given a recommendation for total knee replacement.
Attorney Wihnyk argued Plaintiff could not prove the existence of a dangerous condition, the source of the dangerous condition, the length of time said dangerous condition existed, or if the national retailer had actual or constructive knowledge of the dangerous condition sufficient to provide an opportunity to correct and warn Plaintiff. In further defense of the claim, Attorney Wihnyk argued Plaintiff could not prove the national retailer had the requisite possession and control of the area of the incident. Pursuant to the lease agreement with the landlord and property owner, the landlord was to retain complete ownership and control with regards to maintenance of the sidewalk where Plaintiff alleged to have fallen. As such, the landlord had the non-delegable duty to maintain the sidewalk in a reasonably safe condition and to warn of any defects.
Following a hearing, the court granted the motion for summary judgment on the grounds that our client did not have the requisite ownership or control over the sidewalk and, therefore, did not have a duty to maintain the sidewalk in a reasonably safe condition or to warn of any defects.
Prior to the entry of summary judgment, MSZL&M issued a tender request to the landlord on behalf of the national retailer, citing the clear and unambiguous language of the lease agreement, and requesting the landlord immediately take up the defense of the underlying lawsuit and indemnify the national retailer. The landlord rejected the tender request. As a result of the entry of summary judgment, MSZL&M will pursue recovery of all counsel fees and costs from the landlord.