Khorran v. Harbor Freight Tools USA, Inc.

• Decision Date: 27 June 2018
• Docket Number: No. 3D17–1508,3D17–1508
• Citation: 251 So.3d 962
• Parties: Vernal KHORRAN, Appellant, v. HARBOR FREIGHT TOOLS USA, INC., Appellee.
• Court: Florida District Court of Appeals

251 So.3d 962

Vernal KHORRAN, Appellant,

v.HARBOR FREIGHT TOOLS USA, INC., Appellee.

No. 3D17–1508

District Court of Appeal of Florida, Third District.

Opinion filed June 27, 2018

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 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 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., 194 So.3d 424, 427 (Fla. 3d DCA 2016). Where an invitee has been injured by a dangerous condition on a business premises and seeks to 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. Id. 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 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...