Those, like me, who grew up in the heyday of the grunge era might recall a popular band known as the Offspring. One of their hit songs was a catchy mid-‘90s tune called, “Come Out and Play,” which repeated the phrase “You gotta keep ‘em separated” in the chorus (the focus of the admonition being rival gang members).
That’s a ham-fisted segue into this week’s edition of the newsletter, which discusses the importance of avoiding pleading problems when asserting premises liability negligence claims. In short—you have to make sure to separate different theories of negligence in your complaint into separate counts.
By way of background, under Florida law, a person who controls a piece of property owes two independent duties to invitees (i.e., people who have been expressly or implicitly invited onto the property). First, to give warning of concealed perils that are known or should be known to the owner, but which are not known to the invitee. And second, to maintain the premises in a reasonably safe condition.
An order that Judge Melissa Damian in the Southern District of Florida recently entered is a good reminder to plaintiffs who are pleading breaches of both those duties to plead those claims in separate counts. Otherwise, the plaintiff risks that a court will dismiss both claims and require the plaintiff to replead.
The Richards Case
The case at issue is Richards v. The Fresh Market, Inc., No. 25-60642-CIV, 2025 WL 1734722, at *4 (S.D. Fla. June 23, 2025). The plaintiff in the case claimed that when she entered a Fresh Market store, the automatic sliding doors malfunctioned and closed on her, causing her to fall. The plaintiff filed a one-count complaint against Fresh Market in which she alleged two separate theories of liability—(1) that the store failed to adequately maintain the doors and (2) that the store failed to warn her about the malfunctioning doors.
In response, Fresh Market argued that the combination of those distinct negligence theories in a single count qualified as a “shotgun pleading” under the 11th Circuit’s decision in Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313 (11th Cir. 2015).
Judge Damian agreed and dismissed the complaint on that basis while simultaneously granting leave to the plaintiff to amend the complaint. The court reasoned that “the Eleventh Circuit considers lumping multiple causes of action into one count to be a form of shotgun pleading” and that courts in the Southern District of Florida “routinely dismiss negligence claims where (as here) different theories of negligence are improperly commingled into one negligence cause of action.”
Takeaway
When bringing negligence claims as a plaintiff, particularly in the premises liability context, avoid unforced errors like lumping two theories of negligence into a single count. Keep ‘em separated.