THOMAS B. SMITH, Magistrate Judge.
This matter is before the Court on Defendant Bravo Brio Restaurant Group, Inc.'s Amended Motion to Strike Allegation of Negligent Mode of Operation from Plaintiff's Complaint (Doc. 19). The motion is due to be
Rule 12(f) of the Federal Rules of Civil Procedure allows a court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Motions to strike serve "to `clean up the pleadings, streamline litigation, and avoid unnecessary forays into immaterial matters.'"
Motions to strike are disfavored and are not granted "unless clearly warranted."
Defendant maintains that paragraph 9(j) of the complaint should be stricken because FLA. STAT. § 768.0755 precludes Plaintiff from relying on "mode of operation theory" as a basis for liability in this slip-and-fall case. Plaintiff counters that "mode of operation theory" survives the passage of FLA. STAT. § 768.0755 because it is based on the common law and § 768.0755(2) provides that the statute "does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises."
The "mode of operation theory" allows a slip-and-fall plaintiff to recover by showing that a defendant failed to exercise reasonable care in selecting a mode of operation, without showing that the defendant had actual or constructive knowledge of the hazardous condition. The Florida Supreme Court recognized mode of operation theory as early as 1948 for "[p]laces of amusement where large crowds gather," such as race tracks, amusement parks, and stadiums.
In interpreting § 768.0755, this Court must "strive to effectuate the legislature's intent."
Section 768.0755 requires plaintiffs who "slip[] and fall[] on a transitory foreign substance in a business establishment" to prove "that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it." FLA. STAT. § 768.0755(1). The statute provides that a plaintiff may establish constructive knowledge by "circumstantial evidence showing that: (a) The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or (b) The condition occurred with regularity and was therefore foreseeable." Subsection (2) of § 768.0755 provides that "[t]his section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.
The plain language of subsection (1) requires without exception, proof of actual or constructive knowledge as a necessary element of a slip-and-fall claim.
Plaintiff's argument that her negligent mode of operation claim survives because it arises under the common law and § 768.0755 "does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises" lacks merit. § 768.0755(2). If, as Plaintiff urges, subsection (2) of the statute is construed to allow claims based on mode of operation theory that would effectively read subsection (1) out of the statute. "[A] basic rule of statutory construction provides that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless."
Next, Plaintiff argues that § 768.0755 "merely establishes the burden of proof in a slip and fall case" but "does not affect what causes of action a plaintiff may bring." (Doc. 20 at 4-5). Plaintiff's cause of action is for negligence including by engaging in a mode of operation which Defendant knew or should have known would result in conditions dangerous to the general public. If this claim remains in the complaint then the Court expects Plaintiff will ask for a jury instruction on negligent mode of operation. This would be contrary to § 768.0755's requirement that a slip and fall plaintiff prove actual or constructive knowledge in order to recover. Section 768.0755 has clearly eliminated the mode of operation theory as a basis for recovery in slip-and-fall cases and Plaintiff may not pursue her claim on this basis. This leads the Court to conclude that Plaintiff's claim based upon the negligent mode of operation theory is "immaterial, impertinent, or scandalous." FED.R.CIV.P. 12(f). Accordingly, Defendant's motion is