Bongiorno v. Americorp, Inc., 159 So. 3d 1027

Plaintiff Jennifer Bongiorno sued Americorp after slipping and injuring herself on an unusually slippery third-floor restroom floor at her workplace.
Americorp denied liability and asserted comparative negligence as an affirmative defense, arguing Bongiorno’s four-to-five inch high heels contributed to her fall.
The case was tried before the court (bench trial); the trial court found both parties 50% negligent and entered judgment for Bongiorno reduced for comparative negligence.
Bongiorno appealed the trial court’s allocation, arguing no record facts supported a duty or negligence for wearing high heels to work.
The appellate court analyzed whether Americorp met its burden to prove Bongiorno’s footwear created a foreseeable zone of risk and thus a duty not to wear high heels.
The appellate court reversed, holding Americorp failed to prove comparative negligence based on footwear and remanded for entry of judgment for Bongiorno without reduction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiff was comparatively negligent for wearing high heels	Bongiorno: No duty or evidence that wearing heels made the harm foreseeable or caused the fall	Americorp: Choice to wear 4–5" heels contributed to and helped cause the fall; another employee avoided falling due to safer footwear	Reversed — Americorp failed to prove a duty or that heels created a foreseeable zone of risk; comparative negligence not established
Who bears burden to prove comparative negligence	Bongiorno: Burden rests with defendant asserting the defense	Americorp: Agreed burden applies but argued it met it	Court: Confirmed defendant bears burden and Americorp did not meet it
Source of duty analysis	Bongiorno: No legislative/regulatory duty; duty cannot arise from mere existence of risk	Americorp: Duty arises from general facts — plaintiff’s footwear choices	Court: Duty must arise from defendant creating/controlling a foreseeable zone of risk; general facts here insufficient
Sufficiency of evidence for causation	Bongiorno: Statements about heels and co-worker testimony insufficient to show causation	Americorp: Plaintiff’s statements to physicians and co-worker testimony support causation	Court: Evidence insufficient to show plaintiff’s footwear was a proximate cause of the injury

Philip Morris USA, Inc. v. Arnitz, 933 So.2d 693 (Fla. 2d DCA 2006) (party asserting comparative negligence bears the burden of proof)
Cuozzo v. Ronan & Kunzl, Inc., 453 So.2d 902 (Fla. 4th DCA 1984) (comparative negligence defense burden principles)
Curd v. Mosaic Fertilizer, LLC, 39 So.3d 1216 (Fla. 2010) (elements of negligence claim enumerated)
Dorsey v. Beider, 139 So.3d 860 (Fla. 2014) (sources from which a duty of care may arise)
ZP No. 54 Ltd. P’ship v. Fidelity & Deposit Co. of Md., 917 So.2d 368 (Fla. 5th DCA 2005) (duty inquiry begins with whether defendant’s conduct created a foreseeable zone of risk)
Land Title of Cent. Fla., LLC v. Jimenez, 946 So.2d 90 (Fla. 5th DCA 2006) (foreseeable consequences as those a prudent person would anticipate)
Demelus v. King Motor Co. of Fort Lauderdale, 24 So.3d 759 (Fla. 4th DCA 2009) (to impose duty defendant’s conduct must create or control the risk)
Aguila v. Hilton, Inc., 878 So.2d 392 (Fla. 1st DCA 2004) (discussing limits on duty based on creation/control of risk)
Jackson Hewitt, Inc. v. Kaman, 100 So.3d 19 (Fla. 2d DCA 2011) (duty analysis focused on whether defendant created a foreseeable zone of risk)