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`Plaintiff,
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`ARIANE GUTIERREZ, as Personal
`Representative of the Estate of GERARDO
`GUTIERREZ, deceased,
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`v.
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`PUBLIX SUPER MARKETS INC.,
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`Defendant.
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`IN THE CIRCUIT COURT OF THE 11TH
`JUDICIAL CIRCUIT IN AND FOR MIAMI-
`DADE COUNTY, FLORIDA
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`CASE NO.
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`COMPLAINT
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`COMES NOW the Plaintiff, ARIANE GUTIERREZ, as Personal Representative of the
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`Estate of GERARDO GUTIERREZ, deceased, and hereby sues the Defendant, PUBLIX SUPER
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`MARKETS, INC., and alleges as follows:
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`1.
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`2.
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`This is an action for damages in excess of $30,000 exclusive of interest and costs.
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`At all times material hereto, the Plaintiff was or will soon be the duly appointed
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`Personal Representative of the Estate of GERARDO GUTIERREZ, deceased.
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`3.
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`At all times material hereto, the Plaintiff and GERARDO GUTIERREZ are and/or
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`were residents of Miami-Dade County, Florida.
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`4.
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`At all times material hereto, the Defendant, PUBLIX SUPER MARKETS, INC.,
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`(“PUBLIX”) was and is a Florida corporation doing business in the State of Florida and was the
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`employer of GERARDO GUTIERREZ, deceased.
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`5.
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`At all times material hereto, GERARDO GUTIERREZ, age 70, worked in the deli
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`department of the PUBLIX store located at 1920 West Avenue in Miami Beach, Florida.
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`6.
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`On January 17, 2020, the Centers for Disease Control and Prevention (“CDC”)
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`announced enhanced screenings for those traveling to the United States in order to detect
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`symptoms associated with the 2019 novel coronavirus (“COVID-19”), which was of increasing
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`concern at that time.
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`7.
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`COVID-19 is a dangerous, contagious respiratory disease caused by severe acute
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`respiratory syndrome coronavirus 2 (SARS-CoV-2), to which the general public can be easily
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`exposed and it is not characteristic of or peculiar to any specific trade, occupation, process, or
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`employment.
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`8.
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`On January 30, 2020, the World Health Organization (“WHO”) declared a "public
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`health emergency of international concern" because of the outbreak of COVID-19.
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`9.
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` On January 31, 2020, United States Health and Human Services Secretary Alex
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`M. Azar II declared a public health emergency indicating that COVID-19 posed a serious public
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`health threat here in the United States.
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`10.
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`11.
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`On March 1, 2020, Florida reported its first confirmed case of COVID-19.
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`On March 1, 2020, Florida Governor Ron DeSantis issued Executive Order 20-51
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`directing the Florida Department of Health to issue a Public Health Emergency. That same day,
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`the Florida Surgeon General and State Health Officer declared a Public Health Emergency existed
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`in the State of Florida as a result of COVID-19.
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`12.
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`On March 9, 2020, Florida Governor Ron DeSantis issued Executive Order 20-52
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`officially declaring a State of Emergency as a result of COVID-19.
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`13.
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`On March 12, 2020, the President of the United States declared that the COVID-19
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`outbreak constituted a national emergency. At that time, 1,645 people from 47 states had been
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`infected with the virus. By March 14, 2020, 56 people had died due to COVID-19 and the numbers
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`were growing every day.
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`14.
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`On March 16, 2020, the Centers for Disease Control and Prevention (“CDC”)
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`issued guidance recommending that people adopt social-distancing measures to reduce their
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`exposure to the deadly COVID-19 virus. These measures were extended on March 29, 2020, when
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`the number of known deaths involving COVID-19 climbed to 3,169.
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`15.
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`On March 24, 2020, in light of the deadly nature of COVID-19 and its respiratory
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`transmission, Governor DeSantis issued Executive Order 20-83 directing the State Surgeon
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`General and State Health Officer to issue a public health advisory urging the public to avoid social
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`gatherings of 10 or more people and urging those who could work remotely to do so.
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`16.
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`By late March 2020, COVID-19 had become a national crisis not seen in the past
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`hundred years. Infection and death rates were growing daily, there was no vaccine to stop the
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`transmission and there was no effective treatment. Life as we had known it had totally changed
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`and people were scared. It is against this backdrop that PUBLIX’s actions must be scrutinized.
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`17.
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`According to PUBLIX’s website, it “cares about the health of [its] associates and
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`customers.” On or about March 25, 2020, PUBLIX uploaded to its website a statement from its
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`CEO, Todd Jones stating: “PUBLIX has remained in close contact with the Centers for Disease
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`Control and Prevention (CDC) and other federal and state agencies since January to monitor
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`developments and updated guidance on coronavirus (COVID-19).” According to Mr. Jones,
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`PUBLIX would “continue to focus on keeping [its] associates healthy—and [its] stores open and
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`stocked—to serve and support all our communities.” Mr. Jones further stated that PUBLIX was
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`working “around the clock” to ensure its stores were adequately sanitized.
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`18.
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`In reality, PUBLIX’s conduct at that time stood in stark contrast to Mr. Jones’
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`statement. During the very time period that PUBLIX was touting its efforts to keep employees
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`and customers safe, PUBLIX was prohibiting employees from wearing personal protective
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`equipment of any type despite the rapidly escalating COVID-19 virus.
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`19.
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`Incredibly, at least one PUBLIX employee was reportedly told, “You can either
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`work without a mask or go home.” Making matters worse, another employee reported, “We have
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`been instructed to not wear gloves or masks in case we ‘incite panic’ on the floor. There is
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`disciplinary action if we refuse to remove them.”
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`20.
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`On March 19, 2020, just six days prior to Mr. Jones’ statement, the Occupational
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`Safety and Health Administration (“OSHA”) received a complaint stating that the PUBLIX store
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`located at 14601 South Dixie Highway in Palmetto Bay, Florida was “refusing to let employees
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`wear gloves or masks because of corporate claiming it will scare the customers . . . .”
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`21.
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`The next day, on March 20, 2020, OSHA received another complaint regarding the
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`PUBLIX store located at 2270 SW 27th Avenue, Miami, Florida. A customer reported that
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`employees at the PUBLIX were not permitted to wear gloves or masks despite the fact that there
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`were over 100 reported cases of COVID-19 in Florida at that time.
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`22.
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`On March 21, 2020, OSHA received yet another complaint about PUBLIX. The
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`caller ominously described the complaint as “life threatening.” According to the caller—an
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`employee of a PUBLIX store in Destin, Florida—PUBLIX had “ordered [employees] not to wear
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`masks.” (emphasis added).
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`23.
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`On March 23, 2020, PUBLIX was notified by OSHA that it had received notice of
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`alleged workplace hazards at a PUBLIX store in Tallahassee, Florida. Specifically, OSHA had
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`been informed that PUBLIX was not providing employees with personal protective equipment
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`despite the mounting COVID-19 crisis. Even more concerning, an employee reported that
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`PUBLIX associates were “barred from wearing [gloves].” According to notes taken by the OSHA
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`representative, PUBLIX, consistent with its callous disregard for the safety of its employees,
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`declined the employee’s request for a mask and gloves because it “didn’t want customers to panic.”
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`24.
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`On March 24, 2020, PUBLIX was notified by OSHA that it had received another
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`notice of alleged workplace hazards at a PUBLIX store in Sandestin, Florida. In that report,
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`OSHA had been informed that PUBLIX “[e]mployees are not allowed to wear their personally
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`provided PPE in fear of contracting the COVID-19 virus.” The employee reported that PUBLIX
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`“prohibited [employees] from wearing face masks to protect themselves from breathing in the
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`coronavirus from the hundreds of customers who com[e] to the store every day. The store provides
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`no such protection for them.”
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`25.
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`In an e-mail dated April 3, 2020, Paul Coil, PUBLIX’s Senior Manager for safety,
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`admitted that “PUBLIX previously prohibited associates from voluntarily wearing gloves or
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`masks.” Mr. Coil explained that PUBLIX had imposed this prohibition allegedly based upon CDC
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`guidance asking people to refrain from using masks so that the supply chain could be preserved
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`for health care workers. At best, this statement ignores the fact that many of PUBLIX’s employees
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`could not socially distance in compliance with the CDC guidelines issued in March of 2020. At
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`worst, it was an after-the-fact excuse to cover up what PUBLIX’s employees were told by
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`management: you cannot wear the masks, even if you bring your own, because it scares off the
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`customers. PUBLIX’s concerns about losing business, however, substantially increased the risk
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`of COVID-19 exposure to each of its employees and in particular, GERARDO GUTIERREZ.
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`26.
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`In his April 3, 2020 e-mail, Mr. Coil stated that PUBLIX would only “allow select
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`associates who are not normally required to wear a mask or gloves the option to [wear] these items
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`for their personal comfort.” Meanwhile, just two days earlier, Mr. Coil had written to OSHA’s
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`Jacksonville office that PUBLIX would begin allowing associates to wear masks/gloves “on a
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`voluntary basis (where it does not impact food safety guidelines).”
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`27.
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`Despite its public statements, PUBLIX lagged behind its competitors every step of
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`the way, knowingly endangering its employees and customers by exposing them to the very real
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`risk that they would contract COVID-19 and die.
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`28.
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`By contrast, several other large grocery stores at the time were allowing and
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`encouraging employees to wear masks and other personal protective equipment, checking
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`employees’ temperatures, and limiting the number of customers who could enter their store at one
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`time. PUBLIX, however, did none of that at that time.
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`29.
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`As COVID-19 was spreading throughout Florida, unlike its competitors, PUBLIX
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`prohibited employees, including the decedent, GERARDO GUTIERREZ, from wearing masks
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`and gloves.
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`30.
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`GERARDO GUTIERREZ, was told by PUBLIX that he could not wear a mask
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`despite the fact that he wanted to wear one, but he continued to go to work each day because he
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`believed PUBLIX’s statements that it was taking all measures necessary to keep him safe.
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`31.
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`PUBLIX, however, minimized, downplayed, misrepresented, and otherwise
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`concealed the risk posed to its employees by its prohibition on masks and other personal protective
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`equipment. PUBLIX was more concerned with protecting its sales and profits fabricating the
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`excuse that customers would be “turned off” by employees wearing masks. PUBLIX intentionally
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`chose to protect sales over the health and well-being of its employees and customers knowing that
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`employees, especially a 70-year employee working next to a sick co-worker, such as GERARDO
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`GUTIERREZ, would be exposed to COVID-19 and die.
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`32.
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`PUBLIX’s conduct served to provide false comfort to GERARDO GUTIERREZ
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`that masks would not prove effective in preventing the spread of COVID-19 when it knew that
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`just the opposite was true.
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`33.
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`In March 2020, PUBLIX employees across the state were becoming infected with
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`COVID-19 and PUBLIX knew that. Meanwhile, PUBLIX continued to prohibit employees,
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`including GERARDO GUTIERREZ and others in the deli department, from wearing protective
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`masks despite their close proximity to other employees, customers, and suppliers who were
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`undoubtedly transmitters of the virus.
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`34.
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`On March 27, 2020 and March 28, 2020, GERARDO GUTIERREZ worked in the
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`deli department of the PUBLIX supermarket located at 1920 West Avenue, Miami Beach, Florida
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`alongside a co-worker, “Jane Doe”. 1
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`35.
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`At that time, Jane Doe was exhibiting signs and symptoms consistent with COVID-
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`19, including coughing.
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`36.
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`PUBLIX knew or should have known that Jane Doe was exhibiting signs and
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`symptoms consistent with COVID-19 prior to and/or soon after her arrival for work at the store,
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`but failed to send her home or ensure that she did not present for work. PUBLIX also knew that
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`Jane Doe was not wearing a mask due to PUBLIX’s policy prohibiting personal protective
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`1 This employee’s first name is known to Plaintiff and will be provided in discovery.
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`equipment, but did not order Jane Doe to quarantine at home and did nothing to protect GERARDO
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`GUTIERREZ who was working alongside her.
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`37.
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`Shortly thereafter, Jane Doe tested positive for COVID-19, which was reported to
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`PUBLIX.
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`38.
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`On April 2, 2020, PUBLIX sent GERARDO GUTIERREZ home from work and
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`told him to self-isolate based upon his contact with Jane Doe. He complied, but it was too little,
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`too late.
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`39.
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`Not surprisingly, on April 6, 2020, GERARDO GUTIERREZ, like Jane Doe, began
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`experiencing a cough and fever. He called his health care provider and made an appointment for
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`the following day.
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`40.
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`On April 7, 2020 GERARDO GUTIERREZ continued to experience a fever and
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`was tested for COVID-19. The test came back positive. GERARDO GUTIERREZ became yet
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`another COVID-19 casualty that PUBLIX knew and expected when it continuously enforced its
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`prohibition on personal protective equipment. It was not a question of if, but when this would
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`happen to him.
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`41.
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`On or about April 10, 2020 GERARDO GUTIERREZ was hospitalized due to
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`complications caused by COVID-19.
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`42.
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`On April 28, 2020, GERARDO GUTIERREZ’s physicians notified his family that
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`a priest was being called to read GERARDO GUTIERREZ his last rights. Family and friends
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`gathered by Zoom to say their goodbyes, unable to hold his hand or give him one last hug. Later
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`that day, GERARDO GUTIERREZ died as a result of complications caused by COVID-19.
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`43.
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`As a direct and proximate result of GERARDO GUTIERREZ’s death the Plaintiff
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`brings this action on behalf of the following:
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`a. On behalf of Ariane Gutierrez, the decedent’s surviving daughter, the Plaintiff
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`seeks damages for lost support and services due to her father’s death, the value of
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`lost parental companionship, instruction and guidance and mental pain and
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`suffering from the date of his death. These losses are either permanent or
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`continuing in nature and Ariane has suffered these losses in the past and will suffer
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`these losses in the future.
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`b. On behalf of Gerardo Gutierrez, the decedent’s surviving son, the Plaintiff seeks
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`damages for lost support and services due to his father’s death, the value of lost
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`parental companionship, instruction and guidance and mental pain and suffering
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`from the date of his death. These losses are either permanent or continuing in nature
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`and Gerardo has suffered these losses in the past and will suffer these losses in the
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`future.
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`c. On behalf of Rene Gutierrez, the decedent’s surviving son, the Plaintiff seeks
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`damages for lost support and services due to his father’s death, the value of lost
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`parental companionship, instruction and guidance and mental pain and suffering
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`from the date of his death. These losses are either permanent or continuing in nature
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`and Rene has suffered these losses in the past and will suffer these losses in the
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`future.
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`d. On behalf of Jerryana Gutierrez, the decedent’s surviving daughter, the Plaintiff
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`seeks damages for lost support and services due to her father’s death, the value of
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`lost parental companionship, instruction and guidance and mental pain and
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`suffering from the date of his death. These losses are either permanent or
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`continuing in nature and Jerryana has suffered these losses in the past and will
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`suffer these losses in the future.
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`e. On behalf of the Estate of GERARDO GUTIERREZ, the Plaintiff seeks damages
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`for loss of prospective net accumulations which might have been reasonably
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`expected but for his wrongful death.
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`f. Medical and funeral expenses resulting from
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`the death of GERARDO
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`GUTIERREZ paid by survivors.
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`COUNT I
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`44.
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`Plaintiff realleges paragraph 1 – 43 as though set forth specifically herein and
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`further alleges as follows:
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`45.
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`PUBLIX was the employer of GERARDO GUTIERREZ, and owner of the store
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`where he was employed.
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`46.
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`PUBLIX knew and/or had been warned of the dangers posed by COVID-19,
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`particularly as it pertained to grocery workers and older employees like GERARDO GUTIERREZ.
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`47.
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`PUBLIX knew and/or had been warned that employees in its deli department,
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`including GERARDO GUTIERREZ and Jane Doe would be working in close proximity to one
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`another and unable to exercise any meaningful social distancing.
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`48.
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`PUBLIX knew and/or had been warned that if employees, such as Jane Doe and
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`GERARDO GUTIERREZ, were prohibited from wearing masks it would render them much more
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`susceptible to becoming infected with COVID-19 and/or spreading COVID-19 to others,
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`particularly where the employees were working in close quarters and amongst many customers,
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`such as in the deli department where GERARDO GUTIERREZ and Jane Doe worked.
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`49.
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`PUBLIX knew and/or had been warned that older employees such as GERARDO
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`GUTIERREZ, were at increased risk for severe illness and/or death caused by COVID-19.
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`50.
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`PUBLIX knew and/or had been warned that the conditions it imposed on
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`GERARDO GUTIERREZ and his fellow employees were dangerous and would expose them to
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`the risk of death, but failed to take the necessary steps to ensure the safety of its employees and
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`customers.
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`51.
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`PUBLIX was aware that many of its employees throughout the state were becoming
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`infected with COVID-19 and that whatever steps it claimed to be taking for the safety of its
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`employees were ineffective.
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`52.
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`Through customer and employee complaints, PUBLIX had been warned that its
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`policies with respect to employee use of personal protective equipment were woefully inadequate
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`and causing employees to become sick, but failed to take timely action.
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`53.
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`PUBLIX did not take timely steps to ensure the use of personal protective
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`equipment by its employees. Instead, PUBLIX prohibited its employees from utilizing personal
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`protective equipment which put them at increased risk of contracting the virus and subsequently
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`dying.
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`54.
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`PUBLIX intentionally misrepresented and concealed the danger posed by its
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`policies, assuaging its employees, including GERARDO GUTIERREZ, to falsely believe that the
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`masks and other personal protective equipment were not necessary to protect against COVID-19
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`when, in fact, they were.
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`55.
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`PUBLIX knew that by prohibiting GERARDO GUTIERREZ from wearing a mask
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`he would be needlessly exposed to the dangers of COVID-19 and virtually certain to contract
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`COVID-19 from his infected co-worker and die.
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`56.
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`As a result of PUBLIX’s actions, GERARDO GUTIERREZ died and Plaintiff
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`suffered the damages described above.
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`COUNT II
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`57.
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`Plaintiff realleges and reavers paragraphs 1 – 43 as though set forth specifically
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`herein and further alleges as follows:
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`58.
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`PUBLIX had a duty to not knowingly expose GERARDO GUTIERREZ to
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`COVID-19 and the risk of subsequent death, just so it could continue to make money for its
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`shareholders.
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`59.
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`PUBLIX owed a duty to GERARDO GUTIERREZ to maintain its premises in a
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`reasonably safe condition. This duty included, but was not limited to, ensuring that employees
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`known or suspected to be sick with COVID-19 did not present to work or were immediately sent
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`home, and ensuring that employees were able to use personal protective equipment for their
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`protection and prevention against the spread of COVID-19.
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`60.
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`PUBLIX also had a duty to warn GERARDO GUTIERREZ of dangerous
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`conditions on its premises, including the presence of others suspected to be sick with COVID-19,
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`and to warn GERARDO GUTIERREZ of the potential for the spread of COVID-19 while he was
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`at work.
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`61.
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`PUBLIX breached its duty and was negligent in at least the following respects:
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`a. Failing to allow its employees, including GERARDO GUTIERREZ to wear
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`personal protective equipment;
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`b. Failing to ensure that its employees wore personal protective equipment while
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`working at PUBLIX;
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`c. Failing to ensure that employees who were sick did not present to work; and
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`d. Failing to ensure that employees who exhibited symptoms consistent with COVID-
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`19 were immediately sent home.
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`62.
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`As a result of PUBLIX’s actions, GERARDO GUTIERREZ contracted COVID-19
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`and died and Plaintiff suffered the damages described above.
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`WHEREFORE, the Plaintiff demands judgment against the Defendant and demands a trial
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`by jury of all issues triable as of right by a jury.
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`STEWART TILGHMAN FOX BIANCHI & CAIN, P.A.
`Attorneys for Plaintiff
`1 S.E. 3rd Avenue, Suite 3000
`Miami, Florida 33131
`Telephone (305) 358-6644
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`By: /s/Michael Levine
`MICHAEL E. LEVINE
`Florida Bar No. 107363
`mlevine@stfblaw.com
`jennifer@stfblaw.com
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`By: s/A. Dax Bello
`A. DAX BELLO
`Florida Bar No. 59881
`dbello@stfblaw.com
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`Dated: November 23, 2020
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`-13-
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