Filing # 117103075 E-Filed 11/23/2020 10:01:05 AM

IN THE CIRCUIT COURT OF THE 11TH

JUDICIAL CIRCUIT IN AND FOR
MIAMIDADE COUNTY, FLORIDA

CASE NO.
ARIANE GUTIERREZ, as Personal
Representative of the Estate of GERARDO
GUTIERREZ, deceased,

Plaintiff,
v.

PUBLIX SUPER MARKETS INC.,

Defendant.
/

COMPLAINT

COMES NOW the Plaintiff, ARIANE GUTIERREZ, as Personal Representative of the

Estate of GERARDO GUTIERREZ, deceased, and hereby sues the Defendant, PUBLIX SUPER

MARKETS, INC., and alleges as follows:

1. This is an action for damages in excess of $30,000 exclusive of interest and costs.

2. At all times material hereto, the Plaintiff was or will soon be the duly appointed

Personal Representative of the Estate of GERARDO GUTIERREZ, deceased.

3. At all times material hereto, the Plaintiff and GERARDO GUTIERREZ are and/or

were residents of Miami-Dade County, Florida.

4. At all times material hereto, the Defendant, PUBLIX SUPER MARKETS, INC.,

(“PUBLIX”) was and is a Florida corporation doing business in the State of Florida and was the

employer of GERARDO GUTIERREZ, deceased.

 5. At all times material hereto, GERARDO GUTIERREZ, age 70, worked in the deli

department of the PUBLIX store located at 1920 West Avenue in Miami Beach, Florida.

6. On January 17, 2020, the Centers for Disease Control and Prevention (“CDC”)

announced enhanced screenings for those traveling to the United States in order to detect

symptoms associated with the 2019 novel coronavirus (“COVID-19”), which was of increasing

concern at that time.

7. COVID-19 is a dangerous, contagious respiratory disease caused by severe acute

respiratory syndrome coronavirus 2 (SARS-CoV-2), to which the general public can be easily

exposed and it is not characteristic of or peculiar to any specific trade, occupation, process, or

employment.

8. On January 30, 2020, the World Health Organization (“WHO”) declared a "public

health emergency of international concern" because of the outbreak of COVID-19.

9. On January 31, 2020, United States Health and Human Services Secretary Alex M.

Azar II declared a public health emergency indicating that COVID-19 posed a serious public

health threat here in the United States.

10. On March 1, 2020, Florida reported its first confirmed case of COVID-19.

11. On March 1, 2020, Florida Governor Ron DeSantis issued Executive Order 20-51

directing the Florida Department of Health to issue a Public Health Emergency. That same day,

the Florida Surgeon General and State Health Officer declared a Public Health Emergency

existed in the State of Florida as a result of COVID-19.

12. On March 9, 2020, Florida Governor Ron DeSantis issued Executive Order 20-52

officially declaring a State of Emergency as a result of COVID-19.

13. On March 12, 2020, the President of the United States declared that the COVID-19

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 were growing every day.

14. On March 16, 2020, the Centers for Disease Control and Prevention (“CDC”) issued

guidance recommending that people adopt social-distancing measures to reduce their exposure to

the deadly COVID-19 virus. These measures were extended on March 29, 2020, when the

number of known deaths involving COVID-19 climbed to 3,169.

15. On March 24, 2020, in light of the deadly nature of COVID-19 and its respiratory

transmission, Governor DeSantis issued Executive Order 20-83 directing the State Surgeon

General and State Health Officer to issue a public health advisory urging the public to avoid

social gatherings of 10 or more people and urging those who could work remotely to do so.

16. By late March 2020, COVID-19 had become a national crisis not seen in the past

hundred years. Infection and death rates were growing daily, there was no vaccine to stop the

transmission and there was no effective treatment. Life as we had known it had totally changed

and people were scared. It is against this backdrop that PUBLIX’s actions must be scrutinized.

17. According to PUBLIX’s website, it “cares about the health of [its] associates and

customers.” On or about March 25, 2020, PUBLIX uploaded to its website a statement from its

CEO, Todd Jones stating: “PUBLIX has remained in close contact with the Centers for Disease

Control and Prevention (CDC) and other federal and state agencies since January to monitor

developments and updated guidance on coronavirus (COVID-19).” According to Mr. Jones,

PUBLIX would “continue to focus on keeping [its] associates healthy—and [its] stores open and

stocked—to serve and support all our communities.” Mr. Jones further stated that PUBLIX was

working “around the clock” to ensure its stores were adequately sanitized.

18. In reality, PUBLIX’s conduct at that time stood in stark contrast to Mr. Jones’

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

equipment of any type despite the rapidly escalating COVID-19 virus.

19. Incredibly, at least one PUBLIX employee was reportedly told, “You can either work

without a mask or go home.” Making matters worse, another employee reported, “We have been

instructed to not wear gloves or masks in case we ‘incite panic’ on the floor. There is

disciplinary action if we refuse to remove them.”

20. On March 19, 2020, just six days prior to Mr. Jones’ statement, the Occupational

Safety and Health Administration (“OSHA”) received a complaint stating that the PUBLIX store

located at 14601 South Dixie Highway in Palmetto Bay, Florida was “refusing to let employees

wear gloves or masks because of corporate claiming it will scare the customers . . . .”

21. The next day, on March 20, 2020, OSHA received another complaint regarding the

PUBLIX store located at 2270 SW 27 th Avenue, Miami, Florida. A customer reported that

employees at the PUBLIX were not permitted to wear gloves or masks despite the fact that there

were over 100 reported cases of COVID-19 in Florida at that time.

22. On March 21, 2020, OSHA received yet another complaint about PUBLIX. The caller

ominously described the complaint as “life threatening.” According to the caller—an employee

of a PUBLIX store in Destin, Florida—PUBLIX had “ordered [employees] not to wear masks.”

(emphasis added).

23. On March 23, 2020, PUBLIX was notified by OSHA that it had received notice of

alleged workplace hazards at a PUBLIX store in Tallahassee, Florida. Specifically, OSHA had

been informed that PUBLIX was not providing employees with personal protective equipment

despite the mounting COVID-19 crisis. Even more concerning, an employee reported that

PUBLIX associates were “barred from wearing [gloves].” According to notes taken by the

OSHA representative, PUBLIX, consistent with its callous disregard for the safety of its

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employees, declined the employee’s request for a mask and gloves because it “didn’t want

customers to panic.”

24. On March 24, 2020, PUBLIX was notified by OSHA that it had received another

notice of alleged workplace hazards at a PUBLIX store in Sandestin, Florida. In that report,

OSHA had been informed that PUBLIX “[e]mployees are not allowed to wear their personally

provided PPE in fear of contracting the COVID-19 virus.” The employee reported that PUBLIX

“prohibited [employees] from wearing face masks to protect themselves from breathing in the

coronavirus from the hundreds of customers who com[e] to the store every day. The store

provides no such protection for them.”

25. In an e-mail dated April 3, 2020, Paul Coil, PUBLIX’s Senior Manager for safety,

admitted that “PUBLIX previously prohibited associates from voluntarily wearing gloves or

masks.” Mr. Coil explained that PUBLIX had imposed this prohibition allegedly based upon

CDC guidance asking people to refrain from using masks so that the supply chain could be

preserved for health care workers. At best, this statement ignores the fact that many of

PUBLIX’s employees could not socially distance in compliance with the CDC guidelines issued

in March of 2020. At worst, it was an after-the-fact excuse to cover up what PUBLIX’s

employees were told by management: you cannot wear the masks, even if you bring your own,

because it scares off the customers. PUBLIX’s concerns about losing business, however,

substantially increased the risk of COVID-19 exposure to each of its employees and in particular,

GERARDO GUTIERREZ.

26. In his April 3, 2020 e-mail, Mr. Coil stated that PUBLIX would only “allow select

associates who are not normally required to wear a mask or gloves the option to [wear] these

items for their personal comfort.” Meanwhile, just two days earlier, Mr. Coil had written to

OSHA’s Jacksonville office that PUBLIX would begin allowing associates to wear masks/gloves

“on a voluntary basis (where it does not impact food safety guidelines).”

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 27. Despite its public statements, PUBLIX lagged behind its competitors every step of the

way, knowingly endangering its employees and customers by exposing them to the very real risk

that they would contract COVID-19 and die.

28. By contrast, several other large grocery stores at the time were allowing and

encouraging employees to wear masks and other personal protective equipment, checking

employees’ temperatures, and limiting the number of customers who could enter their store at

one time. PUBLIX, however, did none of that at that time.

29. As COVID-19 was spreading throughout Florida, unlike its competitors, PUBLIX

prohibited employees, including the decedent, GERARDO GUTIERREZ, from wearing masks

and gloves.

30. GERARDO GUTIERREZ, was told by PUBLIX that he could not wear a mask

despite the fact that he wanted to wear one, but he continued to go to work each day because he

believed PUBLIX’s statements that it was taking all measures necessary to keep him safe.

31. PUBLIX, however, minimized, downplayed, misrepresented, and otherwise

concealed the risk posed to its employees by its prohibition on masks and other personal

protective equipment. PUBLIX was more concerned with protecting its sales and profits

fabricating the excuse that customers would be “turned off” by employees wearing masks.

PUBLIX intentionally chose to protect sales over the health and well-being of its employees and

customers knowing that employees, especially a 70-year employee working next to a sick co-

worker, such as GERARDO GUTIERREZ, would be exposed to COVID-19 and die.

32. PUBLIX’s conduct served to provide false comfort to GERARDO GUTIERREZ that

masks would not prove effective in preventing the spread of COVID-19 when it knew that just

the opposite was true.

33. In March 2020, PUBLIX employees across the state were becoming infected with

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

masks despite their close proximity to other employees, customers, and suppliers who were

undoubtedly transmitters of the virus.

34. On March 27, 2020 and March 28, 2020, GERARDO GUTIERREZ worked in the

deli department of the PUBLIX supermarket located at 1920 West Avenue, Miami Beach,

Florida alongside a co-worker, “Jane Doe”. 1

35. At that time, Jane Doe was exhibiting signs and symptoms consistent with COVID-

19, including coughing.

36. PUBLIX knew or should have known that Jane Doe was exhibiting signs and

symptoms consistent with COVID-19 prior to and/or soon after her arrival for work at the store,

but failed to send her home or ensure that she did not present for work. PUBLIX also knew that

Jane Doe was not wearing a mask due to PUBLIX’s policy prohibiting personal protective

equipment, but did not order Jane Doe to quarantine at home and did nothing to protect

GERARDO GUTIERREZ who was working alongside her.

37. Shortly thereafter, Jane Doe tested positive for COVID-19, which was reported to

PUBLIX.

38. On April 2, 2020, PUBLIX sent GERARDO GUTIERREZ home from work and

told him to self-isolate based upon his contact with Jane Doe. He complied, but it was too little,

too late.

39. Not surprisingly, on April 6, 2020, GERARDO GUTIERREZ, like Jane Doe, began

experiencing a cough and fever. He called his health care provider and made an appointment for

the following day.

1 This employee’s first name is known to Plaintiff and will be provided in discovery.

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 40. On April 7, 2020 GERARDO GUTIERREZ continued to experience a fever and was

tested for COVID-19. The test came back positive. GERARDO GUTIERREZ became yet

another COVID-19 casualty that PUBLIX knew and expected when it continuously enforced its

prohibition on personal protective equipment. It was not a question of if, but when this would

happen to him.

41. On or about April 10, 2020 GERARDO GUTIERREZ was hospitalized due to

complications caused by COVID-19.

42. On April 28, 2020, GERARDO GUTIERREZ’s physicians notified his family that a

priest was being called to read GERARDO GUTIERREZ his last rights. Family and friends

gathered by Zoom to say their goodbyes, unable to hold his hand or give him one last hug. Later

that day, GERARDO GUTIERREZ died as a result of complications caused by COVID-19.

43. As a direct and proximate result of GERARDO GUTIERREZ’s death the Plaintiff

brings this action on behalf of the following:

a. On behalf of Ariane Gutierrez, the decedent’s surviving daughter, the Plaintiff

seeks damages for lost support and services due to her father’s death, the value of

lost parental companionship, instruction and guidance and mental pain and

suffering from the date of his death. These losses are either permanent or

continuing in nature and Ariane has suffered these losses in the past and will

suffer these losses in the future.

b. On behalf of Gerardo Gutierrez, the decedent’s surviving son, the Plaintiff seeks

damages for lost support and services due to his father’s death, the value of lost

parental companionship, instruction and guidance and mental pain and suffering

from the date of his death. These losses are either permanent or continuing in

nature and Gerardo has suffered these losses in the past and will suffer these

losses in the future.

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 c. On behalf of Rene Gutierrez, the decedent’s surviving son, the Plaintiff seeks

damages for lost support and services due to his father’s death, the value of lost

parental companionship, instruction and guidance and mental pain and suffering

from the date of his death. These losses are either permanent or continuing in

nature and Rene has suffered these losses in the past and will suffer these losses in

the future.

d. On behalf of Jerryana Gutierrez, the decedent’s surviving daughter, the Plaintiff

seeks damages for lost support and services due to her father’s death, the value of

lost parental companionship, instruction and guidance and mental pain and

suffering from the date of his death. These losses are either permanent or

continuing in nature and Jerryana has suffered these losses in the past and will

suffer these losses in the future.

e. On behalf of the Estate of GERARDO GUTIERREZ, the Plaintiff seeks damages

for loss of prospective net accumulations which might have been reasonably

expected but for his wrongful death.

f. Medical and funeral expenses resulting from the death of GERARDO

GUTIERREZ paid by survivors.

COUNT I

44. Plaintiff realleges paragraph 1 – 43 as though set forth specifically herein and further

alleges as follows:

45. PUBLIX was the employer of GERARDO GUTIERREZ, and owner of the store

where he was employed.

46. PUBLIX knew and/or had been warned of the dangers posed by COVID-19,

particularly as it pertained to grocery workers and older employees like GERARDO

GUTIERREZ.

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 47. PUBLIX knew and/or had been warned that employees in its deli department,

including GERARDO GUTIERREZ and Jane Doe would be working in close proximity to one

another and unable to exercise any meaningful social distancing.

48. PUBLIX knew and/or had been warned that if employees, such as Jane Doe and

GERARDO GUTIERREZ, were prohibited from wearing masks it would render them much

more susceptible to becoming infected with COVID-19 and/or spreading COVID-19 to others,

particularly where the employees were working in close quarters and amongst many customers,

such as in the deli department where GERARDO GUTIERREZ and Jane Doe worked.

49. PUBLIX knew and/or had been warned that older employees such as GERARDO

GUTIERREZ, were at increased risk for severe illness and/or death caused by COVID-19.

50. PUBLIX knew and/or had been warned that the conditions it imposed on GERARDO

GUTIERREZ and his fellow employees were dangerous and would expose them to the risk of

death, but failed to take the necessary steps to ensure the safety of its employees and customers.

51. PUBLIX was aware that many of its employees throughout the state were becoming

infected with COVID-19 and that whatever steps it claimed to be taking for the safety of its

employees were ineffective.

52. Through customer and employee complaints, PUBLIX had been warned that its

policies with respect to employee use of personal protective equipment were woefully inadequate

and causing employees to become sick, but failed to take timely action.

53. PUBLIX did not take timely steps to ensure the use of personal protective equipment

by its employees. Instead, PUBLIX prohibited its employees from utilizing personal protective

equipment which put them at increased risk of contracting the virus and subsequently dying.

54. PUBLIX intentionally misrepresented and concealed the danger posed by its policies,

assuaging its employees, including GERARDO GUTIERREZ, to falsely believe that the masks

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and other personal protective equipment were not necessary to protect against COVID-19 when,

in fact, they were.

55. PUBLIX knew that by prohibiting GERARDO GUTIERREZ from wearing a mask he

would be needlessly exposed to the dangers of COVID-19 and virtually certain to contract

COVID-19 from his infected co-worker and die.

56. As a result of PUBLIX’s actions, GERARDO GUTIERREZ died and Plaintiff

suffered the damages described above.

COUNT II

57. Plaintiff realleges and reavers paragraphs 1 – 43 as though set forth specifically

herein and further alleges as follows:

58. PUBLIX had a duty to not knowingly expose GERARDO GUTIERREZ to

COVID-19 and the risk of subsequent death, just so it could continue to make money for its

shareholders.

59. PUBLIX owed a duty to GERARDO GUTIERREZ to maintain its premises in a

reasonably safe condition. This duty included, but was not limited to, ensuring that employees

known or suspected to be sick with COVID-19 did not present to work or were immediately sent

home, and ensuring that employees were able to use personal protective equipment for their

protection and prevention against the spread of COVID-19.

60. PUBLIX also had a duty to warn GERARDO GUTIERREZ of dangerous

conditions on its premises, including the presence of others suspected to be sick with COVID-19,

and to warn GERARDO GUTIERREZ of the potential for the spread of COVID-19 while he was

at work.

61. PUBLIX breached its duty and was negligent in at least the following respects:

a. Failing to allow its employees, including GERARDO GUTIERREZ to wear

personal protective equipment;

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 b. Failing to ensure that its employees wore personal protective equipment while

working at PUBLIX;

c. Failing to ensure that employees who were sick did not present to work; and
d. Failing to ensure that employees who exhibited symptoms consistent with
COVID-

19 were immediately sent home.

62. As a result of PUBLIX’s actions, GERARDO GUTIERREZ contracted COVID-19

and died and Plaintiff suffered the damages described above.

WHEREFORE, the Plaintiff demands judgment against the Defendant and demands a

trial by jury of all issues triable as of right by a jury.

STEWART TILGHMAN FOX BIANCHI & CAIN, P.A.

Attorneys for Plaintiff
1 S.E. 3rd Avenue, Suite 3000
Miami, Florida 33131
Telephone (305) 358-6644

By: /s/Michael Levine

MICHAEL E. LEVINE
Florida Bar No. 107363
mlevine@stfblaw.com
jennifer@stfblaw.com

By: s/A. Dax Bello

A. DAX BELLO
Florida Bar No. 59881
dbello@stfblaw.com

Dated: November 23, 2020

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