Articles Posted in Slip and Fall

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, Save Mart, Walmart, or Whole Foods.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

Memorandum of Points and Authorities In Support of Defendant Safeway Inc.’s Motion for Summary Judgment
INTRODUCTION

This action arises out of a slip and fall incident on March 24,2009, between 8:40 a.m. and 8:45 a.m., in the dairy department of a Safeway supermarket located in Sacramento, California. Defendant does not dispute that plaintiff fell. However, plaintiff cannot establish that there was anything on the floor for a sufficient period of time to provide notice to Safeway of any dangerous condition. Plaintiff concedes that she has no information as to how long any substance may have been present on the floor prior to her fall or how it came to be on the floor.

Safeway performed routine inspections of the floor where plaintiff fell prior to the fall. The floor was last inspected at 8:33 a.m., just 7 to 12 minutes prior to plaintiff’s fall.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

Even if the loss of the videotape was only negligent, CACI 203 (Party Having Power to Produce Better Evidence) instructs that the jury may draw an adverse inference against XYZ Market: You may consider the ability of each party to provide evidence. If a party provided weaker evidence when it could have provided stronger evidence, you may distrust the weaker evidence. This is based on Evidence Code section 412, which, provides: If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

There is videotape capability in the area where Ms. Black fell. XYZ Market insists that there is not and has never been any video taken on the incident date showing the area of Ms. Black’s fall. In direct contradiction, Charles Black has testified under oath that he was told by both Tom Miller and Kim Li of XYZ Market’s Risk Management Department that videotape of the slip and fall scene did in fact exist, and that XYZ Market was reviewing the tape in order to investigate Maggie Black’s accident. This presents an issue of fact whether XYZ Market did either lose or destroy the videotape. If it did, then the jury may draw an adverse inference that the videotape would have shown conditions detrimental to XYZ Market’s defense.

This Court should therefore deny the present motion on the additional triable issue of material fact concerning spoliation of evidence.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

Spoliation of Evidence/Adverse Inference

The California Supreme Court, in finding that there is not an independent tort of spoliation of evidence, stated, The intentional destruction of evidence is a grave affront to the cause of justice and deserves our unqualified condemnation. There are, however, existing and effective nontort remedies for this problem. Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 4. The Supreme Court found that the adverse inference a jury may draw against the spoliating party is an adequate safeguard: [In] Evidence Code section 413, this inference is as follows:

In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party’s … willful suppression of evidence relating thereto … The standard California jury instructions include an instruction on this inference as well: If you find that a party willfully suppressed evidence in order to prevent its being presented in this trial, you may consider that fact in determining what inferences to draw from the evidence. (BAJI No. 2.03 (8th ed. 1994).) Id. At 12. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

The evidence shows that XYZ Market had repeated problems with employees logging their sweeps before they actually did them.

There is also evidence, from the testimony of Maggie Black and independent witness Burns, that Ms. Black did in fact slip on something wet. There is evidence from the testimony of Maggie and Charles Black that there was a substantial amount of liquid on the floor enough so that her pants were wet on the buttock and both legs. The testimony of various witnesses, including Tom Miller and Ms. Black, establishes that she sat on the floor where she fell while awaiting the ambulance. This shows how the liquid had time to soak into her jeans. A substantial amount of liquid on the floor should have been noticed by the XYZ Market employees working nearby. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Under these facts, a reasonable jury could conclude:

1) XYZ Market employees involved in re-stocking activities created the dangerous condition on which plaintiff fell by either tracking in something wet from the back storage area or by transporting leaky product, or

2) The XYZ Market employees working in close proximity to where plaintiff fell should have seen the wet substance on the floor and cleaned it up, but were either negligent in not detecting it, or did see it but chose not to clean it up promptly. This is particularly true for the employee working the dairy case within five to six feet of the wet area.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

There are Triable Issues of Fact Whether XYZ Market Employees Either Created the Dangerous Condition, or Knew or Should Have Known About It

The key question for the Court on summary judgment is whether there are triable issues of fact for the jury to consider. Based on the evidence here, we know that 8:30 a.m. is a slow time for this store; there were very few customers present. We know from the testimony of plaintiff, and XYZ Market employees Nancy Smith and Sean Reilly that at the time of the accident there were extensive ongoing re-stocking procedures, involving one employee in the meat section ten feet away, one re-stocking the dairy case five to six feet from where plaintiff fell, and three to five employees in aisles within sight of the fall. We also know that employees were coming in and out of the double swinging doors located near the fall area. There were many boxes scattered on the floor in that area. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It is undisputed from XYZ Market’s documents and its PMK testimony that every employee has an equal responsibility to detect and correct slip and fall hazards on the floor.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

ARGUMENT
Applicable Law
CACI 1001 (Standard of Care) provides:

A person who [owns/leases/occupies/controls] property is negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition. A person who [owns/leases/occupies/controls] property must use reasonable care to discover any unsafe conditions and to repair, replace, or give adequate warning of anything that could be reasonably expected to harm others. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In deciding whether defendant used reasonable care, you may consider, among other factors, the following:
(a) The location of the property;
(b) The likelihood that someone would come on to the property in the same manner as plaintiff did;
c) The likelihood of harm;
(d) The probable seriousness of such harm;
(e) Whether defendant knew or should have known of the condition that created the risk of harm;
(f) The difficulty of protecting against the risk of such harm; [and]
(g) The extent of [name of defendant] ‘s control over the condition that created the risk of harm; [and]
(h) [Other relevant factor(s).]

The comment to CACI quotes the leading California Supreme Court cases on premises liability: The proper test to be applied to the liability of the possessor of land… is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others … Rowland v. Christian (1968) 69 Cal.2d 108, 119.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this slip and fall case and its proceedings.)

It is worth noting that situations similar to those described in this personal injury case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

THE STRINGENT SUMMARY JUDGMENT STANDARD

A motion for summary judgment shall be granted only if all the papers submitted show there is no triable issue of any material fact and that the moving party is entitled to a judgment as a matter of law. CCP § 437c, subd. c); Molko v. Holy Spirit Assn. (1988)46 Cal.3d 1092. The Molko Court stated:

Accordingly, the function of the trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves. (Walsh v. Walsh (1941) 18 Cal.2d 439, 441.) Summary judgment is a drastic measure that deprives the losing party of a trial on the merits. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35, 210 Cal.Rptr. 762.) It should therefore be used with caution, so that it does not become a substitute for trial. (Rowland v. Christian (1968) 69 Cal.2d 108, 111, 70 Cal.Rptr. 97.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The affidavits of the moving party should be strictly construed, and those of the opponent liberally construed. (Stationers Corp. v. Dun & Bradstreet (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449.) Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Slobojan v. Western Travelers Life Ins. Co. (1969) 70 Cal.2d 432,437, 74 Cal.Rptr. 895.) Molko, supra, at p. 1107. (See Part 8 of 12.)

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

In addition, Mr. Miller testified:

Q: Is this floor, as far as you’re concerned — is it something that if an employee is looking for water on the floor, you would expect him to see it and correct it?

A. Sure.

Q. If an employee is engaged in restocking activities in the area where Ms. Black fell, even if their job at that moment is to restock, if they saw water on the floor, they should clean it up,

A. Absolutely.

Mr. Miller also testified:

The store in question has 27,000 square feet of customer sales floor area. The time of plaintiff’s accident (roughly 8:45 a.m.) was a slow time for customers at the store. All employees are trained to look out for slip and trip hazards, including water. He does not know where all his employees were at the time of plaintiffs fall. Although there is videotape capability in the are where Ms. Black fell, there was no videotape. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The employee documents his inspection into the sweep log recording system after the sweep is completed. Mr. Miller saw plaintiff on the floor after her fall. He marked a “C” on the floor plan exhibit to his deposition showing where Ms. Black fell. Ms. Black was initially face down, but then sat up on the floor where she fell. She was there about 15 minutes before paramedics arrived.

The most common causes of moisture on the floor are meats and produce.

Deposition of Nancy Smith

Nancy Smith was working the dairy section. She testified as follows:

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Deposition of Store Manager Tom Miller (Designated PMK)

In response to plaintiffs’ CCP 2025 notice for corporate representative most knowledgeable about store procedures, XYZ Market produced its store manager, Tom Miller. In his deposition quoted below, Mr. Miller confirmed that every employee has an obligation to maintain a lookout for slip hazards, and clean them up when they see them:

Q. All right. Let’s talk a little bit about XYZ Market’s floor inspection or sweep policy. Is it XYZ Market’s position that safety is every employee’s responsibility?

A. Absolutely.

Q. You have a slogan, Don’t pass it by, pick it up, correct?

A. Correct.

Q. If an employee sees something on the floor such as liquid or debris, they’re supposed to pick it up immediately; is that right?

A. Attend to it as soon as they can, yes.

Q. Is liquid on a store floor a safety hazard?

A. Absolutely.

Q. Are foreign substances on the floor a safety hazard?

A. Absolutely.

Q. Does every employee have an obligation to check the floor in areas where they’re working?

A. Yes.

Mr. Miller testified further:

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

Charles Black Testimony

Charles Black was not present for the incident, but has testified that store manager Tom Miller told him that XYZ Market had video of the are where the fall occurred both before and after the incident. He told Mr. Black that the video had been sent to Kim Li, XYZ Market’s District Manager, for review. Mr. Black later talked with Kim Li who told him she had the video. Charles Black felt his wife’s pants at the Emergency Room and they were wet in the buttocks area and on both thighs. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

XYZ Market’s Policies and Procedures
Documents

XYZ Market has produced documents it claims are confidential trade secret pursuant to a agreement for protective order. Plaintiff relies on some of these documents, which are lodged herewith as separate. Chief among these are documents entitled “Customer Accident Prevention” and “Slip and Fall Prevention,” which state that each and every XYZ Market employee shares equal responsibility for detecting an correcting slip and fall hazards. Don’t pass it by, pick it up is XYZ Market’s motto in this regard. Plaintiffs are lodging XYZ Market’s claimed confidential trade secret documents pursuant to Cal. Rule of Court 2.551 (b)(3). Plaintiffs do not intend to file a motion to have the records sealed, and hereby give notice to XYZ Market that the records lodged herewith, will be placed in the public court file unless XYZ Market files a timely motion or application to seal the records.

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