General Liability

By Carol Vanderwoude, Esq. (215-575-2643 or cavanderwoude@mdwcg.com)

The Appellate Court Held That A Plaintiff May Not Avoid Summary Judgment By Taking A Position Contrary To The One He Or She Has Taken In Prior Sworn Testimony.
Spatz v. Embassy Home Care, Inc., 2009 Fla. App. LEXIS 3177 (Fla. 4th DCA)(not final until disposition of timely filed motion for rehearing)

The plaintiff alleged in her complaint that she tripped and fell when her foot got caught on a loose and unsecured mat that was partially covering a carpeted floor. At her deposition she testified that she tripped and fell on a large unsecured rug that had a different pattern than the underlying carpet. The plaintiff also admitted that she had regularly visited the facility. The defendant moved for summary judgment arguing the alleged defect was open and obvious. The plaintiff filed an untimely answer asserting a new theory as to the cause of the fall: namely, an area of worn carpet in front of the door. The trial court granted summary judgment in favor of the defendant. The decision was affirmed on appeal. The appellate court held that a plaintiff may not avoid summary judgment by taking a position contrary to the one he or she has taken in prior sworn testimony and that a plaintiff is bound by her deposition testimony.

Court On Appeal Affirmed Trial Court's Grant Of Summary Judgment In Favor Of Defendant In Slip And Fall Accident Holding That Trial Court Did Not Error In Precluding An Incident Report And Witness Statements And That Plaintiff's Claim Nonetheless Failed As A Matter Of Law Because She Could Not Identify The Cause Of Her Fall.
Koop v. Speedway SuperAmerica, LLC, 2009 Ohio 1734, 2009 Ohio App. LEXIS 1469 (2009)

The plaintiff tripped and fell in the defendant's store and alleged the store negligently cleaned up a coffee spill that caused her to fall. The trial court granted the defendant's motion for summary judgment. On appeal, the plaintiff claimed that the trial court erred in precluding an incident report and witness statement, both of which allegedly related to her fall. The appellate court affirmed the trial court's decision and held that the incident report was hearsay, not subject to a hearsay exception and, thus, inadmissible evidence for summary judgment purposes. As for the witness statement, the appellate court held that it had not been properly certified or authenticated and was also inadmissible evidence for summary judgment purposes. In any event, the court held that the plaintiff could only speculate as to the cause of her fall and, thus, could not make out a prima facie case against the defendant. The plaintiff admitted that she did not know what caused her to fall, but merely assumed it was related to the clean up of the coffee spill.

Following Remand In Slip And Fall Case, Court On Appeal Reversed The Judgment Of The Trial Court In Favor Of Defendant Due To Plaintiff's Lack Of Expert Testimony Because The Trial Court Abused Its Discretion In Relying On R.C. § 2743.43 To Preclude Plaintiff's Expert In So Far As § 2743.43 Was Only Applicable To Medical Malpractice Actions.
Ray v. Ramada Inn North, 2009 Ohio 1278, 2009 Ohio App. LEXIS 1088 (2009)

The plaintiff slipped and fell in the defendant hotel and suffered injuries. He filed suit, which initially resulted in a grant of summary judgment against him. On appeal, that ruling was reversed, and the matter was remanded. Upon remand, a trial date was set. The plaintiff sought a continuance because his medical expert's license was suspended. He also sought a ruling on the admissibility of the expert's testimony. The trial court noted that the medical expert's license was valid when he treated the plaintiff. However, it relied on R.C. § 2743.43 in determining that the expert could not testify while his medical license was suspended. The trial court also denied the plaintiff's motion for a continuance. A stipulated directed verdict was entered against the plaintiff due to his lack of expert testimony. On appeal, the court found that the trial court abused its discretion in relying on § 2743.43 as that was only applicable in medical malpractice actions. As the focus of an expert's inquiry was different in a slip and fall action, the trial court should have determined whether the plaintiff's expert was qualified to testify under Evid. R. 702. The issue of the continuance was rendered moot, and the court reversed the judgment of the trial court and remanded the matter for further proceedings.

Court Granted Summary Judgment In Favor Or Defendant Store Because Plaintiff Failed To Prove That Defendant Had Constructive Notice Of Bubble Bath Spilled On The Floor.
Hower v. Wal-mart Stores, Inc., 2009 U.S. Dist. LEXIS 51557 (E.D. Pa. June 16, 2009)

The plaintiff slipped on a liquid substance, bubble bath that was on the floor. She did not see the liquid until after the fall. The evidence showed that the floors were inspected in the morning. The evidence was unclear as to whether the floor was inspected after the initial inspection in the morning. The defendant moved for summary judgment. The court granted the motion and, in so doing, noted that despite the number of customers in the store, "there were no footprints, shopping cart marks, tracks or slip marks in the liquid" to show that the condition existed for such a length of time that the storeowner, in the exercise of reasonable care, should have been aware of it.