You Be the Judge!
I am working on a “slip and fall” case slated for jury trial in early November. My dear readers, I would like for you to “sit on the jury” for this trial. Please let me know what you think of my case and how I can improve the chances for a successful verdict.
On September 1, 2012, Sandra C. was walking in the buffet line at a suburban Philadelphia Casino and slipped on an oily surface. She landed on her right knee and several months later underwent total knee replacement surgery.
Sharon was injured in a casino restaurant reserved for the casino’s most valued guests (high rollers). She fell at almost exactly the same spot where at least two other of the casino’s invited guests had slipped and fallen just prior to my client’s injury.
I discovered this vital information through the miracle of the Internet. I belong to a trial lawyers’ listserv on which I share thoughts about my various cases and consult with other trial lawyers about the issues involved in our practices. When discussing this case, another trial lawyer informed me that he represented two people who had slipped and fallen at almost exactly the same spot where Sharon fell. Both incidents occurred a few months prior to my client’s injury.
I went to this lawyer’s office and viewed videos showing these falls. I intend to play them at Sharon’s jury trial. I learned that the casino provides safety mats to its employees who serve food at the buffet, but chooses not to employ these same mats for patrons in areas where it knows spills and injuries are likely to occur. It appears that the casino values appearance more than customer safety.
The casino thus far is defending this case on the issue of notice. Typically the defense in these kinds of cases is that the defendant did not know of the spill and had no opportunity to clean it up. They will suggest that it is the plaintiff’s burden to prove how long the spill was on the ground (generally an impossible thing to prove). They will argue that perhaps a customer spilled the oil just moments before this incident. The law does not require the casino to immediately clean up every spill. It is not reasonable to expect their employees to follow customers around every moment. This is the defense I must confront in order to succeed with the jury. So what does the evidence show?
I took the depositions of five different casino employees, including those who were in the Diamond Lounge that day and the head of maintenance. There is absolutely no evidence that the spill occurred just prior to the incident. There is also no evidence that a customer spilled the oil. We simply do not know how the oil got there. Casinos probably have more surveillance cameras than the White House. So why don’t we know exactly what happened?
It turns out the casino intentionally overwrote all video recordings prior to the incident, thereby preventing the parties from determining where the oil came from, who spilled it or how long it was there. We will seek a “spoliation charge” requesting that the judge instruct the jury that the fact the casino overwrote the video is evidence that this video would have shown the casino was to blame for the presence of the oil on the ground.
The video of what occurred after Sharon fell was not overwritten. It shows four or five employees per minute walking by the spill area, with none attending to the wet floor. This will help me prove they should have known of the spill. The video also shows an employee cleaning up the area where Sharon fell. That area appears to be at least 10 feet long by 5 feet wide. This employee testified that she cleaned up oil and water over this area. That is a rather large area, one that demands attention. And so, I will argue to the jury that the casino should have identified the spill long enough in advance of the incident to have cleaned it up. I will also argue that by failing to provide safety mats, the casino created a dangerous situation that lead to Sharon’s injury. The casino had the duty to provide a safe eating environment for its guests. I will argue that it failed in its duty.
So you be the jury. What would your verdict be and why?