On September 7, 2009, a grocery store patron named Kenya Blair visited a Brothers Food Mart to buys chips and soda. Upon entering the store, the patron passed in front of two aisles, and then went down the third aisle to the rear of the store where the drink coolers were located. She then started toward the front, proceeding down the middle aisle where the chips were located. There she slipped and fell on some fluid left on the floor by a mop, allegedly injuring her neck and back. She subsequently filed a lawsuit alleging personal injury claims against the store and its insurer in the Second Parish Court for the Parish of Jefferson.
At the time the patron entered the store, a day laborer named “Jose” was mopping the floor. He had positioned a “Wet Floor” sign in front of the display racks between the second and third aisles. The patron testified that she entered the store and immediately proceeded to the back, and she did not notice either Jose or the “Wet Floor” sign at the front of the aisles. She testified that there definitely was no “Wet Floor” sign located at the back of the store or in the middle aisle.
A manager named Tony Abdel was present at the store at the time of the accident. He testified that he saw the patron fall while behind the counter at the front of the store. He testified that the appropriate procedure for mopping the floor is to put down three “Wet Floor” signs, then sweep the floors, and then mop with a mixture of water and bleach. Further, he testified that one of the “Wet Floor” signs is supposed to be placed in the front of the store, and the other two signs are supposed to be moved to each section as it is mopped. And, he testified that all three “Wet Floor” signs were in use and properly placed at the time of the accident, including a sign in the aisle being mopped.
A cashier named Hannah Vancour was behind the front counter facing the aisles on the date of the accident. She testified that she saw a “Wet Floor” sign directly in front of her and another in the center aisle where the patron fell. Notably, however, the cashier acknowledged that she was in a personal relationship with the manager.
A videotape of the accident was introduced into evidence at trial. It showed Jose mopping the floor at the center aisle, and moving the “Wet Floor” sign at the front of the store. The videotape did not show the back of the store or the bulk of the aisles, and it did not show Jose moving any other “Wet Floor” signs or placing a “Wet Floor” sign in the center aisle. At trial, the manager admitted that there were eight to ten video cameras placed in various areas of the store. He testified that he saved only the video of the front of the store because it provided the best view of the accident.
Following trial, Judge Roy M. Cascio rendered judgment in favor of the patron plaintiff and awarded damages. The Court found that the hazard on the aisle floor created an unreasonable risk of harm and that the store failed to exercise reasonable care. Concerning the latter holding, the Court found that no “Wet Floor” sign was placed in the aisle or at the back of the store where the patron entered the middle aisle.
The store appealed to the Louisiana Fifth Circuit Court of Appeals, arguing that the trial court erred in finding the store liable and in failing to assess comparative fault to the patron. The Court of Appeals affirmed the judgment of the Trial Court. The Court reasoned that there was sufficient evidence to support the Trial Court’s holdings, including the patron’s testimony. In addition, the Court was particularly moved by the fact that the manager testified that there were eight to ten surveillance cameras in the store providing eight to ten different views of the store, yet he only retained one of those eight to ten different views. The Court noted that there is a legal presumption that evidence that a litigant fails to produce is detrimental to his case, unless the failure to produce the evidence is adequately explained. And, the Court concluded: “Surely at least one, and perhaps several of those views, would have provided a view of the ‘Wet Floor’ sign, had it been in the wet aisle. It is a fair conclusion of fact that the missing camera views were not favorable to the party which erased them.”
Take-Away: Save all your video footage from the date of an accident. While only a few minutes of footage from one or two cameras may, at first, appear to capture every relevant detail, you may discover later that other footage from those same or different cameras would have been the difference between winning and losing a case.
This article was co-authored by Chris Irwin, an associate at Irwin Fritchie Urquhart & Moore LLC.