Cindy fell on a grape at the checkout in a Ross store in Lynnwood, Washington, and injured her shoulder.
She later sued Ross for personal injury. Ross moved to dismiss. Cindy’s attorney argued that the store failed to preserve evidence by allowing a video of the fall to auto-delete after 17 days. Her attorney also submitted a declaration from an expert witness, which Ross moved to strike as conclusory and speculative.
The trial court granted the motion to strike the expert’s testimony and the motion to dismiss. The Washington Court of Appeals upheld the trial court.[1]
This case is a good illustration of how difficult personal injury cases, and slip and fall cases in particular, can be.
Ross did not dispute the qualifications of the witness as an expert. But, an expert must rely on facts and data, not mere speculation. Conclusory opinions are excluded by courts.
Also, Ross did not defend the case by arguing that the injury claimant did not fall, or that she was not in fact injured. Many people assume that if a patron in a business is injured by falling on a hazard—such as the grape in this case—then the business is liable for medical expenses and other personal injury damages. In reality, proving the business is responsible for the personal injury damages is far from a given.
The injured person must prove that the business actually knew about the hazard but failed to warn or remove it, or that the hazard was present for a such a long period that the business should have known about the hazard but failed to discover it.
The Ross employees testified that they did their regular walkthroughs the day Cindy was injured. Two employees testified that shortly before the customer she they had inspected the floor and observed no hazards.
Ross employees reviewed a store video. They testified that the video showed a small child—too short to be seen by the checkout personnel—drop the grape on the floor only moments before Cindy fell on it.
Ross knew the injured customer might pursue a claim. Ross could have easily preserved the video. Nevertheless, the dismissal was upheld in the absence of any independent evidence of negligence.
We have successfully pursued slip and fall cases, but we also turn many of them away. This case illustrates how important it can be to contact an attorney early. It is possible the outcome would have bee different if an attorney had been retained and requested the video before it auto-deleted. At the very least, there would have an argument that there was deliberate destruction of evidence.
If you have been injured in a slip and fall accident you should contact a personal injury attorney for a free case evaluation immediately.
By personal injury attorney Travis Eller
[1] Holttum v. Ross Stores, Inc., unpublished (No. 69409-0-1 December 9, 2013)