Day on Torts
Where a premises liability plaintiff produced photographs showing possibly damp conditions around a gas pump where she fell, testified that the EMTs who arrived to help her slipped, and relied on an incident report stating that the store was “not for sure if it was slick from oil or gas,” plaintiff had shown that there were genuine issues of material fact and summary judgment for defendant was reversed.
In Wilson v. Weigel Stores, Inc., No. E2019-00605-COA-R3-CV (Tenn. Cr. App. May 19, 2020), plaintiff was fueling her car at defendant convenience store. As she stepped towards her car to get trash out, she slipped and fell. Two EMTs came to help plaintiff, and the manager at the store took photos of the area, completed an incident report, and wrote down another customer’s contact information who had witnessed the incident.
Plaintiff filed this premises liability case, and plaintiff, the EMTs, the store manager, and an HR representative from defendant were deposed. Plaintiff testified that her foot slipped, though she admitted that “she did not see any oil, gas, or spills before or after her fall…” Plaintiff also claimed that the two EMTs “both slipped and almost fell while tending to her.”
The EMTs testified that it had been raining on the day of the fall, and that they “laid a sheet down to roll Plaintiff over because there was water from where the vehicles had dripped and stuff.” Both EMTs stated that they “did not see any oil or spilled gasoline in the location where plaintiff fell,” but one elaborated that a blanket was laid down because “there was oil just from where cars had pulled in and out[.]”
The store manager testified that another employee “had just come inside from cleaning the gas pumps and filling the water, paper towels, and windshield washer fluid.” She explained that the first incident report, which contained the witness’s contact information, was picked up by a district manager but then lost by defendant. The store manager then created a second incident report, which did not have the witness information. During a phone call with plaintiff, another employee created a third incident report, which stated: “Pumping gas, slipped and fell, not for sure if it was slick from oil or gas.” In addition to the information about the reports, the store manager testified that the fall was captured on defendant’s surveillance videos, and that she and other employees watched the video, but that defendant “lost the video due to an alleged power surge and hard drive failure within 72 hours of Plaintiff’s fall.”
Defendant moved for summary judgment based on plaintiff’s inability to identify the cause of her fall, and the trial court granted the motion. Further, the trial court denied plaintiff’s request for an inference of negligence against defendant based on the loss of two critical pieces of evidence—the video and the witness contact information. The trial court ruled that “neither loss was intentional or for the purpose of concealing evidence” and that “plaintiff had not suffered significant prejudice as a result of the losses of evidence.” On appeal, summary judgment was reversed.
The Court first determined that “Plaintiff offered proof to establish that a question remained as to whether an injury-causing condition existed on [defendant’s] property.” The Court pointed to the photographs showing that the ground was potentially damp, as well as plaintiff’s testimony about the EMTs slipping. The Court also took into account the third version of the accident report. The Court held: “These factual disputes bear directly on the question of whether [defendant] caused or created any injury-causing condition or had actual or constructive notice of any such condition before plaintiff fell on the premises.” The Court ruled that summary judgment should not have been granted, but specifically stated that it was “express[ing] no opinion as to whether a condition actually existed.”
The Court also addressed plaintiff’s argument that “the trial court should have imposed an inference of negligence due to [defendant’s] spoliation of evidence.” The Court noted that the trial court has discretion to impose sanctions and that review of its decision is subject to an abuse of discretion standard. While it ruled that it would “not disturb the trial court’s ruling not to impose an inference of negligence,” it did state that “at trial, Plaintiff should be permitted to testify broadly about her interaction with the missing witness, including the content of their conversation.”
Summary judgment was thus reversed and the case was remanded.
The outcome of this premises liability appeal was highly fact specific. Plaintiffs who cannot identify the reason for their fall do not often get summary judgment reversals on appeal.
NOTE: the opinion in this case was released four months after oral argument.