Ross Dress for Less owns DD’s Discounts, which is why I grouped them together for this article. Let’s look at real cases against Ross.
These aren’t my cases.
Shopper Slips on Dirty Coffee Liquid; Case Allowed to Continue to Trial
In Sagona v. Ross Dress For Dress, Inc., Dist. Court, SD Florida 2017, as shopper and her husband went to a Ross Store. She slipped and fell in an aisle.
She said that she fell and struck her head, neck, back, buttocks, and arm. She did not see what she fell on.
Her husband saw coffee and the back of her pants were wet. She had no knowledge about how long the coffee was on the floor before she fell.
There were no signs in the area indicating that the floor was wet. She had no idea if Ross knew about the coffee before her fall.
Husband Says Coffee Was Dirty, Had Coffee Footprints and Floor Had Coffee Residue
Her husband said that after she fell, he went to help her and smelled and saw coffee. The coffee looked like it had been on the floor for “a while.”
The coffee was “dirty” and there was coffee “residue” on the floor in the area around where the coffee spill.
There were also coffee footprints in the area. The court said that coffee may have been there for a sufficient length of time that Ross should have known about it.
Her case was allowed to continue to trial. The judge was Patricia Seitz.
Shopper Slips and Falls on Plastic in Ross Store; Case Dismissed
In Hill v. Ross Dress for Less, Inc., No. 12-23368-CIV, 2013 WL 6190435 (S.D. Fla. Nov. 26, 2013), Shelly Hill sued Ross Dress for Less.
Shelly Hill’s sued Ross Dress for Less for negligence. She claimed that she slipped and fell on a loose piece of plastic in Ross’s store and was injured.
Ross moved for moved for summary judgment because she cannot establish that Ross knew or should have known about the loose plastic before Plaintiff’s (the person who was hurt) fall.
Hill also seeks an adverse inference jury instruction based on Ross’s destruction of store surveillance video footage.
She was not entitled to an adverse inference because she did not show that Ross destroyed the store surveillance video in bad faith or that it would have shown when or how the plastic ended up on the floor.
Without the adverse inference and taking all the record evidence in the light most favorable to the shopper, no genuine issue of material fact exists as to when Ross last inspected the area where she fell.
Thus, she cannot establish that Ross knew or should have known about a hazardous condition in its store. Ross was entitled to summary judgment. This means that Ross won the case.
Undisputed Material Facts
On March 16, 2012, Plaintiff was shopping at DD’s Discounts, a store owned by Ross, when she slipped on a loose piece of plastic and fell. While she does not remember where she was when she fell, Ross states, and she does not disagree, that she fell in the “home section” near the rug merchandise.
Ross’s employee Bianca Deler (Deler) worked in the home section. She had inspected the area where Plaintiff fell approximately ten minutes prior to Plaintiff’s fall and did not see anything on the floor that day.
Deler testified that when she is working, she walks around the home department every ten minutes and when she is doing this, she is looking for things on the floor. If Deler finds something on the floor, she cleans it up.
Deler testified that Ross instructs its employees to always be on the look out for items on the floor and to pick up any items that an employee sees on the floor. Other employees also walk through the home section regularly because it is on the way to the break-room.
Charles Lewis, another of Ross’s employees, also testified that he had been through the area where Plaintiff fell about ten to fifteen minutes before Plaintiff’s fall. Lewis testified he had been in the area escorting a guard who was bringing cash into the store.
However, the store manager testified that a manager, not Lewis, would have accompanied the guard. The store manager testified that there is not a certain number of times that an employee is supposed to go through their area.
However, the manager would have expected Deler to walk through her department at least once an hour. The manager has never instructed employees to walk through their area every 20 to 25 minutes.
Plaintiff’s sister, Sherry Hill, arrived at the store a few minutes after Plaintiff fell and noted that the store was a mess and “everything was on the floor everywhere.” Approximately twenty to thirty minutes after Plaintiff fell, her daughter, Nikeya Hill, came to the store and also found the store was “a mess.”
However, Nikeya Hill was not in the store when the accident occurred and does not know for how long items had been on the floor. Nikeya Hill took picture of the piece of plastic on which Plaintiff fell and of other areas of the store.
The pictures depicting other areas of the store show areas of the floor around clothing racks, with clothing, hangars and other items on the floor. There are two pictures of the plastic in the Home section; one shows nothing on the floor except the piece of plastic and the other shows a thin piece of paper coming out from the bottom of what appears to be a rolled-up rug.
No other items are shown laying on the floor near the piece of plastic.
Ross has video surveillance cameras throughout the store. However, the area where Plaintiff fell is in a “blind spot.” One of Ross’s employees viewed the video footage of the day that Plaintiff fell but noted that the incident was not on tape and did not save the footage of the surrounding areas.
However, Ross did save footage of the store entrance and exit for the time period before and after Plaintiff’s incident. The surveillance equipment automatically records over all footage after 30-45 days. Consequently, the footage of the area near where Plaintiffs incident occurred was recorded over.
Plaintiff’s Motion for Adverse Inference Instruction is Denied
Plaintiff asked for an adverse jury instruction because Ross did not save the store surveillance video taken of the area near where Plaintiff fell on the day she fell.
While Plaintiff appears to accept that the cameras in the store did not actually record the exact area where Plaintiff fell, she argues that the cameras did record the areas nearby and would have shown when Ross’s employees last inspected the area.
Because Ross reviewed the surveillance tape but did not save it, Plaintiff asks the Court to give the following jury instruction:
“The term “spoliation” refers to the failure to preserve evidence that is necessary to contemplated or pending litigation. The law provides that spoliation creates a rebuttable presumption that the evidence not preserved was unfavorable to the party responsible for the spoliation.
In this case, because Ross disposed of the video footage before providing Plaintiff an opportunity to inspect and review it, you may presume that Ross had constructive notice of the plastic on its store floor, however, Ross may rebut that presumption.”
Plaintiff claims that she is entitled to the jury instruction because Ross, despite asserting the work product privilege over the video, destroyed the video taken the day of Plaintiff’s incident. She argues the video would rebut Deler’s testimony that she walked through the Home area every ten minutes.
Ross responded that it never had video of the area where the incident took place because the area is in a “blind spot” between surveillance cameras and, therefore, it was not under any obligation to preserve the video of areas where no incident took place.
An adverse inference is drawn from a party’s failure to preserve evidence only when the absence of that evidence is predicated on bad faith. Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997) (finding no bad faith when loss of evidence, a tape that recorded the speed of a train, was wholly unexplained).
The court said that “while this circuit does not require a showing of malice in order to find bad faith, mere negligence in losing or destroying records is not sufficient to draw an adverse inference.” Mann v. Taser International, Inc., 588 F.3d 1291, 1310 (11th Cir. 2009). In Walter v. Carnival Corp.,2010 WL 2927962 (S.D. Fla. 2010) (citing Calixto v. Watson Bowman Acme Corp.,2009 WL 3823390, at *16 (S.D.Fla. Nov.16, 2009)), the court held that:
“If direct evidence of bad faith is unavailable, bad faith may be founded on circumstantial evidence when the following criteria are met:
(1) evidence once existed that could fairly be supposed to have been material to the proof or defense of a claim at issue in the case;
(2) the spoliating party engaged in an affirmative act causing the evidence to be lost;
(3) the spoliating party did so while it knew or should have known of its duty to preserve the evidence; and
(4) the affirmative act causing the loss cannot be credibly explained as not involving bad faith by the reason offered by the spoliator.”
See also Managed Care Solutions, Inc. v. Essent Healthcare, Inc., 736 F. Supp. 2d 1317, 1331 (S.D. Fla. 2010) (using same standard).
The court said that the Plaintiff has not shown that Ross had a duty to preserve surveillance video that does not actually show the area where the incident occurred. Thus, she is not entitled to an adverse inference.
Even if Ross had a duty to preserve the video, Plaintiff has not shown that Ross destroyed the video in bad faith. Ross did not affirmatively destroy the video; it was recorded over as part of Ross’s usual operating procedures.
Finally, had the video been preserved, at most it would have shown when Ross’s employees were in the general vicinity of Plaintiff’s fall. It would not have shown when the loose piece of plastic ended up on the floor.
Thus, even if Plaintiff were entitled to an adverse inference, the inference would only be as to when Ross’s employees were in the area, not that the employees knew or should have known of the plastic on the floor. The court denied Plaintiff’s Motion for an Adverse Jury Instruction.
Ross moved for summary judgment because Plaintiff cannot establish that Ross knew or should have known of the hazardous condition, the loose piece of plastic, because there is no evidence establishing when or how the plastic ended up on the floor. Under Florida law:
“(1) If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that:
(a) The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or
(b) The condition occurred with regularity and was therefore foreseeable.” Fla. Stat. § 768.0755(1).
A plaintiff has the burden of presenting competent evidence of actual or constructive notice by the premises owner of the dangerous condition. Winn-Dixie Stores, Inc. v. Mazzie, 707 So. 2d 927, 929 (Fla. 5th DCA 1998). Learn about slip and fall claims against Winn Dixie Stores in Florida. Check out slip and fall claims against Florida supermarkets.
Thus, in order to hold the premise’s owner liable, a plaintiff must show that the dangerous condition existed on the floor for a sufficient length of time to charge the owner with constructive knowledge of the condition. Winn Dixie Stores, Inc. v. Williams, 264 So. 2d 862, 864 (Fla. 3d DCA 1972).
Florida courts have found that 15-20 minutes is a sufficient amount of time to charge the premise’s owner with constructive knowledge of the condition. Id,; Little v. Publix Supermarkets, Inc., 234 So. 2d 132, 134 (Fla. 4th DCA 1970). Check out slip and fall injury claims against Publix Supermarkets in Florida.
However, in Florida, in order to establish constructive notice through circumstantial evidence, more than just the passage of time is necessary.
For example, in Williams, the manager testified that he had been through the aisle where the plaintiff had fallen fifteen to twenty minutes before the accident and Plaintiff and a witness testified that the substance on the floor on which Plaintiff slipped was sticky, dusty and dirty, Williams, 264 So. 2d.
In Little, the plaintiff testified that she was alone, except for a woman with whom she spoke, in the aisle where she fell for fifteen to twenty minutes and did not hear anything drop, break or spill. Little, 234 So. 2d at 133.
According to Ross, Plaintiff has not presented any evidence that Ross had either actual or constructive knowledge of the piece of plastic on the floor. Further, Plaintiff has not presented any evidence indicating when or how the plastic ended up on the floor.
Plaintiff responds that a material issue of fact exists as to when Ross’s employees last inspected the area where Plaintiff fell and thus it is not clear how long the plastic was on the floor. The court said that the evidence does not indicate how the plastic got on the floor or how long it had been there.
Plaintiff does not know, and two of Ross’s employees said that they had walked through the area ten to fifteen minutes before Plaintiff’s fall and had not seen the plastic on the floor.
Plaintiff argues that a genuine issue of material fact exists as to when Ross’s employees last walked through and inspected the area because of:
(1) inconsistent interrogatory answers and deposition testimony;
(2) inconsistent testimony of store employees; and
(3) the generally “messy” appearance of the store.
The court said that a review of the interrogatory answers and deposition testimony, however, shows that there is not an inconsistency. Ross’s interrogatory answers state that Bianca Deler “inspected the incident location approximately 30 minutes or less before the incident occurred and did not observe any hazardous conditions on the floor.”
Deler said that she had inspected the area ten minutes before the incident. Because the interrogatory answer states “or less,” it is not inconsistent with Deler’s deposition testimony.
Thus, Plaintiff is not entitled to the inference that Deler was last in the area 30 minutes before the incident. Plaintiff further tried to discredit Deler’s testimony because Defer testified that she walks through her department every 10 minutes, while the store manager testified that she would only expect Deler to walk through the department at least once an hour.
Plaintiff asserts that this is a conflict in the evidence which creates another issue of material fact. However, the manager’s and Deler’s testimony are not inconsistent.
Simply because Deler exceeds her manager’s expectations in performing parts of her job does not create a material issue of fact as to how often she performs walk-throughs of her department.
Because the uncontested evidence is that Deler walked through the area where Plaintiff fell ten minutes before Plaintiff fell, Plaintiff has failed to meet her burden of establishing that the plastic was on the floor for a long enough period of time to charge Ross with constructive notice of its presence on the floor.
Consequently, there is no evidence that Ross knew or should have known of the hazardous condition, the plastic on the floor, and this should have remedied the condition.
Plaintiff also maintains that she is entitled to an inference that Ross’s employee Lewis was not in the area 10-15 minutes before Plaintiff’s incident. Plaintiff is correct that the evidence creates a genuine issue of material fact regarding when Lewis was last in the area, because his testimony that he accompanied a guard carrying money conflicts with the manager’s testimony that Lewis would not do that.
However, this issue does not prevent summary judgment in favor of Ross because, as set out above, there is no issue of material fact as to when Deler was last in the area.
Consequently, Ross is entitled to summary judgment because Plaintiff cannot establish that Defendant knew or should have known of the hazardous condition, the piece of plastic on the floor, and thus had a duty to remedy the condition.
Finally, Plaintiff, her sister, and her daughter all admitted that they did not know how the nature of the traffic or the condition of the Home section prior to Plaintiff’s fall. Plaintiff’s sister’s and daughter’s “mess” testimony and the pictures depicting a “mess” only pertained to other areas of the store.
Further, based on the items described as being on the floor, it appears that such items would not be in the Home section near the rugs. Thus, taking all of the inferences in the light most favorable to Plaintiff, it is insufficient as a matter of law to infer that Ross had constructive notice of a dangerous condition in its Home area.
The court dismissed the case. Ross won. The woman lost.
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