It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

Even if the loss of the videotape was only negligent, CACI 203 (Party Having Power to Produce Better Evidence) instructs that the jury may draw an adverse inference against XYZ Market: You may consider the ability of each party to provide evidence. If a party provided weaker evidence when it could have provided stronger evidence, you may distrust the weaker evidence. This is based on Evidence Code section 412, which, provides: If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

There is videotape capability in the area where Ms. Black fell. XYZ Market insists that there is not and has never been any video taken on the incident date showing the area of Ms. Black's fall. In direct contradiction, Charles Black has testified under oath that he was told by both Tom Miller and Kim Li of XYZ Market's Risk Management Department that videotape of the slip and fall scene did in fact exist, and that XYZ Market was reviewing the tape in order to investigate Maggie Black's accident. This presents an issue of fact whether XYZ Market did either lose or destroy the videotape. If it did, then the jury may draw an adverse inference that the videotape would have shown conditions detrimental to XYZ Market's defense.

This Court should therefore deny the present motion on the additional triable issue of material fact concerning spoliation of evidence.

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

Spoliation of Evidence/Adverse Inference

The California Supreme Court, in finding that there is not an independent tort of spoliation of evidence, stated, The intentional destruction of evidence is a grave affront to the cause of justice and deserves our unqualified condemnation. There are, however, existing and effective nontort remedies for this problem. Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 4. The Supreme Court found that the adverse inference a jury may draw against the spoliating party is an adequate safeguard: [In] Evidence Code section 413, this inference is as follows:

In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party's ... willful suppression of evidence relating thereto ... The standard California jury instructions include an instruction on this inference as well: If you find that a party willfully suppressed evidence in order to prevent its being presented in this trial, you may consider that fact in determining what inferences to draw from the evidence. (BAJI No. 2.03 (8th ed. 1994).) Id. At 12. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

The evidence shows that XYZ Market had repeated problems with employees logging their sweeps before they actually did them.

There is also evidence, from the testimony of Maggie Black and independent witness Burns, that Ms. Black did in fact slip on something wet. There is evidence from the testimony of Maggie and Charles Black that there was a substantial amount of liquid on the floor enough so that her pants were wet on the buttock and both legs. The testimony of various witnesses, including Tom Miller and Ms. Black, establishes that she sat on the floor where she fell while awaiting the ambulance. This shows how the liquid had time to soak into her jeans. A substantial amount of liquid on the floor should have been noticed by the XYZ Market employees working nearby. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Under these facts, a reasonable jury could conclude:

1) XYZ Market employees involved in re-stocking activities created the dangerous condition on which plaintiff fell by either tracking in something wet from the back storage area or by transporting leaky product, or

2) The XYZ Market employees working in close proximity to where plaintiff fell should have seen the wet substance on the floor and cleaned it up, but were either negligent in not detecting it, or did see it but chose not to clean it up promptly. This is particularly true for the employee working the dairy case within five to six feet of the wet area.

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

There are Triable Issues of Fact Whether XYZ Market Employees Either Created the Dangerous Condition, or Knew or Should Have Known About It

The key question for the Court on summary judgment is whether there are triable issues of fact for the jury to consider. Based on the evidence here, we know that 8:30 a.m. is a slow time for this store; there were very few customers present. We know from the testimony of plaintiff, and XYZ Market employees Nancy Smith and Sean Reilly that at the time of the accident there were extensive ongoing re-stocking procedures, involving one employee in the meat section ten feet away, one re-stocking the dairy case five to six feet from where plaintiff fell, and three to five employees in aisles within sight of the fall. We also know that employees were coming in and out of the double swinging doors located near the fall area. There were many boxes scattered on the floor in that area. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It is undisputed from XYZ Market's documents and its PMK testimony that every employee has an equal responsibility to detect and correct slip and fall hazards on the floor.

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

ARGUMENT

Applicable Law

CACI 1001 (Standard of Care) provides:
A person who [owns/leases/occupies/controls] property is negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition. A person who [owns/leases/occupies/controls] property must use reasonable care to discover any unsafe conditions and to repair, replace, or give adequate warning of anything that could be reasonably expected to harm others. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In deciding whether defendant used reasonable care, you may consider, among other factors, the following:
(a) The location of the property;
(b) The likelihood that someone would come on to the property in the same manner as plaintiff did;
c) The likelihood of harm;
(d) The probable seriousness of such harm;
(e) Whether defendant knew or should have known of the condition that created the risk of harm;
(f) The difficulty of protecting against the risk of such harm; [and]
(g) The extent of [name of defendant] 's control over the condition that created the risk of harm; [and]
(h) [Other relevant factor(s).]

The comment to CACI quotes the leading California Supreme Court cases on premises liability: The proper test to be applied to the liability of the possessor of land... is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others ... Rowland v. Christian (1968) 69 Cal.2d 108, 119.

It is worth noting that situations similar to those described in this personal injury case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

THE STRINGENT SUMMARY JUDGMENT STANDARD

A motion for summary judgment shall be granted only if all the papers submitted show there is no triable issue of any material fact and that the moving party is entitled to a judgment as a matter of law. CCP § 437c, subd. c); Molko v. Holy Spirit Assn. (1988)46 Cal.3d 1092. The Molko Court stated:

Accordingly, the function of the trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves. (Walsh v. Walsh (1941) 18 Cal.2d 439, 441.) Summary judgment is a drastic measure that deprives the losing party of a trial on the merits. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35, 210 Cal.Rptr. 762.) It should therefore be used with caution, so that it does not become a substitute for trial. (Rowland v. Christian (1968) 69 Cal.2d 108, 111, 70 Cal.Rptr. 97.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The affidavits of the moving party should be strictly construed, and those of the opponent liberally construed. (Stationers Corp. v. Dun & Bradstreet (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449.) Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Slobojan v. Western Travelers Life Ins. Co. (1969) 70 Cal.2d 432,437, 74 Cal.Rptr. 895.) Molko, supra, at p. 1107. (See Part 8 of 12.)

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

In addition, Mr. Miller testified:

Q: Is this floor, as far as you're concerned -- is it something that if an employee is looking for water on the floor, you would expect him to see it and correct it?

A. Sure.

Q. If an employee is engaged in restocking activities in the area where Ms. Black fell, even if their job at that moment is to restock, if they saw water on the floor, they should clean it up,

A. Absolutely.

Mr. Miller also testified:

The store in question has 27,000 square feet of customer sales floor area. The time of plaintiff's accident (roughly 8:45 a.m.) was a slow time for customers at the store. All employees are trained to look out for slip and trip hazards, including water. He does not know where all his employees were at the time of plaintiffs fall. Although there is videotape capability in the are where Ms. Black fell, there was no videotape. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The employee documents his inspection into the sweep log recording system after the sweep is completed. Mr. Miller saw plaintiff on the floor after her fall. He marked a "C" on the floor plan exhibit to his deposition showing where Ms. Black fell. Ms. Black was initially face down, but then sat up on the floor where she fell. She was there about 15 minutes before paramedics arrived.

The most common causes of moisture on the floor are meats and produce.

Deposition of Nancy Smith

Nancy Smith was working the dairy section. She testified as follows:

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Deposition of Store Manager Tom Miller (Designated PMK)

In response to plaintiffs' CCP 2025 notice for corporate representative most knowledgeable about store procedures, XYZ Market produced its store manager, Tom Miller. In his deposition quoted below, Mr. Miller confirmed that every employee has an obligation to maintain a lookout for slip hazards, and clean them up when they see them:

Q. All right. Let's talk a little bit about XYZ Market's floor inspection or sweep policy. Is it XYZ Market's position that safety is every employee's responsibility?

A. Absolutely.

Q. You have a slogan, Don't pass it by, pick it up, correct?

A. Correct.

Q. If an employee sees something on the floor such as liquid or debris, they're supposed to pick it up immediately; is that right?

A. Attend to it as soon as they can, yes.

Q. Is liquid on a store floor a safety hazard?

A. Absolutely.

Q. Are foreign substances on the floor a safety hazard?

A. Absolutely.

Q. Does every employee have an obligation to check the floor in areas where they're working?

A. Yes.

Mr. Miller testified further:

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

Charles Black Testimony

Charles Black was not present for the incident, but has testified that store manager Tom Miller told him that XYZ Market had video of the are where the fall occurred both before and after the incident. He told Mr. Black that the video had been sent to Kim Li, XYZ Market's District Manager, for review. Mr. Black later talked with Kim Li who told him she had the video. Charles Black felt his wife's pants at the Emergency Room and they were wet in the buttocks area and on both thighs. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

XYZ Market's Policies and Procedures

Documents

XYZ Market has produced documents it claims are confidential trade secret pursuant to a agreement for protective order. Plaintiff relies on some of these documents, which are lodged herewith as separate. Chief among these are documents entitled "Customer Accident Prevention" and "Slip and Fall Prevention," which state that each and every XYZ Market employee shares equal responsibility for detecting an correcting slip and fall hazards. Don't pass it by, pick it up is XYZ Market's motto in this regard. Plaintiffs are lodging XYZ Market's claimed confidential trade secret documents pursuant to Cal. Rule of Court 2.551 (b)(3). Plaintiffs do not intend to file a motion to have the records sealed, and hereby give notice to XYZ Market that the records lodged herewith, will be placed in the public court file unless XYZ Market files a timely motion or application to seal the records.

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

Maggie Black Testimony

Ms. Black has testified in relevant part as follows:

She went to the back of the store and took a right turn into the back aisle. She was on her way to the dairy case containing yogurt. There were multiple XYZ Market employees re-stocking in the area of her fall before she fell, and there were boxes everywhere on the sales floor. There were three to five employees re-stocking the aisles adjacent to the area where she was walking just before she fell. There was a woman re-stocking the dairy section about 6' away when plaintiff fell. Maggie Black stated in answers to written discovery that there were XYZ Market employees "within 10 feet" of where she fell. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

•The woman stocking in the dairy section was no more than five to six feet away from where plaintiff fell.

•She walked by the double doors on her way to get yogurt, and she also saw a male XYZ Market employee come out from the double doors at the back of the store as she walked by.

•As Ms. Black turned into the back aisle, she noticed a XYZ Market clerk stocking meat in the butcher department.

•The clerk in the meat department was about 10' away (behind her) when she turned into the back aisle.

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

FACTS

THE INCIDENT

The incident occurred on March 24, 2005. As she testified at her deposition, Maggie Black, a 38-year-old mother of two children (ages 4 years, and 16 months), was shopping at the Sacramento XYZ Market. Plaintiff fell at about 8:45 a.m. As she was walking with her 4-year-old looking for yogurt, she suddenly stepped on something wet and slippery on the floor. She lost her balance and fell face down, striking her right elbow. She is right handed. The fall occurred near the dairy Blacker located to the left of some double swinging doors that lead back to public restrooms, storerooms, and employee-only areas, such as the employee break room. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

XYZ Market claims it found no evidence of moisture on the floor, but admits for the purpose of this motion that some wet or slippery substance was on the floor. For the Court's background information, independent witness Mike Burns testified in deposition that he saw Ms. Black walking with her son, and that she suddenly appeared to be slipping and walking in place as if on ice. Her feet slipped out behind her, and she fell face down. Ms. Black testified that she noticed her pants were wet after she fell and spent time sitting on the XYZ Market floor where she fell.

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

Plaintiffs' Opposition to Defendant's Motion for Summary Judgment

INTRODUCTION

Plaintiffs Maggie and Charles Black oppose XYZ Market's summary judgment motion on two primary grounds:

First: There were multiple XYZ Market employees working on the floor near the area where plaintiff slipped and fell on a wet substance, both at and before the time of plaintiffs fall. One of these employees was five to six feet from the substance on which Maggie Black slipped. XYZ Market's written standards state that it is every employee's responsibility to detect and correct slip and fall hazards, not just the low level clerks who do the sweep log.

Plaintiff alleges the various employees working in the area of her fall failed their responsibility. There is a triable issue of fact whether these employees used reasonable care in their failure to detect and wipe up the wet area on which plaintiff fell. A jury could also find that these employees actually created the condition through their restocking activities, in which case notice to XYZ Market is presumed. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Second: XYZ Market representatives told Charles Black that there was videotape of the area where plaintiff Maggie Black fell, and that they were reviewing the tape. Once litigation commenced, XYZ Market stated that it had no videotape.

The Evidence Demonstrates Triable Issues Of Whether Defendant Dr. Lee Breached the Standard of Care And Whether She Caused George Jackson's Brain Damage

Even if the defendant could overcome the several evidentiary defects of her motion, she has still failed to demonstrate as a matter of law that she met the standard of care or that she did not cause George's brain damage. The defendant's expert evidence focuses on the events of 17:22, when defendant Lee finally went up to see her patient. At that point., she contends, she reacted quickly and her supervisor endorsed her actions. The defendant necessarily disregards her prior lapses that created the emergency in the first place. In other words, while she boasts that she acted quickly to "put out the fire," she ignores her own negligence that started the fire in the first place. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

The expert testimony of Dr. Jason White, board-certified in Obstetrics and Gynecology, and a Clinical Professor of medicine at the University of California, explains defendant Dr. Lee's multiple breaches of the standard of care and how they caused George's brain damage. The defendant failed to ask for the objective data concerning the fetus's status. She relied on vague and generalized interpretations from a nurse, rather than soliciting facts that she could use to make a determination.

If she had asked those questions, she would have fully appreciated the growing danger to George. The baby's baseline heart rate had become 170 beats per minute when not in deceleration, which was not only an increase but abnormally high as well. The baby was already tachycardic at 17:00, but the defendant failed to ask about that. She also would have ordered the Pitocin to be turned off, because that was contributing to the fetal distress.

The Ross declaration is equally week on the issue of causation. The defense expert asserts that the few minutes of delay in attempting a vacuum extraction did not cause George's brain damage. The declaration fails to address the manifest question, though: If that did not cause the brain damage, then what did? Further, the defense expert fails to address the delay from 17:00 to 17:22. If this did not cause brain damage either, then what explanation does the defense expert offer? The defense expert's declaration is silent about all of these questions. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

As Kelley held, without illuminating explanation, [an expert's declaration is] insufficient to carry [the defendant's] burden in moving for summary judgment. Moreover, because the defendant's supporting declaration is inadmissible to support summary judgment, the defendant failed to meet her threshold burden of persuasion. The burden of production thus never shifted to George, so the defendant's motion for summary judgment should be denied even without considering the opposing evidence. C.C.P. § 437c(o)(2); FSR Brokerage, 35 Cal.App.4th at 73 n.4, 41 Cal.Rptr.2d at 407 n.4 (1995) (plaintiff has no burden to show a triable issue if the defendant failed to meet its initial burden of showing by admissible evidence the absence of a triable issue of material fact).

The defendant may attempt to cure these deficiencies by having her expert submit a new or supplemental declaration. Again, however, any such declaration should be rejected as untimely.

The Richard Green Declaration is Insufficient To Support Summary Judgment

If the defendant relies upon expert testimony to meet its burden of persuasion, that testimony must meet the standards of admissibility. An expert's bare conclusion is insufficient to support summary judgment, just as it would be insufficient at trial. In Kelley v. Trunk, 66 Cal.App.4th 519, 78 Cal.Rptr.2d 122 (1998), the appellate court held that an expert declaration was insufficient to support summary judgment. That declaration was remarkably similar to the Willis Declaration in the present action. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

Kelley held that the declaration of the expert was deficient to support summary judgment. As the appellate court stated, to be admissible the expert had to explain the connection between the recitation of facts gleaned from the medical records and the ultimate opinion:
[A]n expert opinion is worth no more than the reasons upon which it rests. Here, the crucial issues were: What was the nature of the disease or condition that required Kelley's surgery? Was it brought on by the laceration? What symptoms of this condition reasonably might have been observable at the time Kelley complained to Dr. Trunk of continuing intense pain unmediated by medication? Should a reasonable doctor at this point in time have recognized the possibility of severe complications? If so, why? If not, why not? Would complications of the kind Kelley eventually suffered have become evident any earlier than three or four days after the laceration? Would earlier intervention have mitigated Kelley's injury? Herndon's declaration addressed none of these issues. Without illuminating explanation, it was insufficient to carry Dr. Trunks' burden in moving for summary judgment. 66 Cal.App.4th at 524, 78 Cal.Rptr.2d at 124.

In the case at bar, the Ross declaration has the same deficiencies, because there are no explanations or answers to the analogous questions that would be relevant in this case. Why didn't defendant Lee recognize the complications earlier? In view of Ms. Jackson's higher risk, and thus greater dangers to the baby, why was it within the standard of care to wait an additional 22 minutes to check on the labor, after the defendant was plainly aware of the risk of hypoxia (as indicated by the order for 8 liters of oxygen by mask)?