More is Not Better:

Plaintiff's Multiple Versions of Accident Dooms Case

As part of our continuing commitment to provide outstanding representation and to serve as an information resource, we wish to inform you of a recent decision concerning slip and fall liability.

If you give a plaintiff enough opportunity, sometimes they will give you enough to sink their case. A recent case that we defended for our client, Costco, demonstrates this. In Holmes v. Costco, the plaintiff claimed that she slipped and fell at a Costco warehouse by the check-out registers. When the Administrative Manager was notified, she inspected the area and found a substance sticky like gum, not a liquid. The Administrative Manager directed the plaintiff to fill out a report which provided in part that plaintiff "was standing in the check-out line and when I moved further up to the counter I slipped and fell to the floor". Plaintiff sued Costco alleging negligence in that a dangerous or defective condition existed.

After discovery was completed, Costco moved for summary judgment claiming that it had no notice of any dangerous or defective condition. The Assistant Manager provided an affidavit asserting that on the date of the accident, there was a floorwalk inspection conducted between 2:00 p.m. and 2:30 p.m. (during the time plaintiff claimed she fell) and no foreign substance or any other problem was detected. Costco provided a copy of the floorwalk checklist which showed that there was no known floor spills or tripping hazards. The trial Court granted Costco's motion for summary judgment, finding that plaintiff had failed to establish any dangerous or defective condition and that plaintiff had not refuted Costco's contention that they did not have actual or constructive notice of a dangerous or defective condition and therefore, plaintiff had failed to raise material issue of fact that would require a trial.

In particular, the Court noted that Costco had shown that the plaintiff had presented four (4) different versions of the events. First, the plaintiff alleged in her complaint that Costco had actual notice of the condition for at least 15 days. Second, plaintiff alleged in her bill of particulars that there was another condition that caused the fall. Third, plaintiff's deposition alleged that she slipped on a damp piece of cellophane paper, and her pants leg were wet from the moisture on the floor. Fourth, plaintiff son's deposition alleged that plaintiff fell into a shopping cart due to a defective wheel that had jammed, and that he found a screw from such a wheel lying on the floor. In addition, plaintiff's son submitted a later affidavit in which he then claimed the plaintiff fell due to a combination of the shopping cart wheel jamming and the cellophane paper on the floor. The Court concluded that "plaintiff's shifting versions of events undermine plaintiff's case and do not refute defendants' entitlement to summary judgment".