Thursday, May 3, 2012

Judge rejects entire defense after spoliation

Virginia Lawyers Weekly published this article today . Goes  to show that honesty and integrity  an inttegral part off our justice system.

In this lawsuit  involving Safeway, Inc., (Garlick v. Safeway, Inc.), and the Virginia Supreme Court ruled that these cases should be heard by a jury rather than decided by a trial judge. Safeway had originally been successful in getting the slip and fall lawsuit dismissed on the grounds that the plaintiff’s case lacked evidence. The Supreme Court reversed the circuit court citing that they erred in granting Safeway’s motion that the plaintiff did not have a “prima facie” case.  Prima facie is a Latin term, which refers to the evidence sufficient to prove a case

Judges can come down hard on litigants who hide or destroy evidence, but they rarely go so far as to block a defendant’s entire liability defense. Yet that’s what a Fairfax County judge did in a supermarket slip-and-fall case last year.

Circuit Judge Robert J. Smith lowered the boom on Safeway Inc., after finding the company had submitted an affidavit which – incorrectly – stated that vital evidence had been destroyed in conjunction with a store remodeling project. A company official later acknowledged the statement was false, according to Fairfax attorney Lawson D. Spivey III, who represented accident victim Cynthia Garlick.

In a trial that focused on damages only, a jury awarded Garlick $120,000 last year. The case is Garlick v. Safeway Inc.

Even after acknowledging the disingenuous affidavit, the company still never produced the information sought. The missing evidence included an employee’s statement about the accident, the name of the employee and video of the accident, Spivey said.

Spivey said his injured client did her own investigative work to locate the store employee. After five years of litigation, including three visits to the Supreme Court of Virginia, Garlick is hoping to see Safeway’s check for nearly $130,000, representing the verdict plus interest.

Garlick was shopping at a Safeway in Burke when she slipped in water on the floor and fell, breaking her arm. She had seen an employee in the area, stocking a shelf with cheese. The employee moved off and she approached the area, then slipped. She testified in an initial trial that she found herself in a puddle of water that covered an area of two-and-a-half to three feet of the floor.

Another employee testified he had seen water dripping from similar food carts, according to a 2009 Supreme Court opinion in the case.

Smith rejected Garlick’s case in the first trial. He struck her evidence, finding she had failed to show that Safeway could have known about the hazard.

The Supreme Court reversed in an unpublished order, sending the case back to Smith for another trial. With evidence showing an employee working in the area of the hazard, the court ruled, a jury could conclude that the employee should have either cleaned up the water or warned customers.

On remand to the Fairfax court, Smith gave the green light for Spivey and his team to explore Safeway’s missing evidence. “We kept getting the runaround,” Spivey complained.

Garlick’s lawyers demanded a deposition of a corporate representative with knowledge of the store’s practices regarding accidents. The designee revealed the missing information was not destroyed as part of any store remodeling. Nonetheless, the information still was not available.

Spivey said Garlick spent thousands of dollars on investigative work, in the absence of discovery documents from Safeway. “They really put it to her,” Spivey said.

Garlick managed to locate the Safeway employee involved. “It was just a stroke of luck that we found that employee,” Spivey said.

Smith’s decision to strike Safeway’s liability defense came at a hearing, Spivey said. “This has been a lesson in discovery abuse,” he reportedly said.

Safeway counsel Paul L. Warren of Norfolk did not return a call for comment.

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