Defendant moved – shocker! – for summary judgment – arguing “Hey, we didn’t know the puddle was there.” Plaintiff maintained there was a dispute of fact as to just how long the puddle was there and whether defendant was on constructive notice of this ostensibly dangerous condition. Specifically, plaintiff argued that because defendant produced no evidence of the condition of the puddle and the time of the fall, he should get an adverse inference jury instruction that the puddle had been on the floor long enough to establish constructive notice.
Plaintiff also argued in its response to the motion – and on appeal – that the condition of the puddle created a factual dispute as to whether someone else made tracks through the puddle before plaintiff. Why would this matter? Well, plaintiff maintains that if the puddle tracks were made, the puddle may have existed for a sufficient duration to attribute constructive notice of the puddle to defendant.
The facts of the case don’t provide any information as to how serious the injuries in this case were. I suspect they were pretty serious – because these lawyers were reaching pretty deep. I admire the effort. But it did not fly here.
On the issue of the length of time the condition existed, the court acknowledges there are some circumstances where such a jury instruction would be appropriate. Specifically, the court said the rule in Michigan is that a jury may draw an adverse inference against a party that has failed to produce evidence when: “(1) the evidence was under the party’s control and could have been produced; (2) the party lacks a reasonable excuse for its failure to produce the evidence; and (3) the evidence is material, not merely cumulative, and not equally available to the other party.” That rule did not apply in this case because the trial court apparently made the determination that K-Mart’s excuse for not producing evidence of the spill was reasonable. What excuse was that? K-Mart said that it cleaned up the puddle after plaintiff fell, rather than leave the puddle on the floor. I guess that makes sense although maybe that is a jury question. How about roping off the area and taking some good pictures?
As for the second argument, the ol’ “who made the tracks?” issue, the plaintiff conceded in deposition, however, that the tracks may well have been his own. I guess it is hard to create a factual dispute with yourself.
You can find the full opinion of the Michigan Court of Appeals in Beyer v. K-Mart here.