Crowder orders directed verdict and sanctions against Moto Mart in slip and fall trial

Amelia Flood Sep. 17, 2009, 3:52pm


Madison County Circuit Judge Barbara Crowder ordered a directed verdict in favor of a personal injury plaintiff in a case against an Edwardsville Moto Mart.

In response to what she said was disturbing and "cavalier" behavior on the part of the defendant in a slip and fall negligence suit, Crowder did something she said, "I hate to do."

She ruled in favor of John Linkes' double move for sanctions against defendant FKG Oil Company, which owns the Moto Mart, and ordered a directed verdict in favor of Linkes on the issue of liability. The motion for the directed verdict and sanctions had been made orally Wednesday and was filed Thursday morning.

The ruling came after the third day of the trial's testimony, during which employees had admitted they caused the wet floor that Linkes claimed caused a torn ligament in his knee. He slipped on the floor of the Moto Mart in March 2007 about 27 seconds after a store employee mopped it.

Linkes' wife, Linda, is a co-plaintiff with a claim for loss of consortium.

The suit seeks damages of at least $50,000 and costs per its three counts, as well as punitive damages.

After the jury was sent home at 3:20 p.m. Thursday, Crowder took up motions by both the defense and plaintiff.

She denied defense attorney Victor Avellino's move for a directed verdict, finding that the plaintiff had met its burden to merit the jury's consideration of the claims.

After a day of sniping between Avellino and plaintiff's counsel Gordon Broom, Broom moved for sanctions and for the directed verdict on the grounds that FKG had not answered various interrogatories truthfully.

He argued that the company had not bothered to find out if any cleaning or maintenance had been done in the Moto Mart on the day of the accident before signing an interrogatory under oath and that Rob Forsyth, the company's president and safety officer, had testified that there was no cleaning or maintenance done while on the witness stand Wednesday. Surveillance tapes and the testimony of other witnesses, he said, contradicted that.

Crowder interrupted Broom at one point, asking, "Am I to understand this is another instance when nobody called Mary Missey or the manager of the Edwardsville Moto Mart before the interrogatory was signed?"

When questioned by Crowder, Forsyth said he had misunderstood the time frame in the question and that he'd misspoken. He apologized to the court.

Broom argued that the violation was the second such move by FKG and that it smacked of a "lackadaisical" attitude toward the case.

"I am furious," Broom said.

Broom pointed to the fact that Forsyth and the Moto Mart's manager, Jim Warnecke, had testified in depositions that wet floor signs were put up by employee Mary Missey on the day of the accident and that those statements were repeated in another interrogatory sent by the defendants. The defendants changed that answer Sept. 4, after surveillance tape showed that Missey did not put the signs up, Warnecke did.

FKG was sanctioned previously by Crowder over an interrogatory.

Broom and Avellino continued sniping as Broom delivered the arguments, particularly when he called Crowder's attention to the appearance of the original incident report that FKG had claimed was lost that related to John Linkes' accident. Broom was informed that it had been found early Thursday.

"We are not going to play cat and mouse, let's hide the evidence and then change the evidence on the day of the trial," Broom said.

Avellino interrupted Broom, telling him that it had been found by chance and, "You can roll your eyes, Gordon."

"I'm not rolling my eyes," Broom retorted. "My heart is about to jump out of my chest.

Avellino told Crowder that the company had made mistakes in the interrogatories because they had not reviewed the full surveillance footage. He also argued that the plaintiff had the same footage and had made the same error in not realizing Missey had not been the one to put up the warning signs of the mopped floor.

He continued to claim the form had been found by chance by Warnecke, following his direction and that he had made Broom aware of it in a professional manner.

Crowder took a few moments to read cases presented by both sides before handing down her ruling.

After saying that she thought her prior sanctions order had made it clear that she would not tolerate "games" from either side, Crowder went into a lengthy explanation of her current ruling.

"Nothing upsets me more … than people who don't take their obligations in this system seriously," she told the defendants.

"This case has gone on and on," she said.

Crowder spoke of how she had been disturbed since the first sanctions issue and that "everyone" is obligated to provide truthful answers and to investigate issues before answering and testifying under oath.

"The answer is not, 'Gee, they could have watched the same five hours of video tape,' which we didn't do ourselves," Crowder said.

She told FKG she was "meandering because I'm upset," chiding them for their attitude.

"That's an insult to the people who were hurt; it is an insult to opposing counsel and a great insult to the justice system," she said.

Crowder said she believed that the admissions of FKG's own employees had demonstrated that the store was at fault for Linkes' fall and that there was little dispute about it, outside of what she called "distortion" tactics.

Forsyth had admitted that Missey had not followed the company's own policies regarding warning of wet floors in previous testimony.

Crowder reserved her ruling on Broom's request for attorneys' fees as part of the sanction. She ordered the directed verdict to be for the Linkes on the negligence and loss of consortium counts and that the jury would consider damages for those counts and the punitive damages count when the trial reconvenes at 9 a.m. Friday.

FKG, which has yet to put on its two defense witnesses, will be allowed to present evidence and testimony pertaining to the damages and punitive damages count.

"I do not enjoy having to make these kinds of rulings," Crowder said near the end of her ruling. "But I cannot rule indifferently based on your behavior."

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