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Saturday, September 21, 2019

Appellate court backs $550,000 award in Casey's store slip and fall case

Lawsuits

By John Sammon | Jun 26, 2018


MOUNT VERNON – The Fifth District Appellate Court affirmed Madison Circuit Court Judge William Mudge who disallowed the defense to cross-examine a plaintiff who slipped and fell at a convenience store about a job offer he allegedly had to turn down because of the injuries from the fall.

The defendant had alleged plaintiff James Lakin of St. Jacob had concocted a fake job offer to inflate the amount of damages he received due to loss of wages, according to the June 14 ruling.

The Fifth District panel, that included Justices Richard Goldenhersh, John Barberis and Melissa Chapman, also found Mudge had not erred in denying a request by defendant Casey General Stores Inc. to instruct a jury in possible “contributory negligence” by the plaintiff.

In January 2017, a jury awarded Lakin $550,000 for the injuries he received when he slipped and fell at a Casey’s General Store on Dec. 27, 2013.

Lakin, who sued Iowa-based Casey’s General Stores Inc., injured his right shoulder in the fall. After treatment at an emergency center he was seen by an orthopedic surgeon and in March of 2014 surgery was performed to repair a tear in his shoulder, the ruling states. The plaintiff then underwent 12 weeks of physical therapy.

Despite the medical treatment, Lakin alleged he could no longer go bowling, ride a motorcycle or other physical activities he used to enjoy before falling at the store. He also stated he had become more isolated since the accident.

Lakin's suit stated that a spill at the Casey’s store caused the plaintiff, who was in the act of getting a soda, to slip and fall, and personnel at the store had not put out a “wet floor” sign or taken photos of the spill as required by company policy.

During a jury trial instruction conference, Mudge denied a request made by attorneys for Casey’s to instruct the jury on “contributory negligence.” This was based on a court determination there was no evidence the plaintiff had contributed to the accident at all.

A second challenge made by the defendant said the trial court erred when it barred its attorneys from cross-examining the plaintiff about alleged false testimony he had made concerning a job offer he received but was unable to accept due to his injuries.

“Casey’s insists the plaintiff's invention of a fake job offer to increase his potential damages goes directly to his credibility and is not a collateral issue,” according to the ruling.

The panel disagreed, finding that since Casey’s failed to make an offer of proof, it had waived any claim of error, and the trial court was within its discretion to bar evidence about a job offer because the plaintiff withdrew a claim for lost wages.

“The trial court understood the defense was attempting to challenge the plaintiff’s credibility by cross-examining him about the alleged job offer,” the ruling states.

The court thus found the job offer allegation a collateral issue not relevant to the case.

During trial, store employee Carrie Knebel Tolbert told the jury Casey’s safety manual requires photos to be taken of the area where someone falls. Pictures had not been taken where Lakin had fallen.

Tolbert also said she did not notice any liquid on the floor before the accident.

However, Paul Morence, the assistant store manager, went to Lakin’s aid after his fall and testified he believed there to be a colorless liquid, believed to be water, on the floor. He got a towel and mop and mopped the floor and looked around to see if any (soda) machines were leaking but didn’t find any.

The store was equipped with three video cameras but during discovery Casey’s provided film from one camera only. The playback and viewing of the video showing the area before the fall was inconclusive. Two parts of the video files were missing, and Morence could not explain the missing files, the ruling noted.

The panel held that there was no evidence the plaintiff contributed to his fall through negligence nor was there any testimony that the plaintiff did anything wrong or failed to see something that was clearly visible.

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