SEATTLE (Legal Newsline) - A grocery store chain that argued video evidence contradicted the testimony of a woman who won a $2.7 million verdict for an injured foot should have done a better job of challenging the plaintiff’s story at trial, a Washington appeals court ruled.
Sarah Griswold was shopping at Fred Meyer store when a wooden dolly fell on her foot, causing injuries severe enough for her to sue the hypermarket chain for negligence. At trial, Griswold testified an unknown Fred Meyer employee approached a shopping cart near her, placed something on it, then pulled the cart away so that the dolly fell off the cart.
Griswold was hazy about the details in her deposition, saying she wasn’t “100 percent positive” the dolly was on a shopping cart and she didn’t know whether the employee brought the dolly into the aisle or where it came from.
The plaintiff also presented video evidence to support her claim. Fred Meyer claimed there was a fact question as to whether Griswold was partially responsible for dislodging the dolly onto her foot, but didn’t claim the video contradicted her testimony. The trial judge granted Griswold summary judgment on her negligence claim and a jury awarded her $2.7 million in damages.
Fred Meyer appealed on several grounds, including arguing the video didn’t show the employee – known only as “Coral” because of the color of her vest – caused Griswold’s injury. But the Washington Court of Appeals shut down that defense immediately, ruling that because the store hadn’t tried to contradict Griswold’s testimony at trial, it had forfeited any chance to do so on appeal.
In an Aug. 16 decision, the appeals court a Washington state rule that requires appellate courts to consider only the evidence and arguments made below, so as to engage “in the same inquiry as the trial court.”
“Fred Meyer made no argument below that the video shows that Coral did not approach the shopping cart with the dolly, or that it does not show Coral placing it on top of the cart,” the court ruled. “Presumably, if Fred Meyer had raised this issue below, Griswold would have had the opportunity to seek testimony from Coral or another Fred Meyer employee.”
Fred Meyer also argued the negligence finding should be overturned, citing a 1992 case in which a several frying pans fell off a shelf, one of them injuring the plaintiff’s foot, after she removed a cast iron pan from the top of the stack. The case was dismissed because the plaintiff didn’t provide any evidence of a dangerous condition, other than her own belief “the pans must have been unbalanced or precariously stacked.”
In this case, the court heard Griswold’s testimony that an employee placed the dolly on top of a shopping cart and shifted the cart to make it fall on her foot, the appeals court ruled. As for Fred Meyer’s claim the lower court should have given greater weight to arguments Griswold was partially responsible for her injuries, the appeals court was unsympathetic.
“Other than implying Griswold should have stood even further away from the cart—though, it does not say how far—Fred Meyer does not explain how Griswold failed to exercise reasonable care by standing a couple of feet away from the cart,” the court said.