Michelle Hodge and her son, Jessee, went to a Wal-Mart store to buy a mirror. Upon arriving at the mirror display around 6 p.m., she noticed the mirrors were “in a state of disarray.” “The area was a mess,” she noticed.

Some of the mirrors were located on an upper shelf about 6 feet off the ground, slanted against the back of the shelf, restrained by a lip on the shelf one and a half inches high.

Purchase Bob Bruss reports online.

Hodge realized she needed to move the mirrors around to examine them. As she placed little Jessee on the floor, when she stood up she was struck by several mirrors that fell from the upper shelf, suffering substantial injuries.

A woman that Hodge had been talking with just a moment earlier exclaimed, “Oh my God, those mirrors just fell on that girl.” Hodge had not moved or touched the mirrors.

The first employee on the scene was assistant manager Mary Bowman who heard the glass shatter over Hodge. After some time passed, the witness asked Bowman if she could leave. When Hodge noticed the witness leaving, she told Bowman that the witness had seen everything and urged her to get the witness’ name and contact information.

Bowman refused, pointing to a camera at the end of the aisle, stating, “Everything we need will be on that camera right there.” After another Wal-Mart employee came to assist, Bowman went to look for the witness but couldn’t find her. Later, it was discovered the security camera did not capture the events on tape.

Aware that customers disorganized the mirror displays during the day, Wal-Mart had employees check the display periodically. Jason Chalmers provided uncontradicted testimony that he checked the mirrors around 3:30 p.m., two and a half hours before the accident.

Hodge sued for her injuries due to the alleged negligence of Wal-Mart. She argued the mirror display was dangerous and assistant manager Bowman intentionally failed to get the name of the witness because that person could describe what happened.

If you were the judge would you rule Wal-Mart is liable to Hodge for negligence in failing to maintain a safe mirror display and allowing the witness to leave because she could describe what happened?

The judge answered no!

Regarding Hodge’s spoliation of evidence claim against Wal-Mart for allowing the sole witness to leave without obtaining her name and contact information, the judge began, the evidence presented by Hodge does not show the manager willfully lost the witness’ potential information.

Neither party has a legal duty to obtain the names of witnesses to an accident, the judge explained. For a defendant to be liable for spoliation of evidence, he continued, that evidence must have first been obtained and then willfully lost or allowed to disappear.

As for the lack of an operating security camera, the judge noted, a retailer has no legal duty to record everything happening in a store and there was no evidence presented by Hodge that Wal-Mart intentionally destroyed the camera’s tape.

More important, Hodge alleged Wal-Mart maintained an unsafe mirror display, the judge continued. However, employee Jason Chalmers testified he checked the mirrors just two and a half hours before the accident and observed they were then in safe condition, the judge emphasized.

For a retailer to be liable for negligence to an injured customer, the judge explained, there must be evidence the store owner knew of a dangerous condition and failed to correct the problem or at least warn of it. In order to prove negligence, the judge noted, Hodge must prove why and how the accident happened.

Without evidence of negligence by Wal-Mart, and knowledge of a dangerous condition, which caused the injury to Hodge, there can be no liability, the judge ruled. “Even assuming that she established that an unsafe condition existed in the display when she arrived, she failed to provide sufficient evidence of how much earlier the condition arose, and thus cannot establish that the condition was in existence for a time sufficiently long for a jury to conclude that Wal-Mart was negligent in addressing it,” the judge concluded.

Based on the 2004 U.S Court of Appeals decision in Hodge v. Wal-Mart Stores Inc., 360 Fed.3d 446.

(For more information on Bob Bruss publications, visit his
Real Estate Center
).

***

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