Florida slip-and-fall plaintiffs suing a business for injuries have to show the defendant had actual or constructive knowledge of the substance in question.
Actual knowledge means defendant was actually on notice about that particular hazardous condition. Constructive knowledge means they should have known about it, either because it was a condition that occurred with regularity or it existed for such a length of time defendant would have discovered it in the course of using reasonable care.
Most of these cases rely on assertions of constructive knowledge. There are many ways plaintiffs can prove this, including by request of internal memos, work logs, time sheets, surveillance video or other elements tending to show this was a regular problem or defense didn’t use reasonable care to routinely examine the site.
However, defense lawyers have a few ways they can fight off having to turn over these documents. One is by arguing the request is overly broad or puts an undue burden on the defense. Another is by asserting the records in question are the result of “work product.” The work product doctrine protects materials prepared by a defendant in anticipation of litigation. The general principle is that if such records were discoverable, lawyers won’t feel free to be creative in drawing up legal strategies with their clients, or they simply wouldn’t keep these written records. This in turn could be detrimental to a client.
Plaintiff filed a lawsuit against defendant department store after she allegedly slipped and fell on a transitory substance on the floor. During the discovery process, plaintiff requested defendant turn over:
- All incident reports prepared or maintained by the company in the ordinary course of business regarding the plaintiff’s accident;
- All records, writings or other memoranda that concerned substantially similar accidents in the area of the floor involved in the three years prior and two years after plaintiff’s accident;
- All complaints pertaining to floor spills in the store two years prior to plaintiff’s accident;
- All documents, repairs, work orders, estimates or other paperwork defense received that related to any changes in the floor area involved in plaintiff’s accident two years before the accident and two years after;
- All work orders reflecting inspection, repair, maintenance or other work done in the area of the accident from the date of accident to present.
Defense objected, arguing the requests were overly-broad. The court ruled on all but one of them, saying the store had to turn these items over. The store eventually turned over two of these requests, but filed a motion asking the court not to make it turn over the rest because it was protected by work-product privilege. An in-camera review was requested, which the judge rejected.
Defendant asked for a review by the appellate court of this decision. The court found there was sufficient evidence to indicate the documents in question were protected under the work-product doctrine. However, while the review was pending, the trial court agreed to review the documents in camera.
The appeals court noted that while prior similar incidents at the store would be relevant to plaintiff’s ability to prove her claim, that’s only one factor to consider in production of work-product records. The plaintiff would need to show she is unable to obtain substantially equivalent information elsewhere without undue hardship.
If you have been injured in an accident, contact the Hollander Law Firm at 888-751-7777 for a free and confidential consultation. There is no fee unless we win.
Marshalls of M.A. v. Witter, Feb. 3, 2016, Florida Third District Court of Appeal
More Blog Entries:
Intern Injury Compensation a Thorny Legal Question, Jan. 23, 2016, Palm Beach Slip-and-Fall Attorney Blog