By: Alaina Fotiu-Wojtowicz
Between forum selection clauses and defendants’ tendency to remove state law claims whenever there is complete diversity, Premises Liability and other personal injury cases end up in federal court more frequently than you might expect. But even so, Judge Altman’s recent 37-page summary judgment order in the Torres v. Wal-Mart Stores East, L.P. case is unusual – not only for its length, but also for its depth of discussion on state-law, premises liability negligence issues.
Torres is in many respects the quintessential slip-and-fall, premises liability case. The plaintiff, Nosleyki Torres, slipped and fell on a puddle of water while shopping at Wal-Mart. The case was removed by Wal-Mart after Mr. Torres filed in Broward County Circuit Court.
Judge Altman’s order is an entertaining discussion of constructive notice, causation, and the type of disclosures required by Rule 26(a)(2) from hybrid treating physician expert witnesses who will testify as to causation at trial. The order comes complete with citations to Eleventh Circuit precedent, both in and out of jurisdiction trial court opinions, John Adams’s correspondence, and perhaps most importantly, “Bill Nye the Science Guy.”
At its core, however, the order reiterates that, even in a federal Court Personal Injury suit, or perhaps especially in such a case, it is the jury's role to determine questions of fact:
Who should decide whether, in weighing its important interest in reducing overhead costs against an invitee’s right to amble freely through un-puddled aisles, Wal-Mart has struck the right balance? A life-tenured judge no one elected? A jury of both parties’ peers? The answer—to us—seems clear.
. . .
If we are, as we were meant to be, a democracy—and if Adams was right in suggesting that everyday jurors are the “heart and lungs” of that democracy—then we should let jurors (not unelected judges) make these policy choices for us.
The entire opinion is worth a read and is available here.
