In any kind of personal injury case, it is important to be as precise as possible in your recollection of events. Obviously, nobody has a perfect memory, and you may be called to testify about an accident months or years later. But the words you use are taken seriously and literally by the court. You cannot expect a judge or jury to “know what you meant,” especially when your testimony undercuts a key argument in your case.
Hartman v. Clark
Consider a recent slip-and-fall case from here in Georgia. The plaintiff was patronizing a restaurant owned by the defendant. In a deposition, the plaintiff said she entered the restaurant’s bathroom, and after about 5 or 10 minutes she exited one of the stalls and “fell backwards,” causing injuries to her back and ankle.
The plaintiff claimed in her personal injury lawsuit that she “slipped on water” that the defendant should have known about and cleaned up. However, at the deposition she said “there was no water on the floor when she entered the restroom” and entered the stall. The trial court subsequently granted the defendant’s motion for summary judgment.
The Georgia Court of Appeals agreed with that decision. In premises liability cases such as this, the plaintiff must prove the defendant had “superior knowledge” of a hazardous condition, such as the pile of water in the bathroom. Knowledge may be actual or “constructive,” that is the defendant should have discovered the water through the exercise of “reasonable care.”
For instance, most retail establishments, including stores and restaurants, should have some sort of inspection policy to ensure public areas are free of spills or other hazards. If a store fails to follow its policy, that may be grounds for establishing constructive knowledge. Similarly, if a spill is left untouched for several hours, the store may be liable regardless of its policy.
But in this case, the appeals court observed, the water in the bathroom where the plaintiff slipped could not have been there more than 10 minutes. After all, the plaintiff “testified unequivocally that no water was on the floor when she entered the restroom 5 to 10 minutes before she fell.” The court said 10 minutes was not enough to establish the defendant’s constructive knowledge of the water.
The plaintiff argued that she meant to say she “did not see the water” upon entering the stall, not that there was no water present. But the Court of Appeals said “her testimony does not permit such interpretation.” Not only was the plaintiff’s deposition testimony clear that no water was present, she could not offer any explanation for how it got there while she was in the stall. The plaintiff testified she did not see anyone else in the bathroom at the time. Nor did she later modify or amend her testimony prior to her arguments before the Court of Appeals. Accordingly, the appeals court said the trial judge was right to dismiss her lawsuit.