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Slip and fall at KMart gets thrown out: Man may remain eligible for blue light special

Steven P. Beyer sued the K-Mart Corporation after a fall in Ottawa County.  He claimed that his foot slipped in a puddle on the floor, and that if the Defendant had preserved evidence of the puddle, it would have shown that he was not the first person to track through it.  By establishing the latter fact, Beyer's attorneys thought they could prove that the condition had persisted long enough for KMart employees to have detected and corrected the problem.  We don't know how badly Beyer was hurt, as the Court didn't explain, but it certainly appears that he was short on evidence of fault by store employees.

Beyer's lawyers argued that he should receive an adverse inference about what the evidence would have shown, since the store employees did not preserve any evidence about the condition that caused his fall.  The court found, however, that it was reasonable for the employees to have cleaned up the spilled liquid, rather than "preserving it," and therefore refused to grant Beyer an inference that the preserved evidence would have supported his claim.  The Court's opinion did not explain just how Beyer believed that evidence of the spill could have, or should have been, preserved.  It did not explain whether pictures were taken, for example, and then discarded. 

The court also pointed out that even if Beyer's observation was correct and in fact the puddle had already been stepped in by another, there was no way to discern from this evidence that the puddle had existed long enough for the Defendant to be charged with notice of its existence.

Sadly for Mr. Beyer, perhaps, he encountered the long-standing defense of ignorance:  no one saw anything, did anything, can add anything.  You were hurt?  You think something wrong happened?  Prove it.  We're not helping.  Where this defense doesn't develop naturally, it is an oft-coached strategy for corporate counsel and their employees.  And a strategy that will never be pierced by corporate apologists like Judge Kirsten F. Kelly.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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