Saturday, September 18, 2021

For The Federal Court Personal Injury Lawyer

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.


Anonymous said...

Actually, we should let the business make the "policy" choice to which the judge alludes.

And then the judge and jury make their respective decisions based upon the facts and the law.

The judge has the obligation to determine whether there is a genuine dispute of material facts. If not, the judge elected or not decides the case. But this is not a "policy" choice.

If there are these issues, then the jury applies the law given to them by the judge to the facts they've found. The jury is just deciding who bears the blame, or if any blames exists. Again,not a "policy" choice.

Anonymous said...

Nice guest post.

11:26 --- if you don't think a jury identifying the contours, extent, and value of duty and breach (if any) is going to ultimately inform corporate policy, then you are naive. If you think it will, but that the driving force (the jury's verdict) is only a case-specific determination and thus not a true "policy" you are quibbling. Those are the only two options.