Archives for 2020

SLIP & FALL defense verdict affirmed in case involving snow & ice near Clinic entrance over challenges to inadequate sanctions for failure to preserve video, admission of weather report, preclusion of other falls, refusal of instructions on snow removal ordinance… Rieger affirmed.

Nancy Nolan had an appointment at Billings Clinic the morning of 2/28/14 during a snowstorm. She and her husband Thomas Garrity arrived early and parked. At 7:40 a.m. she slipped & fell prior to reaching the covered drop-off area to the south atrium entrance and fractured her hip. She sued for $135,000 in stipulated medical bills, pain, and disability; he sued for loss of consortium. They alleged that the Clinic failed to remediate snow & ice on the sidewalk or warn of latent hazards. The Clinic denied liability based on canopies at its entrances and reasonable efforts of its facility team removing snow. The Billings jury found 10-2 that the Clinic was not negligent. (MLW 11/2/19). Nolan & Garrity appeal.

A video camera records the area inside the entrance and the outside under the large covered entrance. A still image showing Plaintiffs entering the Clinic shortly after Nolan’s accident was preserved as part of the accident report, but the video was recorded over after 72 hours. Plaintiffs assert that they were severely prejudiced by absence of the complete video — had it been preserved, “a wealth of information could have been captured.” They asked Judge Rieger to enter default judgment or an order finding that there was ice & snow on the sidewalk. Rieger, agreeing that the Clinic — a sophisticated litigant — breached its duty to preserve evidence, ordered it to pay to reconduct a deposition of its Rule 30(b)(6) witness at which Plaintiffs could question the witness about the video surveillance. (She separately found that Defense counsel had intentionally interfered with Plaintiffs’ ability to conduct fact-finding via deposition of the witness and granted them an additional deposition.) Plaintiffs argue that the 2nd deposition was independently necessary and imposed as a result of Defense counsel “completely disrupting” the first deposition. They argue that Rieger abused her discretion when she failed to impose an independent, meaningful sanction against the Clinic after finding that it breached its duty to preserve relevant video evidence. They ask this Court to remand for a new trial with instructions to fashion a sanction that “will satisfy the remedial and deterrent goals of sanctions for spoliation of evidence.” Spotted Horse (Mont. 2015).

The Clinic asserts that Plaintiffs sought extreme sanctions asserting facts that had not been established and that the missing video would not have established. It argues that Rieger’s sanction was appropriate because she required it to pay for Plaintiffs to re-depose the 30(b)(6) witness regarding several matters including the video; Plaintiffs were allowed to question a Clinic witness at trial regarding the fact that there had been a video, it was in the Clinic’s control and no longer existed; and Rieger instructed the jury that if weaker or less satisfactory evidence was offered it should be viewed with distrust in light of the offering party’s ability to offer stronger or more satisfactory evidence.

Rieger addressed the issue of sanctions for failure to preserve video evidence in a manner well within her discretion. She rejected Plaintiffs’ argument that the Clinic was sanctioned only for issues surrounding a failed deposition and explained that her imposition of costs for the 2nd deposition was “the sanction intended for the lack of preservation of the video surveillance.” She also allowed Plaintiffs to make the jury aware that there had been a video that no longer existed and instructed that it could view the weaker evidence — the still from the video footage — with distrust. She did not abuse her discretion in not imposing further sanctions.

Rieger admitted over Plaintiffs’ objection a certified weather record which showed precipitation beginning the evening of 2/27 and continuing through the evening of 2/28. The Clinic questioned Garrity, utilizing the report, regarding the weather and snowfall recorded that day. Plaintiffs assert that Rieger erred by admitting the report without proper foundation and by allowing the Clinic to cross-examine Garrity on its substance when he had no personal knowledge of it. They argue that the Clinic did not lay a foundation showing that Garrity had any special training, education, or experience in weather that qualified him to testify to the contents of the report and that it and its contents were hearsay. They urge that the fact that a document may be self-authenticating does not relieve the requirement to lay foundation for its contents and to ensure that the hearsay exception has been met, and that whether a document is self-authenticating is irrelevant to whether it may be used with a witness with no personal knowledge of the contents.

Rule 902 provides that extrinsic evidence of authenticity is not a condition for admissibility of a document bearing a seal of a government department. Lindell (Mont. 1989). The weather report satisfied 902(4) because it was certified by the custodian of the public records: the Data Administrator for the National Centers for Environmental Information. It also satisfied the Rule 803(8) public records hearsay exception. Both rules are methods through which authenticity is taken as established for purposes of admissibility. Omyer (Mont. 2016). Garrity was not testifying as an expert about the snowfall; as a self-authenticating document, the report gave that information and did not need further foundation. Plaintiffs assert that Garrity could not testify to the weather report’s contents pursuant to Rule 602 because he did not have personal knowledge of it. But the Clinic was not utilizing him to establish admissibility of a document that was already admissible, and he was not asked to testify to any information not apparent from the document. It used the report to question him on his knowledge of the weather on the date at issue. Rieger did not abuse her discretion by admitting it.

Plaintiffs assert that Rieger erred when she did not admit evidence of 6 other falls the same day or the day before Nolan’s fall. She reasoned that they were not similar to Nolan’s as they occurred in parking lots rather than on sidewalks or at sister facilities not on the main hospital campus. Plaintiffs assert that they were relevant and similar to Nolan’s fall because factual distinctions do not raise a “substantial dissimilarity.” Kissock (Mont. 1999). The Clinic points out that Rieger did allow them to introduce another similar accident on a sidewalk at the Clinic the same day and appropriately excluded the others.

Evidence of other falls is not admissible to prove negligence. Richardson (Mont. 2006); Kissock. It is admissible to show existence of danger, defect, or knowledge. Id. The prior accident must be “substantially similar to” and “not too remote from the accident in question.” Kissock. Kissock reversed a decision disallowing evidence of a slip & fall that occurred a few days prior to Kissock’s accident in the same parking lot, concluding that the jury should have been able to hear evidence of the prior accident even if it was days apart and in a different location to determine if a reasonably prudent defendant, having notice of a prior accident, might have taken precautions against future accidents. Here, Plaintiffs presented the other falls to refute the Clinic’s defense that it had a “very good and competent team” that conducted snow removal and that it exceeded requirements of the snow removal policy “many, many times.” Plaintiffs’ counsel told the Court that the evidence of other accidents “establishes that the policy is not working.” Plaintiffs attempted to use the other accidents to show that the Clinic was not meeting its duty of care — an inappropriate purpose. Richardson. The Clinic did not assert that it was unaware of the accumulating snow or claim that slippery sidewalks were not dangerous. Because Plaintiffs did not introduce the evidence to prove notice of the condition or existence of a danger, as in Kissock, Rieger was well within her discretion to disallow it.

Rieger did not err in not instructing on the Billings ordinance requiring property owners to remove snow from sidewalks within 24 hours of snowfall. Plaintiffs assert that it set forth a duty that applies to the Clinic, and that Rieger should have instructed the jury that if it found that the Clinic violated the ordinance, it was negligent per se. Rieger found the ordinance inapplicable to establish negligence per se. She allowed Plaintiffs to offer evidence that there was an ordinance relating to removal of snow from walkways such as those at the Clinic, but refused to admit “conclusory evidence” that it violated the ordinance unless there was proof of a violation, such as adjudication through a competent court. As the Clinic points out, the snowstorm was in progress when Nolan came to the Clinic and there was no evidence that it violated the ordinance. The instructions given were a full & fair statement of the law.

Baker, McGrath, McKinnon, Shea, Rice.

Nolan and Garrity v. Billings Clinic, DA 19-664, 6/30/20.

Sean Johnson (Johnson Law Firm), Spokane, and Chad Freebourn (Roberts/Freebourn), Spokane, for Plaintiffs; Lisa Speare & William Speare (Speare Law Firm), Billings, and Jon Moyers (Moyers Law), Billings, for the Clinic.