TORTS | PREMISES LIABILITY | PERSONAL INJURY

Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.

36-2-7498 Wierzbowski v. Sam’s East, Inc., App. Div.

Issue:  Did Sam’s Club Have Notice of a dangerous condition on their commercial property?

Decision:  Plaintiff failed to meet his evidentiary burden of proof at the Summary Judgement stage providing facts to support his claim regardless of the fact that the floor mat was not preserved as evidence by Sam’s East.

Key Issue No. 1:  If any type of evidence exists in your case, which is in the custody control and possession of a potential defendant after the alleged tortious event, you have to retain an attorney immediately and send a letter demanding the evidence be preserved!!!

Key Issue No.2:  Most attorneys these days still wait almost up to the 2 year statute of limitations to file suit.  At Hark & Hark we do not agree with this theory at all.  If you wait this long much evidence and memories may be destroyed or forgotten or disappear (as was the case here).  Once we have performed enough investigation to secure the nature and extent of possible injuries and facts, we put the case into suit immediately.  This starts the clock to trial running, and enables formal investigations techniques allowed by Court Rules and case law.

Facts:

Plaintiffs Ronald and Sandra Wierzbowski appealed the summary judgment dismissal of their personal injury action against Sam’s East, Inc. and Wal-Mart Stores, Inc. Plaintiffs contended that the motion record established that genuinely disputed issues of fact existed as to whether defendants either caused or had constructive notice of the turned-up corner of an anti-slip mat – the condition that caused plaintiff Ronald Wierzbowski to trip and fall – and that the trial court erred by ruling to the contrary. Plaintiffs also contended that defendants’ summary judgment motion should have been denied because defendants deprived plaintiffs of the opportunity to inspect the mat. Ronald tripped and fell in a Sam’s Club store in January 2010. In November 2011 plaintiffs commenced their personal injury action. There is no evidence in the record that during the intervening year and ten months plaintiffs notified defendants of their intention to file a lawsuit, demanded that defendants preserve the mat involved in the accident or demanded that defendants permit plaintiffs and their representatives to inspect the mat. Plaintiffs produced no evidence that Sam’s East, Inc. voluntarily undertook to preserve the mat, accepted responsibility for the mat with knowledge of a pending or potential lawsuit,or disregarded a specific request from plaintiffs to either preserve the mat or permit them to inspect it. Consequently, plaintiffs were not entitled to a spoliation inference. The appellate panel affirmed the dismissal of plaintiffs’ lawsuit.

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