Saturday, December 6, 2014

Target Can't Explain Missing Surveillance Footage - Hit with Verdict

Target Stores was hit with a jury verdict for failing to have proper product guards in place, which led to a woman falling and sustaining serious injuries.  Though videos and pictures were expected to exist, which would have showed the incident, Target could not explain their absence.

In the case of McFarland v. Target Corp.,  plaintiff Ms. McFarland, 50, a part-time server, was shopping at a Target retail store on Aug. 4, 2011. McFarland was in the See Spot Save dollar aisle when she stepped on a plastic placement, which had reportedly fallen from the shelf onto the floor, causing her to land on her elbow and fracturing it.

McFarland sued Target on claims of premises liability.  She was well represented by attorney Rocky Wilkins.

According to plaintiff's counsel, Target reportedly admitted that small items routinely fall onto the floor in this area of the store, and that it should have used safety guards on the shelves in this area, because the use of such guards prevented merchandise from falling onto the floor.

McFarland's counsel maintained that Target failed to use these safety guards on all portions of shelving, including the area where these place mats were stocked. Plaintiff's counsel faulted Target for negligently stocking merchandise on its shelves in a manner in which the store knew routinely resulted in merchandise on the floor. Moreover, Target had actual knowledge of an ongoing/pervasive hazard on its premises: merchandise regularly falling from shelves and creating tripping hazards for customers.
McFarland's counsel asserted that Target failed to preserve photographs taken following the incident, which resulted in the court granting plaintiff spoliation inference. The only photographs offered into evidence were taken approximately three to four months after the subject incident, which were taken by Target's attorneys. The photographs reportedly showed merchandise hanging over the edge of the shelving in areas without safety guards.

According to plaintiff's counsel, Target called no witness to definitively testify as to whether or not video footage did or did not exist; as a result, McFarland received a spoliation instruction with respect to the video footage.

The defense maintained that, since McFarland could not prove how long this particular place mat was on the floor, Target could not be liable. The defense asserted that McFarland was contributorily negligent for the accident.

McFarland was taken by her daughter to an emergency room, where she was x-rayed and diagnosed with an avulsion fracture to her left elbow. Her arm was placed in a sling, and McFarland followed up with an orthopedic surgeon.  About a month later, McFarland underwent surgical repair of her fracture, and she eventually underwent a course of physical therapy. No further treatment was administered. McFarland sought to recover approximately $55,000 in past medical expenses and about $11,000 in lost earnings.
McFarland's orthopedic surgeon testified about plaintiff's injury and the treatment that she required. The physician opined that she will require as-needed follow-up care, including therapy and orthopedic exams. She sought to recover about $60,000 in future medical costs.

McFarland said that she continues to experience pain and limited range of motion in her arm, which contains a surgical scar. She sought to recover unspecified amounts in damages for past and future pain and suffering, past and future emotional distress, permanent impairment and scarring. (Plaintiff's counsel requested $1 million in damages, in closing.) McFarland's husband sought to recover $10,000 in damages for his claim for loss of consortium.  The defense did not dispute McFarland's injuries and treatment.

 The jury determined that the defendants were negligent by failing to keep their store in a reasonably safe condition, or by failing to warn of hazardous condition of which the defendants were aware or should have been aware.

The jury determined that the defendants' negligence proximately caused McFarland's injuries, and that McFarland was 20 percent liable for causing her own injuries.

The McFarlands were determined to receive $500,000, which was accordingly reduced to $400,000.

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