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The Law Print Page

Photo Finished
by Michael Blahy

A New Years fall ended with a resolution not in favour of the injured party and an attorney possibly facing sanctions.

On New Years Day, 2017 Linda Waldon (Linda) was shopping at a Wal-Mart store in Crawfordsville, Indiana. She was looking at some clothes hanging on a rack, when she slipped on a plastic hanger beneath or around the rack. She experienced “back, neck, and head injuries requiring medical care” and her husband Steve Waldon endured the “loss of consortium and companionship”.

The Waldons filed a suit in Indiana state court, which Wal-Mart successfully had removed to a federal court. The suit alleged that “ Wal-Mart failed to provide a safe environment for its shoppers and is liable for their injuries”.

Wal-Mart has a policy where employees are to “zone” their work areas, meaning that before and after breaks and during their shift, employees are required to walk through their department, looking for hazards on the floor, picking up items and returning them to where they belong.

For discovery, Wal-Mart provided affidavits saying “that no Wal-Mart employee was notified of any potential hazards on the floor, including hangers” in the area where Linda fell. An employee also mentioned that she “zoned” the area five to ten minutes prior to the fall and didn’t notice any hazards.

During the deposition of Linda, she admitted not having evidence or personal knowledge of:

  • how long a hanger was on the floor before she fell

  • the last time an employee inspected the department and clothing racks before she fell

  • that Wal-Mart knew a hanger was on the floor before she fell

Based on its affidavits, and weak evidence presented by Linda, Wal-Mart moved for summary judgement. At this point, the attorney for Linda presented two photographs showing the mess on the floor where Linda had fallen. The district court dismissed the photographs, as one was undated and the other was dated eleven days after Linda’s fall. The district court entered summary judgement in favour of Wal-Mart.

The Waldons appealed.

The U.S. court of appeals reviewed the case. It was determined that Linda was definitely an invitee, therefore Wal-Mart had a duty to protect Linda:

    A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

    1. knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

    2. should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

    3. fails to exercise reasonable care to protect them against the danger.

Evidence provided by Wal-Mart showed that they exercised reasonable care to protect their invitees, but “[t]he Waldons contend[ed] the district court incorrectly applied Fed. R. Civ. P. 56(e) when it uncritically accepted the statements of the Wal-Mart employees and failed to recognize their credibility issues . . . they question the credibility of the WalMart employees’ affidavits given “the substantial debris identifiable in photos of the scene at the time of Plaintiff’s injury. .  .  . the photos are from January 1, 2017, the date of injury.”

The court of appeals ruled:

    Because the Waldons cannot show there is a genuine issue of material fact .  .  . their case cannot survive summary judgment. So we affirm the district court's grant of summary judgment to Wal-Mart.

To make matters worse for Waldon’s attorney, the photographs submitted to the court of appeals had been altered from those on the district court records. One of the photographs had been cropped to remove the January 12, 2017 date, which was on the original.

When questioned about the discrepancies, Waldons’ counsel admits the date stamps were deleted when the photos were reproduced in their separate appendix for this court. The blame was placed on the legal assistant who scanned the photos for the appendix. Wal-Mart noted that of the 248 page appellate appendix, the pages with the altered photographs where the only ones with hand written page and exhibit numbers, and they lacked the district court’s filing information across the top of the page.

Attorneys are responsible for the actions of their staff, but the court of appeals were additionally concerned with Waldons’ counsel’s representations to this court about these photographs. The Waldons contend the photos are their “best evidence” of actual and constructive notice. In the Waldons’ appellate brief their counsel repeatedly says the photos are from the date of her injuries.

The United States court of appeals concluded:

    We order Waldons’ counsel, James E. Ayers, to show cause within 14 days of the date of this decision why he should not be sanctioned under Rule 46 of the Federal Rules of Appellate Procedure for altering the photographs and misrepresenting the record to this court. Additionally, after considering Waldons’ counsel’s response, we will decide whether to forward a copy of this opinion to the Indiana Supreme Court Disciplinary Commission for it to consider whether to institute disciplinary proceedings against him.

(Waldon v. Wal-Mart Stores, Inc. (US Court of Appeals for the Seventh Circuit, Docket: 19-1529))

Decided: November, 2019
Published: December, 2019



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