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Carolee Donaldson v. Blockbuster

May 26, 2011

CAROLEE DONALDSON, PLAINTIFF AND RESPONDENT,
v.
BLOCKBUSTER, INC., DEFENDANT AND APPELLANT.



Super. Ct. No. 06AS03447

The opinion of the court was delivered by: Mauro , J.

Donaldson v. Blockbuster CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiff Carolee Donaldson filed a negligence action against defendant Blockbuster, Inc., after Donaldson slipped on a wet Blockbuster floor. Blockbuster appeals from the judgment in Donaldson's favor, contending that the trial court erred in (1) denying an instruction on comparative negligence, (2) permitting Donaldson to call Blockbuster's expert in Donaldson's case-in-chief and treat her as an adverse witness, and (3) permitting Donaldson to introduce evidence of subsequent remedial conduct by Blockbuster.

Blockbuster fails in its burden to show miscarriage of justice or prejudicial error. We will affirm the judgment.

FACTS

Donaldson's accident occurred around 5:00 p.m. on Friday, December 30, 2005, during a busy holiday weekend at Blockbuster. It was damp and rainy, and the parking lot was wet. Blockbuster placed mats on the floor to catch water that customers carried in on their shoes and clothing as they entered the store. Some of the water accumulated at the end of the mats where the walking surface transitioned onto a tile floor.

Donaldson entered the store and walked across a temporary mat. When Donaldson reached the end of the floor mat and stepped onto the tile floor, she slipped and fell backward. She put her hand out behind her to break her fall, and she fell on her hand. As Donaldson fell, or right after she fell, she observed water on the floor. Donaldson suffered a serious wrist fracture commonly incurred when falling onto an outstretched wrist.

The evidence at trial indicated that Donaldson did not do anything out of the ordinary as she entered the store; she did not hurry and she was not eating, drinking, or speaking on a cell phone. She was wearing the same shoes that she wore without incident while out shopping earlier in the day, and she was carrying a small backpack-type purse. She did not physically bump into anyone and no one bumped into her to knock her off her path.

After Donaldson fell, two Blockbuster employees, Jean Sullivan and the manager Michael Kjaer, came over to her, and Sullivan used paper towels to wipe up water on the floor. According to Donaldson, Sullivan stated "she was sorry, . . . she should have gotten to that sooner," but at trial Sullivan absolutely denied making such a statement.

Thomas and Sheila Inks entered the store several minutes before Donaldson. Sheila Inks slipped as she entered "because it was real wet going into the store." She grabbed onto her husband to keep herself from falling. Thomas Inks also found the floor quite slippery even though he was wearing New Balance athletic shoes.

Mr. Inks was in line to check out a rental when he saw Donaldson, who was an acquaintance, come through the door. When asked if he observed anything unusual in Donaldson's movements, he replied, "No. She was walking in." Mr. and Mrs. Inks saw Donaldson suddenly drop out of sight behind the counter where the video return box was located. They went to see if she needed help, and Donaldson told them she had slipped. She was on the floor on the transition between the floor mat and the tile. Blockbuster employees "were scrambling . . . with paper towels to clean things up."

Neither Mr. nor Mrs. Inks observed any "wet floor" warning signs. However, according to a Blockbuster employee, James Bertrand, the wet floor signs were ...


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