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Schwartz v. Wal-Mart – New Negligence Trial Denied

In any personal injury claim, the very basics of what must be proven are:

  • Duty of care
  • Breach of that duty
  • Causation
  • Damages

Explained more thoroughly, defendant must owe plaintiff a specific duty of care. That duty of care must have somehow been breach, and as a proximate result of that breach, the plaintiff incurred injuries that resulted in compensable damages. pumpkins

Absent just one of these elements, the lawsuit will not succeed.

So it’s not enough to prove the other party was negligent. It’s not enough merely to show you suffered injury. You must connect those points and prove your injuries -physical or otherwise – were to such a degree that you should be compensated.

Broward injury attorneys recognize some cases present more complexities than others.

A recent negligence claim pertaining to a customer injury that occurred inside a store became the subject of litigation that has been ping-ponging back and forth in Florida courts, most recently before the Fifth District Court of Appeal.

In Schwartz v. Wal-Mart, defendant store actually admits store employees were engaged in a negligent act against plaintiff. In other words, they concede a duty of care and a breach of that duty. What has been vigorously opposed is the notion that employees’ negligent acts caused plaintiff injury – or at least not injury to the degree she asserts.

According to court records, plaintiff was shopping at a large retail store when she was struck in the back by an ornamental pumpkin. The pumpkin reportedly weighed about 8.5 ounces and was, by several accounts, “squishy.”

The appellate court records don’t indicate an employee threw the pumpkin at her or in her direction, but do indicate defendant store indicated “negligence by employees” resulted in plaintiff being struck in the back by the object.

At trial, plaintiff submitted “considerable evidence” of injury and damages sustained as a result of the pumpkin hitting her in the back. However, defendant store countered with testimony of several expert witnesses, including a biomedical engineer who theorized the degree of force with which the object struck plaintiff would have been “well below” what would be necessary to cause injury.

A jury returned a verdict awarding plaintiff zero damages. The store, they found, was not the legal cause of plaintiff’s claimed loss, injury or damages.

However, trial court then granted plaintiff’s motion for a new trial with regard to the issue of damages for the initial medical evaluation she sought immediately following the accident – but for nothing more.

Plaintiff appealed the order insofar as it barred her from seeking anything beyond her initial medical expenses, arguing she should not be so limited. Defendant cross-appealed, arguing there should be no new trial at all.

Appellate court sided with defense.

Plaintiff had argued the jury failed to at minimum to award her damages for the treatment she had to receive following the incident to determine whether the incident had caused injuries.

But the court noted there are exceptions to this general allowance, and one of those exceptions was triggered with the testimony of the biomedical engineer, who asserted the impact could not have caused injury to plaintiff. Therefore, the court erred in granting a new trial to plaintiff.

Further, plaintiff never specifically asked for reimbursement of her medical expenses relative to her diagnostic care prior to the close of trial and thus failed to preserve her right to argue for it on appeal.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.

Additional Resources:

Schwartz v. Wal-Mart, Jan. 16, 2015, Florida Fifth District Court of Appeal

More Blog Entries:

Maguire v. Providence – Fall-Related Injuries Spike in Holiday Shopping Season, Dec. 23, 2015, Broward Injury Lawyer Blog

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