You recall an injury sustained by a fall you took in the parking lot of a big-box store and you’re trying to prove that it was the store’s fault. What evidence will be sufficient in court? Well, that question is difficult because, like most negligence cases, there usually is not a single piece of evidence that conclusively shows fault. Recently, the 7th Circuit Court of Appeals revisited the burden of proof a plaintiff must furnish to prevail. But, because the plaintiff’s case was unsuccessful the analysis by the court merely leaves practitioners with a list of possible ways in which evidence is insufficient.
In Piotrowski v. Menard, Inc, the court of appeals held that: (1) customers must show that placement of the injury-causing object was due to the store owner’s negligence, and (2) that the store owner had actual or constructive notice of the dangerous condition that caused his/her injuries. The holding relied on precedent found in Zuppardi that required a plaintiff to show that “the foreign substance was related to the defendant’s business and (2) “offer some further evidence, direct or circumstantial, however slight, such as the location of the substance or the business practices of the defendant, from which it could be inferred that it was more likely that defendant or his servants, rather than a customer, dropped the substance on the premises.” The Zuppardi court goes on to give a lengthy list of all the events that could have set forth sufficient evidence. But, it may be misplaced to concluded that showing one of the hypotheticals would have been dispositive to the Zuppadri’s case.
Both holdings suggest that the court is looking for evidence that specifically provides a way in which the defendant caused the harmful condition, not merely speculation. In both cases the plaintiffs only demonstrated possible ways in which the conditions could have been created. This was insufficient. In short, a plaintiff must show either (1) the defendant negligence caused dangerous condition; or (2) the defendant had actual notice of condition and did nothing; or (3) the defendant had constructive awareness of the condition and did nothing. This is a high bar.