Wade Clark Mulcahy LLP

<p style="text-align: justify;">A recent decision from the Pennsylvania Superior Court highlights the importance of ensuring clear and thorough testimony from witnesses both during depositions and at the time of trial. In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2020/12/Wilson-v.-Autozone-Stores.pdf">Wilson v. Autozone Stores</a>,</em> the plaintiff sustained injuries in a fall outside an Autozone. At trial, plaintiff testified he noticed a “gooey, slippery” substance on his shoes as he entered the store and assumed he stepped in something in the parking lot. He alerted an Autozone employee and continued shopping. Later, plaintiff left the store and slipped on oil near the curb. He then noticed an area of oil on the curb directly in front of the Autozone. He testified that he did not know where the oil on his shoe came from until after fell.</p>
<p style="text-align: justify;">The jury returned with a verdict finding Autozone fully liable for the harm. Autozone appealed, asserting that a judgment notwithstanding the verdict should have been entered because the evidence showed the danger presented by the oil was both open and obvious. Autozone relied on an oft cited case from the Pennsylvania Supreme Court holding there is no duty to warn invitees of open and obvious conditions. See <em>Carrender v. Fitterer,</em> 469 A.2d 120 (Pa. 1983).</p>
<p style="text-align: justify;">Plaintiff argued that his testimony could not be construed to stand for the proposition that he observed the oil on his way into the store because he repeatedly stated he did not. The Superior Court agreed with the plaintiff.</p>
<p style="text-align: justify;">Autozone then argued that Wilson’s last statement on the issue should control pursuant to <em>Stewart v. Ray,</em> 76 A.2d 628 (Pa. 1950). The Superior Court acknowledged that <em>Stewart s</em>tands for the “settled principle that where a witness has testified to two different versions or has made inconsistent and contradictory statements and is confronted with that contradiction, his final statement” controls. <em>Id.</em> at 632. However, application of <em>Stewart</em> is limited to those cases in which the witness is directly confronted with the contradictory testimony. See e.g. <em>Girard Trust Corn Exchange Bank v. Phila. Trans. Co</em>., 190 A.2d 293, 296 (Pa. 1963). As applied, here the testimony was insufficient to trigger <em>Stewart,</em> since plaintiff was not asked whether he saw the oil spill before entering the store and reiterated numerous times that he only observed oil on his shoe on his way into the store.</p>
The case serves as a stark reminder of the importance of asking the appropriate questions at depositions and trial to fully vet the observations of a witness, and paint a full picture of the scene.

Thanks to Jennifer Seme for her contribution to this post. Please contact <a href="mailto:Haquino@wcmlaw.com">Heather Aquino</a> with any questions.