HM&B Partners Jerry Hamilton & William Edwards’ Recent Win Featured in a Daily Business Review Article

Jerry D. Hamilton and William Edwards of Hamilton, Miller& Birthisel in Miami secured a defense verdict for retail giant Walmart after a Christmas shopper slipped and fell in the vestibule of its Coral Springs store Dec. 24, 2016.

Polly Bassett sued in 2018, seeking about $1.5 million in damages, claiming she had slid on something wet and slippery on the floor while getting a shopping cart. Bassett suffered a torn meniscus in her right knee and injured her hip, back and elbow, according to her lawsuit.

The plaintiff claimed Walmart hadn’t displayed any signs to warn customers of the spillage and alleged staff knew about the hazard and hadn’t cleaned it up. Under Walmart policy, staff are supposed to mop up spills as soon as they notice them.

But Hamilton said his team discovered things weren’t all they seemed.

“I think what Polly Basset didn’t know at the time that she fell was that the entire fall was caught on CCTV,” Hamilton said. ”What she described was that there were large puddle the size of basketballs, but when you looked at the CCTV the floor was clean, dry. There was no indication of any water on the floor at all.”

Armed with footage that depicted the store an hour before and after Bassett’s fall, Hamilton said he watched about 90 other shoppers walk through the same area without incident, and saw no foot marks or cart marks, as might be expected with water spillage.

Credibility became a major issue for the plaintiff, particularly during cross-examination, according to Hamilton, as he presented her with several stills of the CCTV footage.

“It just didn’t add up,” Hamilton said. “You had the CCTV that showed a clean floor, and Polly Basset’s testimony, which said the floor was dirty with puddles of water with foot marks and cart marks, and the water was brownish.”

Hamilton said when he asked Bassett to show him where the water had been, the plaintiff claimed it was out of camera view. But that didn’t compute with her story, the way Hamilton saw it, and he asked, ”If it’s out of camera view, then you couldn’t have slipped on it because we have a view of you falling. So where is that you stepped that caused you to fall?”

In Hamilton’s view, it didn’t help that the plaintiff couldn’t say for sure what the alleged substance was, how it got on the floor and how long it was there. She suggested that customers might have tracked water into the store as it was wet outside, or that one man walked in with a water bottle and spilled it, according to Hamilton.

From the defense’s perspective, it appeared as though Bassett was ”trying to convince the jury to see something that wasn’t there.” So Hamilton opted to go through each frame of the footage and say to jurors, “Here’s what she’s telling you and here’s what you’re seeing. Is this what you’re seeing?”

But not all the footage was good news for the defense.

“There was some video that was showing it looked like it was raining outside or the ground was wet,” Hamilton said. “And it really wasn’t, it was just the angle of the camera and the glare of the camera, but it was very hard to get over the fact that if the ground is wet outside there should be mats placed in the front of the vestibule, and there wasn’t.”

Hamilton and Edwards argued that discoloration in the parking lot was due to black patches of tar from recent resurfacing work on the street, which created the impression of a wet floor.

Plaintiffs attorney Matthew Tucker of Tucker Law in Fort Lauderdale did not respond to a request for comment by deadline.

Prior injuries?

The CCTV wasn’t the only tool in the defense’s repertoire. After some investigation, it emerged that Bassett had failed to disclose a preexisting injury to her back and a prior surgery on her right knee. On the stand, Bassett claimed that was an innocent mistake.

In response to testimony from the plaintiffs doctors that her injury was acute and caused by the fall, the defense brought in an orthopedic surgeon. He testified that the plaintiff’s knee injuries were preexisting and pointed out evidence of fraying in the meniscus, which he said indicated that the damage was degenerative.

“If the injuries were acute, she would have had much more significant complaints and truly not wait until almost six, seven months after the accident to have the surgical procedure she did,” Hamilton said.

The plaintiff, a certified nurse and home health care assistant, had claimed she was unable to work and sought $800,000 in lost wages, according to Hamilton, who discovered through surveillance that she was working. Photographs revealed that Bassett could also walk without a cane that she had claimed she couldn’t walk without.

A second defense expert testified that even if the fall had caused Bassett’s injuries, she could still work without losing any income.

Hamilton used his closing argument to remind jurors that everyone who walks through the courtroom doors to testify swears to tell the truth, the whole truth and nothing but the truth, then pointed to all the times “Mrs. Bassett looked them in the eye and said certain things that were simply not accurate.”

“If people come into the courtroom and they don’t tell the truth and are not straight with you, then they haven’t met their burden,” Hamilton said.

After a seven-day trial that featured reams of medical records from 2016 to 2019, jurors took about two hours to return a defense verdict.

Conflicting testimonies aside, Hamilton stressed he’s empathetic of the fact that Bassett did fall in the store.

“We never want to have people hurt. That’s not what the company is in business for,” Hamilton said. “But at the same time they have to be truthful about what occurred.”

The case was U.S. District Judge Roy Altman’s first civil trial since rising to the federal bench.

The defense has moved to recover $242,800 in attorney fees and costs, as it offered Bassett a $40,000 settlement before the case went to trial.