Before a slip and fall accident lawsuit goes to trial, the parties to the lawsuit – the “plaintiff” who filed the lawsuit and the “defendant” who is being sued – must investigate the facts and the allegations each party is making against the other. This investigation is conducted through a formal process called “discovery.” Depositions are part of the discovery process. A deposition is an interview, in which the lawyer for one party questions the opposing party, under oath. Witnesses, employees, and other persons with knowledge of the slip and fall incident also may be deposed.
Sample deposition testimony of store manager
Assume, for example, that the following (common) situation has led to a slip and fall lawsuit: “Mr. Smith” slipped in a grocery store and developed a shoulder injury called adhesive capsulitis. Mr. Smith alleges that he rounded the end of one of the aisles in the grocery store, continued into the next aisle, and then stepped in some orange juice that had spilled. There was a yellow barrier on one side of the puddle, but Mr. Smith could not see it when he was turning the corner into the aisle. In addition, just before the accident, a store employee who was giving out free samples distracted him. The store owners contend that they properly warned of the spill, which was in the process of being cleaned up when the slip and fall accident occurred. The owners also argue that even without the barrier, Mr. Smith should have seen the spill.
Below is a series of questions that the plaintiff’s lawyer might cover in the deposition of the store manager in this slip and fall case.
- The witness’s background, including his employment history with the defendant
One reason to ask about a witness’s educational background is to round out your picture of the witness and get a sense as to how he might “play” to a jury. Another reason is to find out whether any advanced education or special training might qualify the witness to testify as an expert on the defendant’s behalf. The plaintiff’s lawyer will ask about criminal convictions or pleas to gain evidence that possibly might be used to impeach the witness’ credibility.
Q: Please describe your educational history to me, beginning with high school.
Q: Have you ever been convicted or pled guilty to a crime other than a minor traffic violation?
Q: What is your business address?
Q: What jobs have you held since high school?
Q: When did you begin working for the defendant?
Q: Have you ever worked for other grocery store chains?
Q: What did you do for them?
Q: What is your title with your present employer?
Q: How long have you held the title “store manager”?
Q: What other titles have you held since you began working for the Defendant?
Q: What are your job duties as Store Manager?
Q: Who do you report to within the company?
Q: And who does he report to within the company?
Q: What sort of training have you had that would qualify you to work as the store manager?
- Store inspection program and practices
Those who manage stores open to the public normally take active steps to ensure that slip and fall accidents do not happen on their premises. In a grocery store, this usually means a specific employee is assigned to walk through the store on a regular basis and look for obstructions, spills, and so on. Normally these regular inspections are documented on a form of some sort. In addition, there usually is a separate procedure for cleaning spills. The following questions are designed to elicit information about these sorts of procedures.
Q: How many times per day is the floor in the store cleaned?
Q: What specific procedures are followed in cleaning the store each day?
Q: Are those procedures written down anywhere?
Q: Is the store regularly inspected for hazards during business hours?
Q: What employees are responsible for inspecting the store?
Q: What are their job titles?
Q: Who was responsible for inspecting the store the day of my client’s slip and fall?
Q: Are there written procedures that explain what an employee is supposed to do when inspecting the store during business hours?
Q: Who wrote those procedures?
Q: What are they called?
Q: I’m handing you what I’ve marked Exhibit 1. Are those the procedures?
Q: And were those procedures followed on the day of my client’s slip and fall?
Q: How do you know?
Q: After the store is inspected, is that fact recorded anywhere?
Q: Do employees who are responsible for regularly inspecting the stores have to undergo any training to do their job properly?
Q: And what does that training entail?
Q: If I ask the employees who were on duty that day whether they were trained, what will they tell me?
- Store inspection practices at other stores
Q: You told me previously you worked at another grocery chain?
Q: What was it called?
Q: For how long did you work there?
Q: At the Grocery Time store, were you familiar with the store inspection procedures?
Q: How did you become familiar with those procedures?
Q: Did the procedures change during the time you were at the Grocery Time store?
Q: Please describe the procedures to me.
- The slip and fall event – preliminary questions
Q: Tell me what happened on the day my client, Mr. Smith, allegedly fell in your store?
Q: How did you find out Mr. Smith had become injured?
Q: What did you do?
Q: What happened next?
- The condition of the store
Q: Mr. Smith fell in aisle 11, is that right?
Q: Are you familiar with the condition of the floor in aisle 11 on the date of Mr. Smith’s injury?
Q: How is the floor in the area of aisle 11 constructed?
Q: Do you know what the tile is made of?
Q: What was the condition of the tile in the area of aisle 11 in the day before my client was injured?
Q: You told me earlier in the deposition that the floor is mopped once a day. Is that correct?
Q: Was it mopped on the day of the injury?
Q: How do you know that?
Q: Let me hand you what I’ve marked as Exhibit 2. Is that the “cleaning sheet” for the date of Mr. Smith’s slip and fall event?
Q: What does it say about the time the floor was mopped?
Q: Had the floor of the store dried before the Plaintiff was injured?
Q: Was there anything unusual about the lighting in aisle 11?
Q: Was the area in aisle 11 lit with fluorescent lights?
Q: And the lights were in working order?
Q: Does the tile on the floor in the area of aisle 11 have any sort of non-stick surface?
Q: And spills do occur from time to time?
Q: What steps do you take to prevent customers from slipping on spills in your store?
Q: Is there anything else you do to prevent customers from slipping on spills in your store?
Q: What other ways do you find out about spills, other than the regular inspections you told me about?
Q: How do you know that employees are always on the watch for spills?
- Whether inspection procedures were followed
In the previous section, the witness testified that the area of the floor where the plaintiff was injured was mopped earlier in the day. The questions in this section are designed to find out whether the store’s usual cleaning procedures were followed.
Q: Please take a look again at Exhibit B, which is the “cleaning sheet.” Do you see the entries for the day of my client’s fall?
Q: The chart has a line for the daily mopping?
Q: The chart for each day also includes a line next to each hour in the day?
Q: What are the lines for?
Q: Each hour, an employee inspects for spills?
Q: What other problems?
Q: Exhibit B contains sheets for each day of the two months leading up to the accident?
Q: Flip through those sheets—do you see any in which there are not initials next to each hour in the day?
Q: That’s the day of Mr. Smith’s injury?
Q: When is the last entry on the day of Mr. Smith’s injury?
Q: Can you tell by the initials which employee made that entry?
Q: Do you know when that employee’s shift ended?
Q: What employee took over?
Q: And then that employee was responsible for inspecting the store each hour from 11 a.m. on until his shift ended?
Q: Did he do that on the day of Mr. Smith’s injury?
Q: Yet he didn’t initial the cleaning sheet?
Q: Do you know why not?
Q: Have you done anything to find out why the cleaning sheet is blank after 10 a.m. for the day my client was injured in a slip and fall accident?
Q: Doesn’t the fact that the cleaning sheet is blank mean that your employees failed to inspect the store for spills as you require them to do?
Q: Do you know whether another employee discovered the spill?
Q: And you don’t know whether or not this employee discovered it during the required hourly inspection, do you?
Q: Do you know when the spill was discovered?
Q: Do you know when Mr. Smith fell?
Q: And the store is supposed to be inspected at the top of each hour?
Q: Do you know how long before Mr. Smith fell that the spill was discovered?
Q: You don’t know which store employee saw the spill first?
Q: And you don’t know when that first employee first discovered it?
- Facts about the spill
So far in the deposition, the substance on the floor has not been identified. The questions about the slip and fall event continue in this section with these additional questions about the substance on the floor.
Q: Did you see the spill at any time before Mr. Smith fell?
Q: What was it that was spilled on the floor?
Q: How do you know it was orange juice?
Q: Which employees did you speak to?
Q: And what did he tell you?
Q: Did you see the spill after Mr. Smith fell?
Q: Why not?
Q: Mr. Smith landed in the orange juice spill, didn’t he?
Q: What other store employees saw the spill before Mr. Smith fell?
- The witness’ knowledge of the slip and fall
Q: You did not see Mr. Smith slip and fall, is that right?
Q: Did you hear him slip and fall?
Q: How did you find out about the slip and fall?
Q: Where were you at that time?
Q: Where is your office in relation to aisle 11?
Q: Was your door open?
Q: You said you heard a “commotion.” Could you be more specific?
- The scene after the slip and fall
The defendant will argue that the plaintiff was being careless when he slipped in the orange juice. According to the defendant, a store employee named Mr. Johnson had placed a yellow caution sign on the floor when he discovered the spill, and was in the process of getting a mop when the slip and fall occurred. The plaintiff will argue that the caution sign marked only one side of the spill, the side opposite the end of the aisle. As the plaintiff rounded the corner and turned into the next aisle, he slipped before seeing the caution sign. In addition, just before the slip and fall occurred, the plaintiff had been hailed by another store employee to his right, who was handing out free food samples. This additional distraction prevented him from seeing the spill. In this section of the deposition, the questioning turns to the scene of the slip and fall. The goal is to see whether the witness agrees with the plaintiff’s version of the events as to: (a) the lack of a barrier on both sides of the spill and (b) the existence of the store employee handing out free samples.
Q: You arrived at the scene shortly after the slip and fall occurred?
Q: How many yellow barriers were there?
Q: The purpose of such barriers is to put customers on notice of potential danger?
Q: How many barriers does the store have?
Q: Are they all kept in the same location?
Q: Where is that?
Q: When you arrived at the scene after Mr. Smith’s slip and fall, was he between the barrier and the end of the aisle?
Q: Do you know the placement of the barrier before Mr. Smith fell?
Q: If I wanted to find out about the exact placement of the barrier before Mr. Smith fell, would the best way be to ask Mr. Johnson, the store employee who set it up?
Q: Mr. Johnson said there was another store employee handing out samples in the area where he fell. What do you know about that?
Q: What was that employee’s name?
Q: Did you talk to this employee about Mr. Smith’s slip and fall?
Q: Tell me about that conversation.
Q: Did you ask her if she said something to Mr. Smith just before he fell?
- The witness’s actions to aid the plaintiff
Two of the main goals of this type of deposition are to learn new facts about the occurrence and to pin down the witness about those facts. In order to find out what the witness observed, it is necessary to take him through the slip and fall occurrence step-by-step. These questions focus on what the witness did after arriving at the scene of the plaintiff’s slip and fall accident.
Q: What did you observe as you arrived at the place where Mr. Smith fell?
Q: Was Mr. Smith moving?
Q: Was he making any sounds?
Q: Did he appear to be in pain?
Q: Was he moaning?
Q: He was a guest at your store, wasn’t he?
Comment: This question is a subtle reminder that even though the plaintiff is now suing the store and the witness (the store manager) might naturally be hostile to the plaintiff’s position, at the time of the fall, the situation was different: the plaintiff was a store customer and the store manager would naturally want to aid him. In this way, it sets the witness up to answer the next question honestly.
Q: And you took steps to help him?
Q: What did you do?
Q: Was he holding his shoulder?
Q: What did you do next?
Q: Why did you call for an ambulance?
Q: One of the reasons you called for an ambulance was that Mr. Smith seemed to be in pain, correct?
Q: How long did it take for the ambulance to arrive?
Q: What did you do next?
- Admission: use of marketing displays
In many slip-and-fall cases, the defendant will argue that the plaintiff was not paying attention and should have noticed the particular risk. In the following section, the plaintiff’s lawyer tries to get the witness to admit an obvious point: that the store owners set up their “free sample” displays intending that they be seen and noticed. This admission will help bolster the plaintiff’s contention that he was distracted by the display.
Q: At the time Mr. Smith fell, there was a woman handing out “free samples”; is that correct?
Q: What is her name?
Q: Did she prepare the display herself?
Q: When she set up the display, was she following your instructions?
Q: What’s the purpose of handing out free samples?
Q: Am I correct that you set up free-offer displays in areas which you know will be trafficked by customers?
Q: You wanted customers to notice the display?
Q: And you want customers to accept the offer of a free sample?
Q: When setting up your display, one of your goals is to do it in such a way that customers will notice it?
- Admission: plaintiff’s status as invitee
In many cases, the fact of the plaintiff’s status will not be in dispute.
For example, in a grocery store slip and fall lawsuit, it is unlikely that the defendant would dispute that the plaintiff had permission to be in the store and was there in order to shop. Since the fact will probably not be in dispute, it can be handled by stipulation, by use of a request for admission, or by questions during a deposition.
Q: Was Mr. Smith at the store alone?
Q: Had you ever seen him in your store before?
Q: He was in the store to shop?
Q: Did he have a grocery cart filled with groceries?
Q: Let me ask you again: Was Mr. Smith in the store to shop?
Q: And he had permission to be in the store?