FOR BREAKING NEWS VISIT WWW.QNS.COM APRIL 12, 2018 • QUEENS BUSINESS • THE QUEENS COURIER 45
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THE RELUCTANT LITIGANT
Q: A half a year ago, as I exited a grocery store, I slipped and fell. After falling,
I noticed water on my hand and asked the cashier where water would be coming from.
She replied, “The only thing that’s over there is the ice machine. It’s broken. I asked
someone to clean up the water.” The cashier seated me on a bench, returned with a
supervisor and again stated that the ice machine had been leaking.
The manager remembers seeing a small amount of water on the floor just
after my fall. She recalls previous occasions when the freezer had leaked and water had
accumulated in front of it. The store’s accident report says that I fell on water and that
the supervisor then had a wet spot mopped.
Nowadays, the cashier is unable to remember the particulars, but she does
recall filling out and signing a document recording her memories at the time. In this
document, the cashier says that she watched me fall in an area that had been checked
by the maintenance crew approximately one hour prior to the incident. The cashier
wrote, “Ice machine is always leaking.”
A: Generally, the requirements for admission of a memorandum of a past
recollection are that the witness observed the matter recorded, that the recollection was
fairly fresh when recorded or adopted, that the witness can presently testify that the
record correctly represented her knowledge and recollection when made, and that the
witness lacks sufficient present recollection of the recorded information. On this basis,
it appears that the cashier’s written statement is admissible in court.
You appear to have a very strong case that the store failed to maintain the
premises in a reasonably safe condition and that it created or had actual or constructive
notice of a dangerous condition. But please don’t ever again wait a half a year. Consult
an attorney now without further delay.