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Bernice Baynes v. the Home Depot U.S.A.

June 9, 2011


The opinion of the court was delivered by: Schiller, J.


Plaintiff Bernice Baynes slipped and fell while shopping at a Home Depot. Baynes alleges Defendant Home Depot U.S.A., Inc. ("Home Depot")*fn1 negligently failed to clean a slippery substance from its floor. She seeks damages for her medical expenses and pain and suffering. Baynes also requests spoliation sanctions due to Home Depot's failure to retain certain surveillance footage. Home Depot denies liability and also argues that its conduct cannot have caused all the injuries Baynes claims. The Court conducted a bench trial on June 6, 2011. For the reasons stated below, the Court finds in favor of Baynes and will award her damages in the amount of $44,383.61.


A. Baynes's Fall

On December 19, 2007, Baynes and her sister Theresa went to the Home Depot on Columbus Boulevard in Philadelphia to purchase a lightbulb. (See Def.'s Pretrial Mem. 1.) Baynes stated that she was "looking all around" as she made her way through the store. She testified that she was looking up toward signs hung from the ceiling that identify aisle numbers, and that she also noticed the store's Christmas decorations as she proceeded to the lightbulb aisle. Baynes slipped and fell as she made a right turn into the aisle. Laying on the ground after she fell, she noticed a six-inch puddle of what appeared to be grease covering the portion of the floor where she had slipped.

She initially felt pain in her tailbone, where her buttocks and lower back first struck the floor. Baynes also testified that she broke her fall by placing her hands behind her. She remained on the ground as store employees arrived to assist her. These employees included Matthew Dietrich, Michael Gillman, and Debra Feeney. All three testified at trial that they saw Baynes laying on the ground, and that Baynes appeared to be in pain. Dietrich saw the substance that Baynes said caused her to slip. He testified that the substance appeared to be mucus. Gillman also saw the substance, and testified that he believed it was spit. Feeney had gone for help after hearing a "ruckus," and then knelt by Baynes. Feeney testified that she asked Baynes and Baynes's sister what had caused the accident. Feeney then left to get towels, which she used to clean the substance from the floor while Baynes was still on the ground. (See also Pl.'s Ex. 6, Home Depot Surveillance Video [Home Depot Video].) Feeney testified that the substance may have been "green spit" and that there "wasn't that much" when she returned to clean it from the floor.

Gillman, an assistant manager, wrote down information from Baynes and noted it on a Home Depot accident report form. (See Pl.'s Ex. 11, General Liability Worksheet.) The form states that Baynes "was walking down Aisle 2 when she slipped and fell." It also notes that Baynes "complained of tail bone pain" at the store. (Id.) Paramedics transported Baynes to an emergency room for treatment. (See Home Depot Video.)

B. Baynes's Injuries and Treatment

Philadelphia emergency medical services and the Methodist Hospital emergency room staff treated Baynes that day. (See Pl.'s Ex. 3, Pl.'s Med./Lien Damage Summ. [Pl.'s Med. Summ.].) An x-ray of her tailbone indicated that it was bruised, but not broken. (See Dep. of Dr. Jeffrey Malumed [Malumed Dep.] 14.) Baynes later saw her primary care physician, who referred her to South Philadelphia Pain Management. South Philadelphia Pain Management treated Baynes from December through early April of 2008. (Pl.'s Med. Summ.)

In the months after her fall, Baynes sought treatment for problems with her lower back, her right shoulder, and the middle fingers of both of her hands. (See Malumed Dep. 17.) She saw a number of doctors in the orthopedics practice at the University of Pennsylvania's Presbyterian Hospital for these conditions, including Dr. David Glaser. Baynes presented Dr. Glaser's video deposition at trial.

Reviewing Baynes's medical records, Dr. Glaser testified that Baynes had seen Dr. Pedro Beredjiklian, an orthopedic surgeon in his practice, three months after her fall. (Dep. of David Glaser [Glaser Dep.] 45.) Dr. Beredjiklian diagnosed "triggering" in Baynes's right middle finger, which made it difficult for her to open and close the digit. (See id.) Dr. Beredjiklian concluded that the triggering was due to post traumatic tenosynovitis, and he operated on Baynes to correct the problem in June of 2008. (Id. at 21-22.) A second surgeon, Dr. Bozentka, performed a similar operation on the middle finger of Baynes's left hand in May of 2009. (Id. at 23-24.) Both operations were successful. (Id. at 23, 25.)

Dr. Glaser himself treated Baynes for right rotator cuff problems. (Id. at 27.) Baynes came to Dr. Glaser for her shoulder pain in November of 2008. (Id. at 25-26.) He examined her shoulder and concluded that Baynes had rotator cuff disease. (Id. at 27-28.) He first treated the condition with a subacromial injection. (Id. at 29.) This procedure greatly reduced Baynes's shoulder pain. (Id. at 30.) Dr. Glaser continued to treat Baynes through May of 2010. (Id. at 31.) He observed that Baynes's shoulder was improving and recommended that she try physical therapy. (Id. at 32.) Baynes found she could control her shoulder pain through rotator cuff exercises.

Baynes was a patient of other physicians in Dr. Glaser's practice before her accident. She received treatment from Dr. Israelite for prior knee problems, Dr. Christian Fras for her spine, and from Dr. Gentchos for her lower back. (Id. at 15, 46.) Dr. Gentchos had thoroughly examined Baynes a month prior to her fall; Dr. Glaser stated that this record was helpful to him in preparing his report on Baynes's injuries for trial. (Id. at 46.) Dr. Gentchos did not find that Baynes had triggering in her fingers during his examination of her before her fall, a fact Dr. Glaser said supported his conclusion that Baynes's accident at Home Depot caused her tenosynovitis. (See id. at 45-47.) Dr. Glaser stated that Baynes's diabetes possibly contributed to her finger problems; however, he concluded that her fall would have aggravated the triggering, even if it was not the sole cause of the condition. (Id. at 47, 51.) Dr. Glaser also testified that it is not unusual for conditions such as triggering to appear after an accident rather than immediately, as "there should be a ...

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