Preserve that testimony!

Reading a torts decision from Judge Calabresi is like watching George Brett taking batting practice. Judge Calabresi is a scholar of American torts law, and he does not write up a torts ruling with the sort of brief and conclusory holdings that the state appellate courts have mastered. In this case, we learn why a woman who fell at a Target after using a potentially defective door cannot recover damages for her injuries.

The case is Reginella v. Target Corp., decided on April 18. Gustafson tried to use a restroom door at Target but fell to the ground and broke her hip. Her family -- which prosecutes the case after Gustafson passed away -- says the door closed too fast, causing her to fall. There is no direct evidence linking her injuries to the door, so the Court of Appeals applies a three-factor causation test:

First, was there evidence of negligence or a defect on defendant’s part, and, if there was, did that negligence or defect increase the chances of plaintiff’s injury occurring, and by how much? That is, how strong was the circumstantial evidence of causation? Second, which party is better placed to tell us whether the negligence or defect was in fact likely to be a cause of the injury or whether the injury would have happened regardless of the negligence or defect? And third, has the relevant jurisdiction, for example, by its statements as to the level of duty owed by the parties, indicated a preference in favor of or against liability in the given context?

This case focuses on the first two factors. While plaintiffs' expert reports suggest the door was defective, they do not assert that was likely to have caused the accident. At this point, Judge Calabresi detours into an historical discussion of tort law in New York, as created by Judge Cardozo, a New York judicial legend. The law today holds that "circumstantial connections between a defendant’s negligence and the harm that occurred have been deemed enough to raise a question for the jury, not only when the defendant has greater knowledge of what in fact occurred, but even when neither side can tell us what happened."

Here, there is no direct evidence linking the door with Gustafson's injury. The circumstantial evidence is also weak. Case law holds that "even the weak circumstantial evidence connecting defendant’s alleged negligence and Gustafson’s fall might in New York be enough to let this case go to the jury if the defendant were as well or better placed to tell us what, in fact, had likely happened." But Gustafson was in a good position to tell us what happened. The problem is she did  not provide that testimony before she died. Judge Calabresi states with disapproval that her lawyer "made a strategic decision not to obtain and her preserve her testimony prior to her death." This means "the link between defendant's purported negligence and Gustafson's injury is too weak to permit a jury to conclude that Target's asserted negligence cause Gustafson's fall and injury."

Why did plaintiff's counsel not preserve her testimony in the two-year period before she died? According to the opinion,

Plaintiff’s counsel explained his failure to preserve Gustafson’s testimony over this nearly 26-month period as follows: “There could be a strategy why I would not want to have—to preserve her testimony. . . . It’s just that—without making light of it, Judge, sometimes the plaintiff’s best witness is a dead witness.”