Sam Knef Jun. 19, 2017, 6:38pm


ST. LOUIS – The Missouri Court of Appeals, Eastern District has affirmed a jury award of $81,000 to a woman injured in a slip and fall on cheese sauce at the South County Mall in St. Louis County in 2009.

According to a decision filed June 6, at trial the mall's owner CBL & Associates Management and its maintenance and security contractor ERMC III Property Management were found to have been 90 percent at fault for injuries that Sandra M. Marmaduke suffered in the incident.

Because she was found to have been 10 percent at fault, Marmaduke's award was reduced from $90,000 to $81,000, plus costs.

Background information in the ruling indicates that two weeks after she fell, her attorney sent written notice of her claim to mall officials. However, she did not file her premises liability suit until 2013.

Points of contention during the discovery phase prior to trial included arguments over the existence of video recordings on the day of the incident as well as dispatch logs related to the incident.

Defendants had denied the existence of video recordings or dispatch logs, and stated that even if a dispatch log had existed, it would have been destroyed during a water main break at the mall in May 2011.

Depositions of company representatives of both defendants later indicated that they "had the capacity to create dispatch logs and video recordings on the day of Marmaduke's fall" and "video recordings were made on the day of Marmaduke's fall," the ruling states.

The jury was allowed to hear the defendants' contradicting discovery responses, the ruling states.

"In closing argument, Marmaduke asserted that appellants knew about the cheese spill before Marmaduke's fall because (mall security manager James) McNeil told Marmaduke he was aware of it but had not yet had time to clean it up," the ruling states.

Her attorney also argued that the defendants lied about not having evidence of a dispatch log and video recording and that they allowed it to be destroyed "when they should have preserved it because they were on notice of Marmaduke's claim."

The defendants appealed the verdict that arose in St. Louis County Circuit Court Judge Colleen Dolan's court. The ruling does not indicate when trial was held.

The three-judge appeals panel made up of Presiding Justice James Dowd and Justices Kurt Odenwald and Gary Gaertner, among other things, held that defendants failed to present all of the medical exhibits for their review in connecting treatment to the fall.

"This alone is a sufficient reason to dismiss this point," Dowd wrote.

Regarding the defendants' jury instruction argument that they could be considered as one party, the panel held that CBL never raised the defense that ERMC III "was not acting as its agent or was acting outside of the scope of its agency in this case."

Dowd wrote that the defendants filed a joint answer admitting that CBL was owner and ERMC III was responsible for housekeeping and security of the mall's common area.

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Missouri Court of Appeals Eastern District
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