While the prior Report From the Trenches, is based on an actual deposition exchange, this colloquy is not. The beginning is pirated from the 1939 movie Young Mr. Lincoln, a trial exchange between Henry Fonda as Lincoln and Ward Bond as J. Palmer Cass. The balance of the script is based on my own experience in countless depositions where defense attorneys attempt to make constructive knowledge of the merely possible the basis of an "Open and Obvious" motion for Summary Disposition.
If the exchange sounds ridiculous, I apologize. To the extent that imputed constructive knowledge of possibilities has become the legal standard in Michigan for granting Summary Disposition in premises liability cases, maybe the black robes in Lansing should apologize to the citizens of our state.
Q: What is your name, sir?
A: J. Palmer Cass.
Q: What does the "J" stand for?
A: John.
Q: Anyone ever call you Jack?
A: Yeah, sometimes.
Q: Why "J. Palmer Cass?" Why not "John P. Cass?"
A: Well...
Q: Does J. Palmer Cass have something to hide?
A: I got a right to call myself anything I want as long as it's my own name.
Q: I guess that's right. Well, then if its all the same to you, then, I'll just call you Jack Cass. Mr. Cass, what is your profession?
A: I'm the manager of the Kroger store here in town.
Q: How long have you been manager?
A: 20 years.
Q: Though I am not sure how your attorney, Mr. Smith might answer this question, but, Mr. Cass, have you been a life long resident of the planet Earth?
A: Hey, what is this?
Def. Atty Smith: Are you trying to be cute?
Q: Not at all. This is discovery. Frankly, if he is not a life long resident of the planet Earth, then I have a whole different set of questions, believe me.
Def Atty Smith: We will stipulate that Mr. Jack Cass is a life long resident of the planet Earth, but I object to the relevancy of the question.
Q: That's nice. Mr. Cass, as an admitted life long resident of this planet, I assume that you are familiar with the Earth's law of gravity?
A: I don't know what you are talking about.
Def Atty Smith: What's the point of this?
Q: Mr. Smith, are you instructing your client not to answer? Do I need to go to the judge to get an order to get your client to answer whether he is familiar with the Law of Gravity?
Def Atty. Smith: This is stupid. Go ahead and answer.
A: What was the question again?
Q: Sure, let me rephrase. Mr. Cass, would you agree with me that, as a life long resident of Earth, yu are familiar with our Earth Law of Gravity, that provides that unsupported, heavier than air substances, will fall down to the earth, a floor, etc.?
Def Atty Smith: Objection. Compound question.
Q: Mr. Cass, you know that when stuff falls, it falls down?
A: Yes.
Q: And you know that gravity causes things to fall "down?"
A: I hadn't really thought about it?
Q: Do you deny it?
A: Well, no.
Q: And you know that gravity causes things to fall down, even though you can't see gravity. It is, in fact, invisible?
A: I guess.
Q: We can agree, then, if something in your store falls or leaks, it does not fall or leak up to the ceiling?
A: Whatever.
Q: I'm sorry, what was that?
A: I said, whatever. I mean, yes.
Q: I see. I assume, you are very familiar with the variety of products sold at your store?
A: Very familiar.
Q: You sell milk?
A: And that's a liquid substance?
Q: Uh...Yeah.
Q: Do you sell pop?
A: Yes.
Q: Liquid?
A: Yes.
Q: Juice?
A: Yes.
Q: Liquid?
A: Yes.
Q: Beer? Wine? Spring water?
A: Yes, yes, and yes.
Q: All liquids?
A: Yes.
Q: Do you also sell a variety of canned fruits and vegetables?
A: Yes.
Q: Packed in various liquids?
A: Yes.
Q: Do you sell canned gravies?
A: Yes.
Q: And soups? And Ketchup, and mustard, and sauces of many kinds?
A: Yes.
Q: All liquid?
A: Well, ketchup isn't really a liquid.
Q: No? Is it a solid?
A: No.
Q: A gas?
A: No.
Q: Well, what's left?
A: What? You know, it's just that it's thicker than water, or pop and stuff like that?
Q: All right. So, it sounds like you are very familiar with the "liquidity" of the various items in your store?
A: Yeah, I guess.
Q: Part of your job, right?
A: Yeah, I suppose.
Q: Stuff like olive oil and cooking oil? Thicker than water, right?
A: Oh, yeah.
Q: But real slippery once it gets on the floor, I bet?
A: Yeah, don't get me started on that stuff. You try to mop it up and the floor is still like a sheet of...
Def Atty. Smith: Mr. Cass, just answer the question.
Q: Do you provide complimentary coffee for your customers?
A: Yes, several flavors. It's very popular, especially in the early mornings.
Q: And the customers are allowed to carry it with them while they shop?
A: Yes.
Q: You have a Slushee machine as well?
A: Yes.
Q: Do you have a seafood department?
A: Yes, a very large one.
Q: Sell lobsters?
A: Yes.
Q: Kept in a large tank of water?
A: Yes.
Q: Your produce department. You have a wide variety of fruits and vegetables for sale?
A: Yes.
Q: And every piece of fruit is not separately packaged, is it?
A: What do you mean?
Q: I mean, each apple, grape, peach, pear, bell pepper, banana, melon, etc, is not packaged in its own box or bag or plastic wrapper?
A: No, we couldn't do that. People want to touch what they might want to buy. And besides, the work involved. Well, it's not worth it. It would be stupid.
Q: Besides that, the overhead water sprayers you have over the produce bins wouldn't be very effective if the fruits and vegetables were all packaged up, right?
A: Yes.
Q: By the way, those sprayers come on automatically, correct?
A: Yes, every hour.
Q: You provide plastic bags for customers in the produce section, so they can package up their selections?
A: Yes.
Q: Do you provide paper towels for them to dry off the produce first?
A: No.
Q: You would agree with me that you have a lot of liquids in your store, all the time?
A: Sure, but nearly all of them are in containers of some kind>
Q: Yes, but not all, correct.
A: Correct.
Q: And you would agree that containers can leak?
A: Yes.
Q: And containers can break?
A: Yes.
Q: And as to containers, by which I mean, boxes, cans, bottles, etc., what is your best estimate of the number of such containers you would have on the shelves and on the floor of your store at any given time?
Def. Atty. Smith: Don't guess.
Q: Certainly your best estimate will do. I would venture to suggest, and correct me if I am way off, but you must have 100,000 containers with liquid in them out in the store all the time, right?
A: That sounds like a lot.
Q: Well, if you sell beer in 24 packs, you have 100 of those, that's 2400 containers right there, right?
A: Yes.
Q: And I'm sure you have more than 100 cases of beer. And if we add the milk, and the juice and the bottled water, and the pop and the soup and everything else, maybe 100,000 containers is a little low as an estimate?
A: Could be.
Q: Now, you would agree with me, that any container is capable of leaking, really at any time?
A: Well, I don't know.
Q: You disagree with that?
A: Well, most don't.
Q: But you would agree that any, and I guess all, could? It's possible, right?
A: I guess.
Q: And those same containers, if dropped, can break.
A: Yes.
Q: And you don't tell customers not to pick up containers, because they might fall and break, do you?
A: No.
Q: So, you would agree with me that at anytime, it is possible that anyone in your store could be dropping and breaking any one of your more than 100,00 containers of liquid?
A: Yes. Are we almost done?
Q: And during the course of your career as a store manager, you have had to clean up many spills, leaks, and broken containers?
A: Yes.
Q: I mean, with 100,000 containers, a lot of customers, and gravity, let's not forget, you could have multiple liquids on the floor all the time, right?
A: I don't know. I guess it's possible.
Q: That's right. It is possible, isn't it? I mean even if 99.9% of your containers didn't leak, and nobody spilled anything or dropped anything, it is possible that you could have 100 or so leaks on the floor all the time, right.
A: We don't.
Q: But it's possible. I mean, you have an aisle marked "Beverages" with nothing but liquids displayed on shelves five feet high.
A: Yeah.
Q: Is it your testimony that you don't ever have liquids on the floor of your store?
A: No.
Q: You do, don't you? What is your best estimate of the number of liquids, spills, etc. you need to clean up on the floor of your store in an average day?
A: I don't know.
Q: Your store is open 24 hours a day?
A: Yes.
Q: And how often do your employees get called to clean up a spill, or a broken container or a leak? On average?
A: I am not sure. Maybe once every couple of hours. I'm not sure.
Q: But that's in the ballpark, right.
A: Yeah.
Q: So that would be about 12 a day, 365 days in a year, and with your experience of 20 years, roughly about 87,600 such incidents.
A: That sounds like a lot.
Q: Just using your numbers. That's all. Thank you, Jack Cass.
Q: Off the record. Mr. Smith, you know I am going to have to file a Summary Disposition Motion on Notice.
Def Atty Smith: Not if my "Open and Obvious" Motion gets heard first.
Q: But you haven't taken my client's deposition yet.
Def. Atty Smith: I don't need to anymore. You must not have read the latest from the Court of Appeals.
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