The Brian Williams controversy has ignited a debate over whether the NBC Nightly News anchor of more than ten years should be fired or given another chance. Most have said that since he sits in a position of power and trust with this lapse in his credibility, that trust no longer remains and he should be let go. Others question whether critics have also embellished at times in their lives, and say that “he who is without sin may cast the first stone.”

In order to determine the proportion of his punishment, we need to find out the degree of guilt. It is clear that his story has changed over time. But did he intentionally change it out of a need to make himself look better, or did he actually “misremember”? Could he actually have forgotten whether the helicopter he was riding in was shot with a rocket propelled grenade? Wouldn’t that stick in his mind?

A recent New York Times piece suggests that it is possible:

Numerous scientific studies show that memories can fade, shift and distort over time. Not only can our real memories become unwittingly altered and embellished, but entirely new false memories can be incorporated into our memory bank, embedded so deeply that we become convinced they are real and actually happened.

 This is because, the article continues, memories don’t

live as single, complete events in one spot in the brain. Instead they exist as fragments of information, stored in different parts of our mind. Over time, as the memories are retrieved, or we see news footage about the event or have conversations with others, the story can change as the mind recombines these bits of information and mistakenly stores them as memories. This process essentially creates a new version of the event that, to the storyteller, feels like the truth.

 One study the article cites found that “researchers could influence how an eyewitness remembered a car crash depending on what verb they used— smashed, collided, bumped, hit or contacted— to ask about it. Participants who were asked the speed of the cars when they ‘smashed’ thought the cars were going faster than those who were asked the speed of the cars when they ‘hit.’”

This brings up some relevant experiences for us in the legal profession. Many times we are dealing with events that occurred years before. Witnesses have to remember in precise detail how the crash took place or what position they were in when they slipped at the restaurant. Not only that, in interrogatories and depositions, plaintiffs have to recall events and injuries that may have occurred ten years or more. If they misremember something then the other side will often use that against them at trial to attack their credibility. Even worse, the other side may even bring forth a motion to dismiss their case on the grounds that they have committed “fraud on the court.”

It is easy to pass judgment on those who make mistakes in recalling events. However, when we look back on our own lives we may also be guilty of the same thing. I often wonder how many of my childhood or young adult memories are exactly the way I remember them. Have they changed over time?

When dealing with these issues for our own clients, it is imperative to really think these things through before the time of answering the interrogatories or the taking of the deposition. We must study the medical records and make sure that what the client thinks happened, did in fact happen the way they remember it. Because for a plaintiff in a personal injury case, like an anchor for a national news program, your credibility is really all you have. If you lose that, then like Mr. Williams, you may lose everything you are trying for.

Generally, when we think of proving constructive knowledge in Florida for a slip-and-fall case, we think that we have to follow the statute 768.0755 and prove it in one of two ways:

(a) The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or
(b) The condition occurred with regularity and was therefore foreseeable.

However, when analyzing the wording of the statute more carefully, it says that it may be proved in these ways, but does not say must. Therefore, there may be other ways to prove constructive knowledge, even if the facts of your case do not show the above conditions have been met.

For example, in a recent case, our client slipped on a puddle of spilled perfume in a department store. The spill and resulting slip were captured on the store’s surveillance camera showing only a four-minute gap between the two occurrences. The Defendant moved for Summary Judgment, arguing that because the slip occurred only four minutes after the spill, and the Plaintiff did not show that the condition occurred with regularity, the Plaintiff did not prove constructive knowledge.

However, when examining the video more carefully, between the time of the spill and the time of the slip the assistant store manager walks only a few feet from the spill. Not only that, another employee walks directly over it. Our argument was that the employees should have seen the spill if they were being diligent in performing their duties, and the fact that they did not imputed negligence upon the store.

In support of our theory, we cited the Florida Supreme Court’s ruling in Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256 (Fla. 2002). In Markowitz, a lady slipped on a grape while visiting her mother in a nursing home and was injured. Id. at 257. Three of the nursing home’s employees were engaged in a conversation in the immediate vicinity of the fall. Id. The nursing home moved for summary judgment contending that there was no actual knowledge or constructive notice of the grape. Id. The trial court granted the motion and the Third District affirmed saying that, “there is no evidence in the record to support the Markowitzes’ contention that because three nurses were in the vicinity of the fall they saw or should have seen the grape.” Id. at 258.

The Florida Supreme Court granted certiorari and reversed, finding that the presence of the three employees in the vicinity of the grape was enough to create a jury question as to whether there was constructive notice, that is, whether the Defendant should have known of the danger. Id. at 261. The court cited two cases of similar rulings to support its decision—Greenleaf v. Amerada Hess Corp. 626 So. 2d 263 (Fla. 4th DCA 1993) and Thoma v. Cracker Barrel Old Country Store, 649 So. 2d 277 (Fla. 1st DCA 1995).

Steps to Take if You are Injured in a Car Accident (Part 3)

October 23, 2014

The following is the final post of our series on steps in a car accident case. Litigation begins with filing suit. This is where your lawyer will draft a complaint and file it with the appropriate court. From there the defendant has 20 days to file his/her answer or a Motion to Dismiss. Sometimes there […]

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Steps to Take if You’re Injured in a Car Accident (Part 1)

October 23, 2014

This begins a series on steps in a car accident case. You are in a car accident. Hopefully it is not too serious. You are pretty sure it was not your fault. Even though it may not seem serious it is important to call the police. By getting the police involved you are officially getting […]

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Steps to Take if You are Injured in a Car Accident (Part 2)

October 23, 2014

The following is a continuation of our series on steps in a car accident case. At a certain point we would recommend you hire a lawyer. There are some cases that you probably don’t need one. If the crash was minor and you only need your car fixed then you don’t need a lawyer. Even […]

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Welcome to our Law office

August 8, 2010

William Ogle, the principle attorney at Ogle Law Offices is a National Board Certified Civil Trial Specialist. He was awarded this distinction in 1992 after proving his qualifications through numerous trials and examinations. To become a National Certified Civil Trial Specialist requires the recommendation of the judges before whom Ogle has practiced. William Ogle also […]

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