Anything You “Admit” Can and Will Be Used Against You

Anything You “Admit” Can and Will Be Used Against You

A California Court of Appeal recently reinstated a $850,000 verdict in a slip and fall case.  In Perez v. Hibachi Buffet[1], an $850,000 verdict turned on an inference supported by a single discovery admission.  A restaurant patron sought to recover for injuries he sustained after he slipped and fell on wet tile in the restaurant hallway.[2]  The restaurant could not produce security camera footage of the incident, so the jury was left to evaluate which party gave a more believable explanation of how a ten-foot trail of liquid appeared in the hallway leading to the restrooms and the kitchen.[3]

The patron contended the liquid came from an employee dish cart taken through the hallway to the kitchen.[4]  Importantly, the restaurant’s own discovery admission directly supported this theory.[5]  The restaurant offered three vague explanations for how the trail of liquid could have appeared: “that little girl,” a patron who did not make it to the restroom, or a customer that took a drink into the hallway and spilled it.[6]  The restaurant offered no additional explanation of “that little girl.”  The jury ultimately awarded the patron $850,000 in damages.[7]

The restaurant moved for a new trial, and, in the alternative, for judgment notwithstanding the verdict.[8]  The motions were both granted on the ground no evidence showed the restaurant’s employees created or deposited the liquid on the floor which caused the patron to slip.[9]  The trial court held it was impermissible speculation to conclude a restaurant employee caused the spill.[10]

The court of appeals reversed both orders.[11]  The court noted in both analyses, the trial court omitted mention of the restaurant’s discovery admission the restaurant hallway was used to transport dishes from the main dining room to the kitchen and the fact that the security camera footage was missing.  The trial court also ignored the plausibility of the explanations for the liquid on the floor.[12]  The court of appeals held the jury’s decision to accept the patron’s explanation that a restaurant employee spilled a dish cart on the way to the kitchen required an inference, but such an inference was a logical one.[13]

The court of appeals summed up its decision, stating: “[w]hen the facts are this simple and the contest is between a reasonable explanation and no reasonable explanation, the reasonable explanation wins.”[14]  Ultimately, the court of appeals reinstated the jury’s $850,000 verdict in favor of the patron.[15]



Counsel should grasp two points from Perez.  First, pay close attention to detail in responding to discovery.  The restaurant directly admitted in discovery that employees used that hallway to transport dishes from the dining area to the kitchen.[16]  But later at trial, restaurant representatives tried to qualify the admission by testifying the dish carts were pushed through a different, easier route, or just because employees carried dishes through that hallway did not mean they pushed dish carts through it.[17]  The jury was free to accept or reject these qualifications, and it choose to reject them.  Responses to request for admissions must be carefully drafted to avoid later negative consequences at trial.

Second, if the jury will need to base their decision off an inference, make sure to give them one that is logical and well-explained.  In short, make it make sense.  When there is no video of a slip and fall, it is important for a premises to provide an alternate explanation that correlates to the size and pattern of a spill.  The court of appeals poked logical holes in the explanations offered by the restaurant.[18]  Even though the restaurant’s explanations were not completely illogical, or impossible, the patron’s explanation a dish cart spilled the liquid while making its way to the kitchen was a rational, common-sense explanation for a spattered 10-foot trail of liquid 10 inches wide.

Making inferences based on common experience appeals to the jury’s sense of logic.  Most of the jury members in this case had likely seen restaurant employees pushing carts of dirty dishes around to the kitchen of a restaurant, while maybe a small fraction of the jury had seen a patron unable to make it to the bathroom, or a patron take their drink from the dining area, bring it to the restroom or a different part of the restaurant, and spill it.  Counsel cannot underestimate the jury’s sense of logic and ability to make reasonable inferences. Counsel must give the jury a reasonable explanation and guide their sense of logic in a direction that supports our desired outcome.


Cassandra Moser co-authored and is a law clerk in Tyson & Mendes’ 2022 clerkship program.



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[1] (2022) 82 Cal.App.5th 812

[2] 815.

[3] See id. at 816.  

[4] Id. at 817.

[5] The request for admission provided “[a]dmit that during business hours your employees transport dishware from the main dining room of the subject premises to the kitchen using the subject hallway.” The answer from restaurant was “admit.” Id. at 815-816.

[6] Id. at 817.

[7] Ibid.

[8] Ibid.

[9] Id. at 817-818.

[10] Id. at 818.

[11] Id. at 818.

[12] Ibid.

[13] Id. at 820.

[14] Id. at 814.

[15] Id. at 822.

[16] Id. at 815-816.

[17] Id. at 816.

[18] See id. at 820-821.