Free: An
Insider’s Advice for
Maximizing Slip and Fall Settlements
Slip and fall cases can be difficult to win. Failure to prove a causative link between the hazard and a negligent act of the defendant is the number one reason for the high number of losses in slip and fall cases.
In these free chapters, Charles Turnbow, attorney-engineering consultant on over 9,000 slip and fall cases, provides you with an organization system and the tools to efficiently develop persuasive slip and fall claims. He shows you how to prove the causation (and how to efficiently screen out cases lacking it) by:
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Analyzing the mechanics of the fall to identify the cause
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Making sure your case has the attributes necessary to win
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Documenting the dangerous condition and the negligence that caused it
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Establishing the duty of care
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Proving control of the premises
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Establishing actual or constructive notice
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Showing that the hazard caused the injury
To have your free slip and fall chapter e-mailed to you, fill in the blanks below and press Submit. The chapters available are listed below.
You may select one of the following chapters and have it e-mailed to you at no charge:
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Case
Evaluation Chapter 1. In the Beginning Chapter 2. Premises Liability Law Chapter 3. Building Codes Chapter 4. Mechanics of Walking Chapter 5. Measurements and Testing Chapter 6. Case Evaluation
Litigation Chapter 7. Pleadings Chapter 8. Depositions Chapter 9. Production of Documents, Interrogatories and Inspection Demands Chapter 10. Selection and Use of Expert Witnesses Chapter 11. Determining Damages Chapter 12. Defending a Slip and Fall Case Chapter 13. Settlement and Arbitration Chapter 14. Preparing Documents and Evidence for Trial Chapter 15. The Trial
Categories of Cases Chapter 16.
Chapter 17. Falls on Public Property Chapter 18. Falls in Markets Chapter 19. Falls in Residences Chapter 20. Falls on Construction Sites Chapter 21. Falls at Recreational Facilities Chapter 22. Falls on Ice and Snow Chapter 23. Falls by the Elderly or Disabled Chapter 24. Playground Accidents |
Here are the first 7 pages of a 27-page chapter:
Chapter 18
Falls in Markets
§1800 Introduction
§1801 Basis of Law
§1802 Critical Elements
§1803 Three Basic Items
§1804 Application of
Premises Liability Law
§1805 Burden of Proof
§1810 Proving the
Elements
Case 1: Defendant Store Has Duty to
Inspect
§1811 The Wollerman
Rule
§1820 Source of
Hazard
Case 1: Absence of Hazard
Case 2: Mysterious Causes
§1830 Business
Owner’s Duty
Case 1: Failure to Warn
Case 2: Failure to Inspect
Picture: Cluttered Aisles
§1840 Establishing
Notice
Case 1: Sweeping Logs
§1840.1 New Technologies
Case 2: Special Maintenance Problems –
24-Hour Market
Case 3: Gratuitous Use of Premises
Case 4: Failure to Inspect
§1841 Mode of Operation
§1842 Merchandise and
Other Distractions
Case 1: Distracting Display
Picture: Riser and Warning Sign
§1850 Questions and
Answers
Figure 18-1:
Typical Grocery Store Sweep Log
§1851 Employee Training
Case 1: Employee Training
§1852 Distractions
Case 1: Distractions in the Store
§1860 Demonstrative
Evidence
§1861 Photographs
§1862 Video
§1870 Supermarket and
Retail Store Checklist
§1880 Additional
Sources
§1881 Sample Complaint for
Fall in Supermarket
§1882 Demand for
Production of Documents
§1883 Demand for
Inspection of Property
§1800 Introduction
Falls in retail stores and other businesses are not the
most common slip and fall accidents, but they are probably the most
litigated. The relationship between the business owner and the patron
has created a special duty to provide premises that are reasonably safe.
Even where there is no distinction between invitees and licensees,
special duties are charged to the business owner.
The duty may be based on traditional common law or
on the newer concept of the so-called “mode of operation” theory of
liability. The manner in which the merchandise is packaged or displayed
may impose additional duties on the business owner. In Bloom v. Fry’s
Food Stores, 130 Ariz. 447 (Ariz. Ct. App. 1981), the court held
that the plaintiff may be relieved of the burden of proving notice where
the occurrence of a transitory hazardous condition may be reasonably
anticipated. See also Chiara v. Fry’s Food Stores, 733
P.2d 283 (
After considering a similar case six years later,
the court coined the phrase “Mode of Operation” was coined to describe
the application of a relatively new rule that extended of the theory of
liability where the storekeeper would be negligent if he failed to
inspect or clean his store. Under this extension, the plaintiff could
establish liability “by showing that the operator of the premises had
failed to conduct periodic inspections and the frequency required by the
foreseeability of risk.” However, “[t]he plaintiff must still prove that
defendant failed to take reasonable care to prevent injury.” Chiara
v. Fry’s Food Stores, 733 P.2d 283, 285 (
Thus the manner of operation and the type of
articles on display are more important than the length of time the
object had been on the floor. Where the hazardous condition is the
results of a failure to reasonably maintain the premises, this failure
may be the basis for negligence and actual or constructive notice is not
necessarily required. The plaintiff may be excused from proving notice
where the existence of the hazard is reasonably foreseeable. See
Morton v. Lee, 75 Wn.2d 393 (1969); Pimentel v. Roundup Co.,
100 Wn.2d 39, 666 P.2d 888 (1983); Sheil v. T.G. & Y. Stores Co.,
781 S.W.2d 778 (
“If the store owner’s practices create a higher
risk that dangerous conditions will exist, ordinary care will require a
corresponding increase in precautions.”
§1801 Basis of Law
Plaintiffs used to be faced with a frightful burden of
proving both breach of duty and notice. Over time, the courts eased
plaintiffs’ burden. For example, in 1954 a California court in Hale
v. Safeway Stores, Inc., 129 Cal. App. 2d 124 (Cal. App. 1954) held
that frequent inspection of the sales areas in markets was necessary and
that 12-15 minutes between inspections would not be unreasonable.
Other states adopted a similar rule, holding that
the foreseeability of the circumstances would create a condition that
could pose a danger to the patrons. As a result of the number of
lawsuits and as a means of providing a reasonably safe shopping
environment, supermarket and grocery chains developed safety procedures
through which the hazards could more quickly be identified and abated.
Chiara v. Fry’s Food Stores, 733 P.2d 283, 285 (
§1802 Critical Elements
Obviously, there must be some type of hazard if a
negligence action is to succeed. Wet or contaminated floors are the most
common cause of supermarket slip and fall accidents. Merchandise or
debris on the floor is often alleged to be the accident cause.
Structural failures and defects in the walkway surface come in at a
distant third.
Most often the hazards are self-documenting and do
not require expert testimony to establish the existence of a hazard. For
example, spilled cooking oil on a smooth floor creates an undeniably
slippery surface. Vegetable matter, liquids and other debris fall into
the same general category. While testing of the floor surface is
helpful, its importance is secondary to establishing notice.
Notice is the main issue in nearly every retail
store slip and fall case. Since actual notice is rarely supported by the
facts of the case, constructive notice must be established by the
plaintiff. This is most often done through expert testimony. If the
plaintiff cannot prove actual, constructive or implied notice, or cannot
show that the defendant did not safely maintain his premises through
frequent, regular and competent inspections or cleaning, then there is
little hope for success.
§1803 Three Basic Items
All fall accidents in retail stores include the same
three ingredients: the shoes, floor, and pedestrian. The plaintiff must
be able to narrow the issues or causes of the incident. Expert testimony
is most often used to eliminate one or more of these elements as a
substantial contributing factor to the cause of the accident.
Shoes. Where possible, the expert can
examine, inspect or test the shoes worn by the plaintiff so that they
may be eliminated as a cause, or in the alternative, to develop
sufficient evidence that can serve as the basis of a products liability
action against the shoe retailer or manufacturer. Some sole and heel
materials are inherently slippery, and therefore defective, regardless
of the floor surface. Every slip and fall case should be evaluated as a
potential products liability case. Most shoes are not defective so the
physical characteristics of the shoes should be carefully evaluated so
they can be ruled out as a contributing factor to the cause of the
accident.
Floor. Lack of adequate traction is the
most common cause of falls in retail stores. A contaminated or wet
surface substantially reduces the amount of available traction and
creates a slippery condition. Measurement and testing of the floor is
covered in detail in Chapter 4. There usually has to be some showing
that the floor was dangerous under the conditions existing at the time
of the accident.
Pedestrian. In most market slip and fall
cases, the plaintiff falls victim to a hazard while shopping or doing
other things that are both reasonable and foreseeable. On occasion,
however, some or most of the fault lies with the pedestrian. A
reasonable and sometimes effective defense is that the patron acted in
an imprudent or unreasonable manner, such as running within the store,
climbing over displays or merchandise or failure to heed signs or
warning devices. Similar to the burden placed on the business owner to
prove that he acted reasonably in the maintenance and safety of the
store, the plaintiff should show that her activities were not only
reasonable but foreseeable under the circumstances.
§1804 Application of Premises Liability Law
The market has a duty to maintain its premises in such a
manner that it does not create an unreasonable risk of harm to the
patrons. It must exercise ordinary care under the circumstances to
minimize the commonly occurring slipping hazards. Industry standards
create the bar by which the activities of the defendant are measured.
The retail store industry has adopted inspection and maintenance
procedures, which are designed to minimize these hazards.
Under modern case law, if the defendant does not
conduct regular and frequent inspections of his premises, the courts
will permit the assumption that the hazard was in place a sufficient
length of time for the defendant to have reasonably corrected or abated
it. Bridgman v. Safeway Stores, Inc., 348 P.2d 696 (1960);
Sapp v. W. T. Grant Co., 341 P.2d 826 (Cal. App. 1959); Bloom v.
Fry’s Food Stores, 636 P.2d 1229 (Ariz. App. 1981); Bozza
v. Vornado, Inc., 200 A.2d 777 (1964); Mahoney v. J. C. Penney
Co., 337 P.2d 663 (N.M. 1962); Presnell v. Safeway Stores, Inc.,
374 P.2d 939 (1962); Chiara v. Fry’s Food Stores, 733 P.2d 283,
285 (Ariz. 1987); Brooks v. Phillip Watts Enterprises, Inc., 560
So. 2d 339, 341 (Fla. Dist. Ct. App. 1990); Jackson v. K-Mart Corp.,
828 P.2d 941, 947 (1992), aff’d 840 P.2d 463 (1992); Pimentel v.
Roundup Co., 666 P.2d 888, 893 (1983); Ortega v. Kmart Corp.,
26
§1805 Burden of Proof
The plaintiff must show that the hazard was the result
of the activities of the defendant or the failure to act was the result
of the defendant’s breach of his duty to reasonably maintain the
premises in a safe manner. This proof usually requires an expert to
establish the custom and practice of the industry, to document the
existence of the hazard and to establish reasonable and necessary safety
procedures for inspection and maintenance of the premises.
Under some circumstances, the burden of proof
shifts to the defendant. For example, most modern courts require the
defendant market to prove that he exercised reasonable care in the
maintenance of his premises. The defendant now has to present evidence
that inspections and cleaning were done on a frequent and adequate
basis, that the defective condition of the floor did not result from any
negligent act of the defendant or his employees and that he did not have
actual or constructive notice of the hazard. See Chiara v. Fry’s Food
Stores, 733 P.2d 283 (
§1810 Proving the Elements
Notice is the most critical element that needs to be
established. Without notice evidence, there is little hope of success.
The existence of the hazard is next in importance. For example, an
expert may be needed to establish that under normal use conditions the
floor surface is slippery and that special precautions would be
necessary to render the floor reasonably safe.
Case 1: Defendant Store Has Duty to Inspect
A male patron was shopping at a general merchandise
discount store when he slipped in a puddle of milk on the floor adjacent
to a refrigerator and suffered significant injuries to his knee,
including ligament tears. Less than a year later, the plaintiff sued the
store for personal injuries. At trial, the plaintiff testified that he
did not notice whether the puddle of milk was fresh or odorous, warm or
cold. He could not present evidence showing how long the milk had been
on the floor. Nonetheless, the plaintiff claimed that because the
evidence showed the retailer had not inspected the premises in a
reasonable period of time prior to the accident, a jury could infer the
puddle was on the floor long enough for the store employees to have
discovered it.
Plaintiff’s maintenance expert conceded that he
found no direct evidence indicating how long the puddle had been on the
floor before the plaintiff’s fall. He did opine that this store and
similar ones should implement three basis management tools relevant to
floor maintenance: (1) accountability (the name of the person who
performs the inspections should be identified); (2) frequency
(management should know how often the floor is inspected); and (3)
verification (a written record or some other form of verification
should be presented to management).
A former store manager testified that although the
store keeps no written inspection records, all store employees are
trained to look for and clean up any spills or other hazards. He also
stated that several employees work in the pantry aisles next to the milk
refrigerator, and that an employee usually walked the aisle where the
plaintiff slipped every 15 to 30 minutes. When asked whether milk could
have been on the floor for five minutes or two hours, the manager
testified that it would be hard for anything to be on the floor for more
than 15 to 30 minutes. He did admit, however, that the milk could have
been on the floor for as long as two hours. On the day of the accident,
the manager testified that management would not have any idea if the
aisle where the accident occurred was inspected at any time during that
day. The store claimed that the plaintiff failed to carry his burden of
showing the milk puddle existed for a sufficient time to establish
constructive notice to the store.
The trial jury found for the plaintiff and the
verdict was appealed. The California Supreme Court found that the
plaintiff could be relieved of his burden of showing how long the milk
remained on the floor if he demonstrated the site had not been inspected
within a reasonable period of time. Ortega v. Kmart Corp., 26
“Circumstantial evidence of a property owner’s
failure to inspect the premises before an accident is sufficient to
infer the risk existed long enough for the property owner, in the
exercise of due care, to have discovered and removed it. In other words,
a property owner’s failure to reasonably inspect can be used to infer
constructive knowledge of the dangerous condition, providing a causal
link between the accident and the time period between inspections. The
determination of what constitutes a reasonable time period between
inspections will necessarily vary according to the particular
circumstances. For instance, “‘[A] person operating a grocery and
vegetable store in the exercise of ordinary care must exercise a more
vigilant outlook than the operator of some other types of business where
the danger of things falling to the floor is not so obvious.’
[Citation].” Thus, while a 15- to 30-minute interval between inspections
at a busy commercial retail center may lead to an inference of
negligence, the same inference might not be found elsewhere.” Ortega
v. Kmart Corp., 26 Cal.4th 1200, 1210 (2001).
Duty to inspect is also reflected in the following
cases: Keller v. Schwegmann Bros., Inc., 402 So. 2d 724 (
§1811 The Wollerman Rule
To create a more equitable balance in regard to the
burden of proof in supermarket slip and fall cases, the court in
Wollerman shifted the burden of proof to the defendant, Grand Union,
to show that it exercised reasonable care in maintaining its stores.
Wollerman v. Grand Union Stores, Inc., 221 A.2d 513 (1966). See also
Bozza v. Voonado, Inc., 200 A.2d 777 (1964).
While the Wollerman ruling created only a
permissible inference of negligence, it has been the basis of subsequent
holdings that the defendant must show a lack of negligence by proving he
acted in a reasonable and prudent manner rather than the plaintiff
having to establish both notice and breach. This ruling and others like
it has protected the plaintiff from summary judgment when it has been
established that (a) a transitory hazard on the defendant’s premises
caused the plaintiff to injure herself and (b) patrons were likely to
create transitory hazards under the normal operation of the business.
The court ruled that “it was fair to place the onus of producing
evidence” on the defendant that he had taken reasonable steps to protect
the plaintiff from a risk of harm inherent in the store’s self-service
method of operation.
The Wollerman Rule can be simply stated as:
“[W]here a substantial risk of injury is implicit in the manner in which
a business is conducted, and on the total scene it is fairly probable
that the operator is responsible either in creating the hazard or
permitting it to arise or to continue, it would be unjust to saddle the
plaintiff with the burden of isolating the precise failure.” See
Chiara v. Fry’s Food Stores, 733 P.2d 283, 285 (
§1820 Source of Hazard
Occasionally, a slip and fall accident will occur when the floor is clean and dry. Victims of such falls usually allege that the floor was dangerous because it was highly polished and shiny. Modern commercial waxes have high coefficients of friction when properly applied to the floor, leaving little danger of slipping.
Case 1: Absence of Hazard
The plaintiff and a friend were shopping in a large
supermarket. The plaintiff slipped and fell while walking toward a store
display. Prior to the fall, the plaintiff did not see any foreign
material on the floor and did not think the floor was slippery. After
the fall, however, he did notice that the floor was very shiny and
appeared to be highly polished. No witnesses could confirm the floor’s
condition or the presence of any foreign material. While this market did
not maintain sweep sheets, competent testimony indicated that the floor
had been swept and inspected within the hour.
The plaintiff filed an action based on negligent
maintenance of the floor. To establish the hazard, the plaintiff relied
on her observation that the floor was very shiny and appeared to be
highly polished. After answering the complaint and conducting rather
extensive discovery, the defendant filed a motion for summary judgment.
After a trial court ruling, the California Court of
Appeal affirmed that the motion for summary judgment should have been
granted based on the plaintiff’s failure to establish a hazard. There
was no offer of evidence that the floor was actually slippery. In
depositions, the eyewitness and store employees all testified that the
floor did not seem slippery and that they had no difficulty in
negotiating the surface. The court held that the mere fact that the
floor appeared to be highly polished and shiny was not sufficient proof
that it was slippery. If the condition could not be seen, recognized or
measured, the defendant would have no opportunity to take any remedial
measures to abate the hazard. Buehler v. Alpha Beta Co., 224
Case 2: Mysterious Causes
The plaintiff was walking down the household
products aisle of a discount department store when she slipped and fell,
causing serious injury. The plaintiff said the floor was extremely
slippery, causing her right foot to slide forward.
Paramedics stated that the floor seemed slippery as
they treated the plaintiff. Store management denied that there was any
liquid or debris on the floor. The plaintiff did not see anything on the
floor. According to testimony and written records, the floor was
routinely stripped, waxed and buffed using a commercial floor treatment
compound that provided a nonslip finish.
The plaintiff retained a safety expert to evaluate
the floor and to determine whether the store followed custom and
practice in the inspection and maintenance of the area. Coefficient of
friction measurements produced values that suggested the floor was not
slippery (above 0.50). At the time of the expert’s inspection, there was
no condition that could have caused the plaintiff to slip.
Careful examination of the merchandise on the
household products aisle revealed that the majority of products were
aerosol spray cans of furniture polish and dusting compounds. During
business hours, patrons sprayed the products to smell them. The fine
mist of the furniture spray settled on the floor. When the expert
measured the coefficient of friction on that particular portion of the
floor, she found it to be very slippery, with coefficients of friction
of about 0.18. Because routine sweeping and inspection of the floor
would have likely removed the overspray, the jury found that the store
was negligent in its lack of daytime sweeping.
There was never any evidence of overspray on the day
of the plaintiff’s fall. However, something caused the floor to be
observably slippery, and test spraying of aerosol cans is rather common.
Both the hazard and resulting accident were foreseeable. As a
precaution, the store should have swept the area on a regular basis.
In each of the above cases, there was no
observable material on the floor. In the first case, the plaintiff
failed to establish a defect or hazard for which the defendant was
responsible. In the latter case, the plaintiff prevailed because she and
others testified to the hazard, and the store did not take reasonable
precautions to correct the foreseeable hazard.
Often there is conflicting testimony as to the
existence of liquid on the floor. Testing is likely to prove that the
floor is safe in the absence of liquid. If there is conflicting
testimony, it may be sufficient to show that the accident could not
have happened unless a lubricant was on the floor.
Many markets fill out incident reports and take
photographs soon after the accident. The reports are sent to the risk
management department to use in potential litigation. In states where
such reports and photographs are not considered work product, demand
production during the discovery process. Stores frequently document the
hazard in these reports.
§1830 Business Owner’s Duty
If the defendant knows or should have known of a
condition that foreseeably could present a danger to the patron, he or
she has a duty to use ordinary care in removing the hazard or adequately
warning the patron of its existence. The customer has a right to assume
that the business premises are reasonably safe unless there are
indications or warnings to the contrary. See Whittaker v.
Schwegmann Bros. Giant Supermarkets, 334 So. 2d 756, 757 (La.App. 4
Cir. 1976). See also Bruce J. Oreck, The Game’s Afoot: the
Storekeeper’s Heightened Responsibility for Slip and Fall Accidents,
37
Case 1: Failure to Warn
As the plaintiff entered a fast food restaurant in a
shopping mall, she noticed a restaurant employee mopping part of the
floor. She also observed at least one sign that read: “Caution, Wet
Floor.”
After eating, the plaintiff slipped and fell while
leaving the restaurant. She did not see any water or liquid on the floor
where she slipped but noticed that her clothes were wet. After the fall,
the plaintiff saw the warning sign, but not the employee mopping the
floor. The restaurant manager testified that the fall occurred in a
location that was outside the perimeter delineated by the signs.
The plaintiff’s expert testified that the wet floor
was slippery and dangerous. The slipperiness was increased due to an
improper method of rinsing and drying the floor.
After a jury trial, judgment was entered for the
defendant. The plaintiff appealed based on the court's failure to
instruct the jury on the proprietor's duty to remedy or warn of the
hazard. The Court of Appeal agreed with the plaintiff's position and
held that the defendant has a duty to use effective warning devices.
The above case, Williams v. Carl Karcher
Enterprises, Inc., 182 Cal. App. 3d 479 (Cal. App. 1986), formed the
basis of a modification in the California’s standard jury instruction
BAJI 8.01, which now reads, “The owner of premises is under a duty to
exercise ordinary care in the use, maintenance or management of such
premises in order to avoid exposing persons to an unreasonable risk of
harm. Such duty exists whether the risk of harm is caused by the natural
condition of such premises or by an artificial condition created on such
premises.” The Williams court reasoned that ordinary care would
include both maintenance and inspection for defects. This duty to
inspect and correct was affirmed by the California Supreme Court in
Ortega v. Kmart Corp., supra. A store owner exercises ordinary care
by making reasonable inspections of the portions of the premises open to
customers, and the care required is commensurate with the risks involved
(Ortega, supra, at p 1206). Since the risk of slipping is
greater in areas of the store where produce, liquids or solid material
spills are more common, these areas require more frequent inspections.
While hourly inspections may be reasonable for other portions of the
store, the high risk areas may require inspections as frequent as every
12 to 15 minutes (Hale v. Safeway Stores, 129
The defendant has a duty to keep the premises
reasonably safe and to inspect for defects and potential hazards. While
the storekeeper is not the insurer of customers’ safety, he or she owes
an affirmative duty to exercise reasonable care to keep the aisles,
passageways and floors in a safe condition. The storekeeper also has a
twofold duty to discover and correct reasonably anticipated dangerous
conditions.
After Ortega, the issue of establishing
notice of a dangerous condition was again addressed by the appellate
court. Using a standard jury instruction as a guide, the court quotes
BAJI No. 8.24, which provides in part:
“... A store owner is not negligent unless [he]
actually knew or reasonably should have known of the dangerous or
defective condition a sufficient time before the accident to have either
remedied the condition or provided warning or protection against it. An
owner reasonably should know of a dangerous or defective condition if it
existed for a sufficient length of time before the accident that if the
owner had exercised reasonable care in inspecting the premises, the
owner would have discovered the condition in time to remedy it or to
give warning or protection before the injury occurred. ...”
The revised civil jury instructions, California Approved
Civil Instruction 1011, restate this principle as follows:
“In determining whether [name of defendant] knew or
should have known of the condition that created the risk of harm you
must decide whether, under all the circumstances, the condition was of
such a nature and existed long enough so that it would have been
discovered and corrected by an owner using reasonable care.
“If an inspection was not made within a reasonable
time before the accident, this may show that the condition existed long
enough so that a storeowner using reasonable care would have discovered
it.” (Jud. Council of
The
“The ‘mode-of-operation’ rule looks to a business’s
choice of a particular mode of operation and not events surrounding the
plaintiff’s accident. Under the rule, the plaintiff is not required to
prove notice if the proprietor could reasonably anticipate that
hazardous conditions would regularly arise. [Citations omitted.] In
other words, a third person’s independent negligence is no longer the
source of liability, and the plaintiff is freed from the burden of
discovering and proving a third person’s actions...”
Case 2: Failure to Inspect
While shopping in the clothing department of a
discount store, the plaintiff caught her foot on a white plastic clothes
hanger that had fallen onto a light colored floor. The defendant
testified that there were no regular sweeping or inspection schedules in
force at that time. The company policy charged each employee with the
responsibility of continually inspecting the sales area and to promptly
pick up any material that might present a hazard.
The defendant store appealed the trial court’s award
to the plaintiff. The Louisiana Court of Appeal held that the store had
a twofold duty to inspect and correct dangerous conditions that might
present hazards to patrons. The trial and appellate courts found that
the store’s failure to conduct regular inspections of the sales floor
did not meet this level of care. See Deville v. K-Mart Corp., 498
So. 2d 1122 (La.App. 3 Cir. 1986).
The duty of the business owner is the basis of good
risk-management practices. Where businesses have instituted safety
programs, the emphasis for public safety is on inspection and
maintenance or repair. The inspection aspect of this duty is important
in the issue of notice.
Deville is based, in part, on earlier cases
that established the so-called “Louisiana Rule” which shifts the burden
of proof to the defendant requiring him to prove that his practices of
inspection and maintenance are reasonable and adequate. See
Kavlich v. Kramer, 315 So. 2d 282 (
§1840 Establishing Notice
Case law has clearly established the business owner’s
duty to inspect and maintain the premises in a safe manner and to
correct any defects found during an inspection. To be effective, the
inspections must be frequent enough to reasonably identify hazards so
that corrective action can be promptly taken.
Hourly sweeping and intermediate inspections of
the sales area are generally recognized as adequate to maintain a
reasonably safe floor. Most accidents occur when this inspection system
breaks down. The sweeping records, sheets or logs are the only practical
means of determining that inspections have occurred according to the
company’s safety policy. These logs become very effective in
establishing constructive notice.
Case 1: Sweeping Logs
A supermarket chain implemented a safety program that
substantially reduced the number of customer injury claims. The program
consisted of hourly sweeping of the entire store, half-hourly sweeping
of the lobby and produce department, twice hourly inspection by
key-carrying management personnel, and the use of safety mats in
critical areas of the produce department and near the entry doors. Each
sweeping was logged onto sweep sheets using an electronic time clock.
The sweep sheets were reviewed by the store manager and risk management
personnel. This inspection and sweeping procedure proved to be effective
in reducing accidents and supplied a good defense to the relatively few
claims that were litigated.
In this case, the plaintiff was walking past an instant drink display when she slipped on a film of powdery mix that had leaked from one of the packages. The powder, visible on inspection but somewhat difficult to see on casual observation... (continued in full chapter)
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