MEMORANDUM
TO:
FROM:
DATE:
RE: Gretchen Lopez; Slip and fall at store; Store owner’s duty to protect customer
QUESTION PRESENTED
Whether the store owner had constructive notice to clean a spill on the property where the complainant slipped and did not fix it, but where the complainant was walking down a staff-only corridor with a sign that indicated that it was an employee’s only hallway; and around 50 minutes had passed before the last sweeping inspection at 9:45 a.m. and the next one due at 10:30 a.m.
BRIEF ANSWER
Probably yes. A store owner has a general duty to ensure that the premises are safe and free from any dangerous situations that may occur such as a slip and fall incident. Store owner can ensure safety by inspecting the premises on regular basis within reasonable intervals of time or by take proper action to ascertain the condition of the premises. If in the course of exercising reasonable care, the storeowner discovers a hazardous condition, the store owner has a duty to warn a customer of the condition and is liable if he fails to correct the situation. A storeowner owes its customers a duty of care in exercise reasonable care by keeping premises reasonably secure which involves inspecting the premises on regular intervals of time. Here, Ms. Gretchen slipped and fell after stepping on a liquid on her way to look for bathroom. About 50 minutes had passed before the last sweeping inspection at 9:45 a.m. and the next one due at 10:30 a.m. Although the owner of a property is not an insurer of a visitor’s personal safety, property owner has a duty to adopt reasonable safety measures to ensure that visitors of the premises are safe. Therefore, an owner’s actual or constructive notice of a hazardous condition is a key to establishing liability.
STATEMENT OF FACTS
Around 10.30 a.m. on March 23rd, 2021, Ms. Gretchen entered the Healthy Kitchen store located in Yorba Linda where a cooking demonstration was to be held at 10.30. As the cook, employee Armen Esfahanian, informed the audience that the demonstration is in 10 minutes, Ms. Gretchen decided to visit the rest room, but on her way to look for a bathroom her foot slipped and she fell backwards to the ground and in the process ended up breaking her wrist.
The Healthy Kitchen store opens at 10 a.m. and a standard pre-opening sweep is carried out at 9.45 a.m. The next sweep was due at 10.30 a.m. and was underway at the time the incident occurred. Employee Dale Hurwitz, in-charge of the cleaning operations at the store was walking the store at the time of incident, but had not yet monitored the rear hallway when Ms. Lopez fell. His notes on the Sweeps Sheet reflect he began his sweep at 10:33a.m. at the front entrance of the store. Neither Dale Hurwitz nor Kiera Ward, the store manager, who entered the store via the back entrance noticed the spill. Additionally, Armen Esfahanaian (cook) and Carol Kim (at register) did not also notice the spill that could have occurred any time between 9:45 a.m. and 10:30 a.m. The claimant, Ms. Lopez was wearing a pair of flat sandals at the time of the incident. It is unknown whether prior incidents have occurred on the property.
DISCUSSION
To prove negligence in a slip and fall case, a claimant must prove there was a duty and the subsequent breach of that duty by demonstrating the site of incident had not been inspected within a reasonable period of time. ORTEGA v. Kmart Corp., 26 Cal. 4th 1200 (2001). A storeowner owes its customers a duty of care in exercise reasonable care by keeping premises reasonably secure which involves inspecting the premises on regular intervals of time. This memo will address the element of duty by determining if the storeowner had constructive notice of the spill and sufficient time to clear the premises followed by determining the element of reasonability in inspecting the premises.
A. The court will likely find the storeowner had sufficient time to clear the premises
The first issue the court will consider is whether the storeowner had sufficient time to appropriately clean the premises before the incident occurred. In Ortega v. Kmart Corp., 26 Cal. 4th 1200 (2001), the plaintiff, Mr. Ortega was shopping at the Torrance Kmart store (Kmart) when he slipped on a puddle of milk on the floor adjacent to the refrigerator and suffered significant injuries. The plaintiff later sued Kmart for personal injuries. Kmart asserted 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 Id. The plaintiff invoking Bridgman and Sapp logic asserted that Kmart’s failure to inspect the premises within a reasonable time before the accident, as shown by witness testimony that an inspection had not been made within at least 15-30 minutes (and possibly up to two hours) after his accident, may give rise to an inference that the spilled milk remained on the floor long enough to enable Kmart, in the exercise of reasonable care, to discover and remove it Id. Based on this, the court affirmed the Court of Appeal’s judgment that “looked at a plethora of similar cases” to conclude that 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 Id.
As in Ortega v. Kmart, in which the milk puddle was lying on a ground for at least 15-30 minutes and possibly up to two hours and that a reasonable period of time had elapsed before an inspection was carried out, here the court will likely conclude that approximately 50 minutes had elapsed between standard pre-opening sweep carried out at 9:45 a.m. and the next sweep that was due on 10:30 a.m. As per employee Dale Hurwitz’s, the in-charge of cleaning operation at the store, notes on Sweep Sheet, he began sweeping operation of the store at 10:33 a.m.
B. The court is likely to find the store owner had constructive notice of the spill.
Claimant can show that Healthy kitchen had constructive notice of the dangerous situation if claimant shows that the site had not been inspected within a reasonable period of time so that the person with a duty of care would have discovered the hazardous situation and correct it. Id. In Ortega V Kmart, the question of fact for the jury was as to whether the condition existed long enough to be discovered and remedied in exercise of reasonable care. Approximately 50 minutes had elapsed between the pre-opening sweep and the beginning of the next sweeping operation – a reasonably large amount of time for the court to likely conclude that the defendant, the Healthy Kitchen had breach duty by not inspecting the site of incident for a reasonable period of time.
Similarly, in Moore V Wal-Mart Stores, Inc. 111 Cal. App. 4th 472 (2003), the respondent, Moore, Slipped on a French fry in one of the appellant Wal-Mart Stores retail outlets. As a result, Moore sustained significant personal injuries. The site of incident had been swept between 30-45 minutes before the accident ensued. The jury ruled in favor of Moore and the judgment was challenged through an appeal on grounds that the jury instructed on liability incorrectly. According to the appellant, the trial court omitted the notice requirement. Rather, the trial court took the position that, the appellant could reasonably anticipate that such hazardous condition would rise regularly since appellant had incorporated a fast food restaurant within a store. Consequently, Moore recovered without proving notice.
In reversing the trial Court’s judgment, the court quoted Ortega V. Kmart Corp case which affirms that the owner of a property is not an insure of the visitor’s personal safety therefore the owner’s actual or constructive notice of the hazardous condition is a key to establishing liability. Id. at 1206. Further, there are no exact time limits rather each incident must be viewed in light of its own unique circumstances. Id. at 1207. Thus, the court of Appeal in the case of Moore V. Wal-Mart Stores, Inc. reversed the trial court’s decision since Moore did not establish actual or constructive notice.
However, in Getchell V. Rogers Jewelry203 Cal. App. 4th 381 (2012), the plaintiff, Getchell, alleged that he was injured when he slipped and fell on jewelry cleaning solution in the backroom of the defendant’s store which was only accessible to the defendant and the defendant’s employees. The store submitted declarations of its store employees and office managers who denied having any notice of the cleaning solution spill on the floor. The trial court entered summary judgment in favor of the defendant on the grounds the plaintiff failed to establish that the defendant had actual or constructive notice of the hazardous state and further, plaintiff failed to adduce evidence of how the cleaning solution got on the floor prior to the fall. On appeal, the court reversed the judgment holding that because Getchell produced evidence from which a reasonable inference could be drawn that the dangerous condition was created by the store or the employees of the store, the store was charged with notice of the dangerous condition. Id. According to California law, he who alleges should prove that the store owner had actual or constructive notice. In this case, the fact that the employees of the store may have created the dangerous situation was enough to establish liability. The court is likely to conclude that The Health Kitchen had constructive notice of the spill because the location of the spill may indicates that employees use that hallway more frequently than customers.
However, Health Kitchen may argue that because Ms. Gretchen was walking down a staff-only corridor and there was a sign that it was an employee’s only hallway, Ms. Gretchen contributed to the injury she suffered. For this fact, the court is likely to find both our client and Health kitchen liable hence shared liability. Although this may be the case, the claimant may argue that the sign indicating that the hallway is an employee- only hallway was small and “not so obvious.” Additionally, according to the sketch of the Health Kitchen and the Healthy Kitchen Incident Report prepared by the store manager, the brown liquid which caused the fall was adjacent to the hall way and before the employee break room. According to the position of the brown liquid which was positioned near the employees’ break room, our client may establish constructive notice of the spill and reasonable time to clear the spill.
However, Healthy Kitchen may rely on the case of Peralta v. The Vons Co, 24 Cal. App. 5th 1030 (2018) where the court affirmed trial court’s grant of summary judgment in favor of Vons in a slip and fall action due to inadmissibility of evidence to create an issue of material facts as to whether Vons was on constructive notice that the floor was slippery or otherwise dangerous. Id. In this case, Peralta slipped and fell at Vons in the bakery section. However, there was no evidence of a spill or a hazardous situation that might have caused the slip and fall. Von was granted summary judgment since the plaintiff could not prove that the floor was wet or dangerous despite the plaintiff stating that the floor did not meet the industry standards. Similarly, according to the Health Kitchen Report, the brown liquid was minimal and Ms. Gretchen was wearing a pair of flat sandals. The court is likely to consider the sandals worn by Ms. Gretchen as evidence in establishing whether in the absence of constructive notice, the claimant did not put herself in apposition where she fell due to her attire. Nevertheless, the court is most certainly likely to conclude that Health Kitchen had a duty to ensure that the premises is safe and free from any hazardous situation by making regular inspections and cleaning any spill like the visible brown liquid.
With the current California law on liability in slip and fall cases which corresponds with the Ortega V. Kmart case, the Court is likely to find that the Health Kitchen had sufficient time to notice the spill and correct it.
CONCLUSION
The court will likely conclude that the Healthy Kitchen owners actions warrant liability for negligence for failing to respond within a reasonable time as 50 minutes is a reasonably sufficient period of time where the spill could have been reasonably located and cleaned up. Additionally, the Court is likely to find that Health Kitchen had constructive notice of the spill and had a duty to warn or clean the spill within reasonable time.
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