RE: Gretchen Lopez; Slip and fall at store; Store owner’s duty to protect customer
Whether the store owner had constructive notice to clean a spill on the property and did not fix it where the plaintiff slipped, but where she was walking down a staff-only corridor and there was a small, not-so-obvious sign 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.
A storeowner has a duty to not only inspect but also take action to ascertain that their premises are in proper conditions. If in the course of performing this duty they discover a hazardous condition, then they will be held liable for failing to rectify it. The proprietor of a business establishment owes a duty of care to customers when they come upon the business premises at the proprietor’s express or implied invitation. A failure by the proprietor to perform this duty of care is negligence. Here, the Healthy Kitchen owner had a constructive notice of the spill since he had failed to make reasonable, regular and frequent inspection of the premises. This is because the last inspection had occurred at 9.45 am, the accident had occurred at 10.30 am or thereabout and the next inspection performed at around 10.33 am according to the sweeps sheet. Therefore, the storeowner had a constructive notice of the spill since more than 50 minutes had passed which amounts to a reasonable amount of time within which the owner failed to perform regular and reasonable inspection of the premises.
STATEMENT OF FACTS.
Our client, Miss Lopez, a food blogger was attending a cooking demonstration at The Healthy Kitchen Store scheduled to start at 10.30 am on the 23rd day of March 2021. The chef was still setting up and he consequently announced that the demonstration would start in ten minutes. The plaintiff decided to visit the rest room, but on her way to look for a bathroom her foot slipped and she fell background to the ground and in the process ended up breaking her wrist.
According to Kiera Ward, the store manager, 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 began a few minutes after 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 10:33 at the front entrance of the store. None of the employees, i.e. Dale Hurwitz the cleaner, Kiera Ward, the store manager, who entered the store via the back entrance, Armen Esfahanaian the chef or Carol Kim at register noticed the spill that could have occurred any time between 9:45 a.m. and 10:30 a.m. The plaintiff, 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
A store owner has a general duty to inspect the premises or take proper action to ascertain their condition, and in the course of exercising reasonable care, if the storeowner discovers a hazardous condition he is liable for failing to correct it. To prove negligence, a plaintiff must be able to prove that a breach of duty occurred by demonstrating that the site of incidence had not been inspected at regular intervals and within a reasonable timeframe. In Ortega v. Kmart Corp., 26 Cal. 4th 1200 (2001), it was held that in a slip and fall claim a plaintiff must show the owner had a constructive notice of the condition and they did not fix it. For example proving that it had not been inspected for a long time as the manager states that it had to be every 15/30 min.
This memo will address the element of duty by determining whether the storeowner had sufficient time to clean the premises followed by the element of inspecting the premises at reasonable regular intervals.
- The court will likely find the storeowner had sufficient time to appropriately clean 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 Cak 4th 1200(2001), the plaintiff was shopping at the defendants store when he slipped on a puddle of milk on the floor adjacent to the refrigerator and consequently suffered injuries. The plaintiff thus 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. The plaintiff invoking Brigman and Sapp logic asserted that Kmart’s failure to inspect the premises 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. 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. .
The Ortega court first recounted the settled law on establishing liability by setting out several facets i.e.
- A store owner is not an insurer of the safety of its patrons but still the owner does owe the patrons a duty to exercise reasonable care in keeping the premises reasonably safe.
- A store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers. The care required is commensurate with the risks involved. However, the basic principle to be followed in all these situations is that the owner must use the care required of a reasonably prudent [person] acting under the same circumstances. This is because the owner is not the insurer of the visitor’s personal safety [citation], the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability
- In the absence of actual or constructive knowledge of the dangerous condition, the owner is not liable.
- Where the plaintiff relies on the failure to correct a dangerous condition to prove the owner’s negligence, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it. However, the plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence. Whether this condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury. There are no exact time limits. Rather, each accident must be viewed in light of its own unique circumstances.
Thus, where, as in Ortega, there is no direct evidence of the length of time the dangerous condition existed, the plaintiff can demonstrate the store owner had constructive notice of the dangerous condition by showing that the site had not been inspected within a reasonable period of time. 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. and yet it began at 10.33 am. 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. Thus, 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 conclude that the defendant, the Healthy Kitchen had engaged in a breach of duty by not inspecting the site of incident for a reasonable period of time. In other words, the plaintiff may raise an inference that the condition existed long enough for the owner to have discovered it and 50 minutes is sufficient time.
Moreover, in Moore v. Wal-Mart Stores, Inc., 111 Cal. App. 4th 472 (2003), the plaintiff while shopping in the Ceres Wal-Mart one evening, Moore slipped on a French fry in one of the store’s main aisles and fell down. The area had been swept between 30 and 45 minutes before the accident occurred. This fall left Moore with a cracked patella and torn cartilage in her knee. The maintenance crew at the Ceres Wal-Mart completes a safety sweep of the entire store every one and one-half hours. Additionally, all employees are trained to regularly check their departments for hazards and to immediately clean up merchandise and other items they see on the floors. In determining Liability, the court of appeal noted that under the current California law, a store owner’s choice of a particular “mode of operation” does not eliminate a slip-and-fall plaintiff’s burden of proving the owner had knowledge of the dangerous condition that caused the accident as it would not be prudent to hold otherwise. However, this is not to say that a store owner’s business choices do not impact the negligence analysis. If the store owner’s practices create a higher risk that dangerous conditions will exist, ordinary care will require a corresponding increase in precautions. In its own jurisdiction, the court noted that there are no exact time limits. Rather, each accident must be viewed in light of its own unique circumstances. Just like in the Moore’s case where the Walmart Stores had approximately 30 to 45 minutes to clean and inspect its premises and failed to do so, Miss Lopez has a case as the 50 minutes period between inspections is appropriate time to amount to constructive notice to The Healthy Kitchen Store.
However in Getchell v. Rogers Jewelry, 203 Cal. App. 4th 381 (2012)the plaintiff worked as an independent contractor repairing jewelry at defendant Rogers Jewelry store where he slipped in jewelry cleaning solution in the break room of defendant’s store and was injured. The solution leaked onto the floor from its container or was poured onto the floor by one of defendant’s employees. He sued defendant for negligence and premises liability. Defendant moved for summary judgment on the grounds that Getchell failed to show that defendant had actual or constructive notice of the dangerous condition and that the condition was open and notorious. In support of its assertion that it lacked notice, defendant submitted the declarations of its store and office managers, both of whom represented that they did not have any notice that the cleaning solution was on the floor on the day Getchell slipped and fell or at any other time, and that there had been no reports of falls in the Arden Fair Mall store other than Getchell’s. In opposition, Getchell argued that because defendant and its employees had exclusive control over the premises where the accident occurred as well as the bucket from which the solution was dispensed, defendant and its employees created the dangerous condition, and thus, had constructive notice of the same. have actual or constructive knowledge of a dangerous condition before liability will be imposed. Here, Getchell submitted evidence that the break room where the accident occurred and the cleaning solution which caused the accident were under the exclusive control of defendant and its employees. Based on this evidence, it reasonably could be inferred that defendant’s employees caused the dangerous condition. Likewise, The Healthy kitchen store had constructive notice of the spill that caused Miss Lopez’s accident and the court will likely find The Healthy Kitchen Store liable.
Moreover in Peralta v.The Vons Co., 24 Cal. App. 5th 1030 (2018) the plaintiff,Rose, entered a Vons grocery story wearing three to four inch stiletto heels to purchase some bread. An employee informed Rose that the bread was baking and would be ready in approximately five to 10 minutes. Rose picked up a box of pastries and returned to the bakery after 10 minutes had passed. As she was approaching the employee entrance where she was told to pick up the fresh bread, Rose’s left foot slid and she fell to the ground. Rose’s pastries fell to the ground as well. Rose did not see anything on the floor prior to or after the fall, but stated in her deposition testimony that she felt as though her foot slid on “some sort of oil or grease.” She filled out a customer accident form in which she wrote that she “felt the floor was slippery” but did not know if there was anything on the floor. She consequently sued for damages. To meet its burden of proof, a plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough. In this case unlike in Miss Lopez’s case, there was no constructive notice that the floor was slippery or otherwise dangerous. Rose stated she did not see any substances on the floor before or after the fall. Pellet examined the area after Rose’s fall and discovered nothing but the crumbs that had fallen from Rose’s box of pastries as she fell. While Vons had a duty to inspect the aisles for hazardous conditions, the minimum duty of a plaintiff is to show that the aisles were in fact unsafe and that she fell because of that condition. Therefore even if Vons did not conduct an inspection of the bakery area in the 10 to 15 minutes before Rose’s fall, the plaintiff failed to show that Vons would have discovered the condition had it conducted such an inspection. Vons, therefore, was not held liable for failing to correct a condition it would not have discovered through the exercise of reasonable care. However, Kmart may argue that because Ms. Gretchen was walking down a staff-only corridor and there was a small, not-so-obvious sign that it was an employee’s only hallway, Ms. Gretchen contributed to the damage she suffered. Therefore, the liability may be shared although the store might carry a larger percentage of the liability owing to the fact that the employee’s only sign was barely visible.
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.
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