Cheap Guys discount store was having a bad day. It had been snowing all day and customers had tracked slush onto the rugs at the store entrance. Dirty, wet footprints deface the surrounding tile floors. Jane, a customer, enters the store, crosses the soaking wet rug and slips as she steps onto the wet tile. She is seriously injured. Elsewhere in the store, at about the same time, a scoop of ice cream, dropped by a patron, lies melting on the floor directly in front of the in-store snack bar. Harry, another customer, slips on the ice cream and is injured. To make matters worse, a third customer, Joe, while shopping in the supermarket-like produce section, slips on a loose walnut and has to be removed on a stretcher. Customers commonly drop nuts on the floor while serving themselves, but there is no evidence as to how long the nut in question had been on the floor before Joe slipped on it.
A business owner is required to use due care to keep the premises safe for customers, or at least to warn them of dangers that might arise from their use of the premises. Can any of these injured customers successfully sue the store for damages?
The Wet Floor
It might seem that Jane has a strong claim arising from her slip on the wet floor. The store must have been aware that the floor was wet. However a special rule applies where a slip is caused by temporary weather conditions.
As a general rule, a proprietor is not liable for slip and fall accidents where the transitory conditions of the premises, due to normal use in wet weather, could not have been prevented.
In order to establish negligence by the defendant proprietor, the plaintiff must show that the water on the floor was more than what inevitably results from the tramping of many feet under the conditions of weather then existing. It follows that a plaintiff who slips in water tracked onto a store floor by other customers on a rainy day must show something more than the mere presence of the water.
Negligence can be established if the plaintiff proves that there was a defect or wear or some other condition, not inherent in the floor itself, which caused the floor to be especially slippery when wet. For example, the Massachusetts courts have held owners liable where there was evidence that the floor had been treated with an oil which became very slippery when wet.
A plaintiff can also establish negligence by showing that there was more water on the floor or that it had remained on the floor for longer than could reasonably be expected under the circumstances. For example, the Supreme Judicial Court held that a finding of negligence was warranted where water tracked in by patrons had collected for over an hour and a half and had created a puddle four feet long.
Absent evidence of any special defect or unusual condition of the floor, or that the quantity of water or its time on the floor was unreasonable, Jane is unlikely to succeed in her slip and fall claim against the store.
Harry’s Ice Cream Induced Fall
Where a foreign substance causes a plaintiff’s slip and fall, the plaintiff can establish negligence on the part of the business owner in one of three ways:
(1) by proving that the defendant caused the substance to be there;
(2) by proving that the defendant had actual knowledge of the existence of the foreign substance; or
(3) by proving that the foreign substance was present on the defendant’s premises for such a length of time that the defendant should have known about it.
The ice cream on which Harry fell was certainly a foreign substance. However it was not placed on the floor by the store’s owner or employees and there is no evidence that they had actual knowledge of its presence. Thus, the issue is whether the ice cream was on the floor long enough so that store personnel should have known of it.
The length of time sufficient to establish negligence on the part of the defendant store owner depends on the facts of the case. There may be direct or circumstantial evidence of how long the substance was on the floor. In addition, consideration should be given to the opportunity for the defendant’s employees to discover the danger, taking into account their number, their physical proximity to the dangerous condition and, in general, the likelihood that they would become aware of the dangerous condition in the normal performance of their work.
While melting ice cream, by itself, is not sufficient evidence that the ice cream has been on the floor long enough for the defendant to have discovered it, the fact that the ice cream was located directly in front of the snack bar, and therefore was visible to store personnel working at the snack bar, will probably be enough to establish the store owner’s negligence.
The Errant Walnut
Because Joe does not know for how long the walnut had been on the floor before he slipped on it, Joe is unlikely to be able to prove negligence on the part of the store in any of the three ways previously outlined in the section about Harry’s ice cream fall.
He cannot prove that the store caused the walnut to be on the floor, that the store had actual knowledge of the dangerous condition or that the walnut was present on the floor for such a length of time that the store should have known about it.
However, Joe may be able to take advantage of another special rule. In Sheehan v. Roche Bros. Supermarkets, Inc., a 2007 decision, the Supreme Judicial Court adopted the so-called “mode of operation” approach, which focuses on whether the nature of the defendant’s business gives rise to a substantial risk of injury to customers.
Under this approach, where an owner’s chosen mode of operation makes it reasonably foreseeable that a dangerous condition will occur, a store owner can be held liable for injuries to a customer if the customer proves that the owner failed to take all reasonable precautions necessary to protect customers from these foreseeable dangerous conditions.
The Sheehan Court held that the defendant supermarket’s use of a self-service mode of operation (in which customers select their items from the shelves rather than being waited on by store personnel) created the foreseeable risk that products would end up on the floor, posing a danger to customers who might be distracted by the store’s attractive displays of products. The plaintiff in Sheehan had slipped on a grape which had fallen to the floor in the self-service produce section of the store.
According to the Sheehan Court, the mode of operation approach does not eliminate the requirement that the store owner know or should know of the presence of the foreign substance on the floor prior to the accident. However, notice is presumed where the owner knows or should know that its very method of operation is likely to cause such dangers.
The plaintiff is relieved of the burden of proving notice by, for example, showing how long the foreign substance has been on the floor. However, the plaintiff is still required to show that the accident was caused by a foreign substance or other dangerous condition and that the store failed to take reasonable measures, commensurate with the dangers of self-service, to make the store safe to patrons.
The plaintiff must also show that the dangerous condition was caused by the self-service mode of operation and not by other causes (e.g. a fall caused by a newly waxed floor). Although the mode of operations approach could, theoretically, apply whenever a defendant’s method of doing business poses foreseeable dangers to customers, the courts have thus far applied it only in cases where defendant businesses were self-service establishments.
A court would probably apply a mode of operations analysis to Joe’s claim. Because the store was a self-service establishment and it knew or should have known that produce, including walnuts, was likely to be dropped on the floor, posing a danger to customers. Joe need not, therefore, prove that store personnel had actual or constructive knowledge of the particular walnut on which Joe slipped. Joe will still have to show that the store failed to take reasonable measures to protect its customers.
Did the store assign employees to periodically remove debris from the floors? If so, how many employees and how often did they clean the produce section floor? Were the walnuts packaged and/or displayed in a manner that decreased (or perhaps increased) the risk that one would fall on the floor? These factual questions, and others, are relevant to determining whether the store acted negligently.
Although the three slip and fall claims discussed in this article were subject to three different legal rules, the ultimate legal standard governing all such claims remains the same. In every case, a store owner must act reasonably under the circumstances. What is reasonable depends on the facts of each case. Specialized rules, such as for transient weather conditions or self-service stores, help define reasonable conduct in these limited situations.