Alternative liability theories in slip and fall cases.
A potential client enters your office and tells you she broke her leg when she fell at the ABC Supermarket. You begin screening the viability of the case by asking what caused the fall.
If you're familiar with slip and fall cases, you know the client could respond with one of several replies: "I don't know," "I fell in this huge puddle of water that looked like it was coming out from under a refrigerated case where they store the meats," or "I fell on some trash. I think that it was a paper cup."
If her answer points to water or trash, you ask, "How long was it on the floor?" More often than not, the client will tell you she has no idea. Don't despair. In some cases, time is not an issue. For example, if the water was streaming from a refrigerated case, the defendant store was responsible for putting the water on the floor. It doesn't matter how long it was there.
However, in some cases--such as when a customer rather than a store employee caused the hazardous condition--time is an issue. In these cases, the plaintiff has to prove the defendant had actual or constructive knowledge of the dangerous condition. Constructive knowledge may be inferred from either the amount of time a substance has been on the floor or the fact that the condition occurred with such frequency that the owner should have known about it.(1)
When you cannot show how long a substance was on the floor or how it got there, you can prove your client's case using alternative liability theories based on negligent method of operation or negligent maintenance.
These theories provide a basis for liability either where the defendant, through its repeated conduct, has created a dangerous condition (negligent method of operation) or where the defendant has not cleaned up a dangerous condition, which may not have been caused by the defendant (negligent maintenance).
The court should recognize both theories as separate from the requirements of actual or constructive notice.(2) The key issue is foreseeability: Did the defendant, given the circumstances, have a reasonable opportunity to foresee the accident?
Courts have held that the negligent method of operation theory applies when
* a racetrack sold bottled drinks and told its patrons to leave the empty bottles anywhere;(3)
* a grocery store used ice to chill produce and when the ice melted, the water leaked onto the floor;(4)
* a grocery store served meat samples to customers, some of whom dropped them on the floor;(5)
* a grocery store chain sold greens from self-serve bins, and customers dropped the vegetables on the floor;(6)
* a store sold avocado juice and allowed customers to consume the beverage as they shopped, resulting in spills;(7) and
* a discount department store chain allowed a McDonald's to sell food in an area adjoining the store.(8)
Some courts use a two-step analysis to determine whether the negligent method of operation theory applies. First, the plaintiff must prove that the method of operation is inherently dangerous or that the operation is being conducted in a negligent manner. Second, the plaintiff must show that the condition of the floor was created as a result of the negligence.
A word of caution: Some courts have held that the negligent method of operation theory applies only to a specific type of facility such as an arena where masses of people are expected. These rulings seem to specifically exclude supermarkets and make distinctions without differences. There is no real reason to carve out most cases from this rule, but some courts seem anxious to do so.(9)
In a recent case in which judgment for the plaintiff was affirmed, the appellate court held that evidence that a trash can was repeatedly overflowing was admissible to prove foreseeability and that a condition occurring with sufficient "regularity" is an alternative to proving that the defendant had notice.(10)
The theory of negligent maintenance can be used where the dangerous condition --even if caused by an outside source--either occurs often or is allowed by the defendant to occur. For example, the defendant store owner may be guilty of negligent maintenance when an area of the floor is constantly getting wet from a source the defendant does not control, and the defendant fails to clean it up. A customer should be able to bring a claim without proving how long the substance was on the floor.
One court articulated this theory in a case involving a cruise ship when it held that
actual or constructive knowledge is irrelevant in cases not involving transitory, foreign substances (i.e., the typical banana peel case), if ample evidence of negligent maintenance can be shown. Here, plaintiffs offered testimony that the constant wetness on the deck, even on otherwise dry days, could be attributable to sea spray or to condensation caused by steam escaping from a nearby smokestack, but that nevertheless, the surface of the deck easily could have been made skid-proof if properly coated and maintained.(11)
The premises owner should not escape liability for a problem that occurs repeatedly merely by posting a sign in the area. Signs can be too little, too late, certainly for someone walking through an area inundated by signage, lighting, people, noises, and other distractions. In fact, warning signs can be used as evidence that the premises owner knew of the dangerous condition.(12)
Potential defendants in any premises liability case include the owner and manager of the property. Most courts hold that ownership alone is not sufficient to extend liability to a party. The owner must have had some management authority to control the property.(13)
To determine the identity of the owner, check the tax rolls and real property records. After you get the owner's name, call or write the owner to determine whether some other entity managed the property. You should also visit the premises to see whose names appear on the signs posted there.
The client's receipts from the store, hotel, or other premises may also identify the management company. The phone book is another source of information. The listing for the premises may identify the corporation or other business entity that manages it.
Other potential defendants include food service concessionaires and cleaning service providers. These are typically independent contractors of the business owners or managers.
The concessionaire in a concert hall, for example, may be liable under the negligent method of operation theory because it failed to safely transport food from the kitchen to the concession, and food spilled out of the containers and caused a slip and fall. The concessionaire may also be liable under a negligent maintenance theory if it allows restocking of the stand to occur during a concert.
Independent cleaning service companies may be responsible for accidents in retail stores or commercial office buildings. A cleaning service may leave wax or polish residues on the floor, causing falls. Or cleaning crews may begin mopping floors before workers have left office buildings. The service should not only post warning cones by slippery floors but also go into offices or shopping areas to warn people verbally of a hazard. Otherwise, people may walk onto a slick floor before they see the warning cones.
Franchisors are another group of potential defendants. Although they will claim that their franchise agreement stipulates that they have no connection to the business's management, the test is not whether the company calls itself a franchisor, owner, manager, or uses any other title. The test is whether the company has control or the right to control the management of the premises.
Franchise documents may reveal that the franchisor sets regulations and policies about managing the premises. The franchisor may also have the right to periodically inspect the premises to verify that the franchisee's management has met the standards.
Franchisors usually have the right to terminate a franchise or warn a franchisee that it must bring itself into compliance. This is control, which could subject the franchisor to liability.
The initial request for documents should include, at a minimum, a request for agreements between the business owner and the property management company, the property management company and its franchisor, and the property management company and its subcontracted cleaning company.
These agreements will help identify defendants based on the amount of control the entities have over the cleaning, maintenance, repair, and safety operations of the premises. The agreements may also delineate the companies' responsibilities for maintenance or cleaning. These documents can often be useful in a deposition in which company managers are unaware of their defined responsibilities.
Manuals and handbooks on operations, safety, loss prevention, and cleaning also can be essential. Handbooks may prescribe cleaning methods, violations of which can be evidence of negligence. Handbooks also may articulate that mopping or allowing substances to remain on the floor may cause injury. Have your experts review these manuals, express the industry standard, and provide an opinion that the defendant should have complied with the standard and by not complying violated that standard. If the defendant has no manuals, this fact may be useful in establishing negligence.
Also obtain employee videos regarding training, safety, accident prevention, cleaning, and maintenance. These will describe risks inherent in the business that the manager may not readily admit. The videos may provide information you can use to develop deposition questions for the business manager.
In addition, you should obtain employee time records to determine who was on duty at the time of the accident. A manager may testify that three people clean the area at all times when time sheets show only two people worked that day. The employee roster will also provide subjects to depose.
Experts may not be necessary in these cases, but they can be helpful. In one negligent method of operations case involving a concert hall, my firm retained a former dean of a local university school of hospitality. We showed that before or during concerts, the concessionaire restocked a concession stand with Coca-Cola syrup by hand-carrying boxes of the syrup from a storage room to the concession stand about 300 feet away. The expert testified that the concessionaire should have used different procedures to restock the stands. The restocking should have taken place before the event, and the food and beverages should have been transported in a cart with sides to contain spills.(14)
The same expert testified that both the concessionaire and the management company used negligent cleaning procedures. The management company did not assign cleaners to any zones in the concert hall and did not require them to inspect the floor in any particular pattern or route. The cleaners conceivably could have walked through and inspected only certain areas, leaving others uninspected and uncleaned. Also, the expert testified that cleaners who were not assigned particular zones or routes would travel routes that were out of their supervisor's view, then congregate and begin socializing with each other.
The theories of negligent method of operation and negligent maintenance are not new, but they tend to be overlooked by attorneys handling slip and fall cases. They are based on the age-old concept of foreseeability. When more common liability theories won't work, these alternatives can help you pursue your clients' claims.
(1.) Publix Super Market, Inc. v. Sanchez, 700 So. 2d 405, 406 (Fla. Dist. Ct. App. 1997) (per curiam), review denied, 717 So. 2d. 537 (Fla. 1998); Schaap v. Publix Super Markets, Inc., 579 So. 2d 831, 834 (Fla. Dist. Ct. App. 1991).
(2.) See, e.g., Wal-Mart Stores, Inc. v. Reggie, 714 So. 2d 601 (Fla. Dist. Ct. App. 1998), Sanchez, 700 So. 2d 405, 406; Mabrey v. Carnival Cruise Lines, Inc., 438 So. 2d 937, 938 (Fla. Dist. Ct. App. 1983).
(3.) Wells v. Palm Beach Kennel Club, 35 So. 2d 720, 721 (Fla. 1948).
(4.) Torda v. Grand Union Co., 157 A.2d 133, 134 (N. J. Super. Ct. App. Div. 1959).
(5.) Little v. Butner, 348 P.2d 1022 (Kan. 1960).
(6.) Wollerman v. Grand Union Stores, Inc., 221 A.2d 513, 514 (N.J. 1966).
(7.) Jackson v. K-Mart Corp., 840 P.2d 463,466-67 (Kan. 1992).
(8.) Gump v. Wal-Mart Stores, Inc., No. 21670, 1999 Haw. App. LEXIS 180, at *30 (Haw. Ct. App. Nov. 17, 1999).
(9.) See, e.g., Soriano v. B&B Cash Grocery Stores, Inc., No. 98-1668, 1999 Fla. App. LEXIS 5721, at *5-*6 (Fla. Dist. Ct. App. May 5), review granted, 744 So. 2d 456 (Fla. 1999); Rowe v. Winn-Dixie Stores, Inc., 714 So. 2d 1180, 1180 (Fla. Dist. Ct. App. 1998), review denied, 731 So. 2d. 650 (Fla. 1999); Schaap, 579 So. 2d 831.
(10.) See Wal-Mart. 714 So. 2d 601.
(11.) See Mabrey, 438 So. 2d 937, 938 (Fla. Dist. Ct. App. 1983) (citation omitted).
(12.) See, e.g., id. (holding that a "slippery when wet" sign was evidence that the defendant knew the deck was dangerous).
(13.) See, e.g., Craig v. Gate Maritime Properties, Inc., 631 So. 2d 375, 377 (Fla. Dist. Ct. App. 1994); Regency Lake Apartments Assoc., Ltd. v. French, 590 So. 2d 970, 974 (Fla. Dist. Ct. App. 1991).
(14.) Sullivan v. CDC/SMT, Inc., No. 96-013788 (03) (Fla., Broward County Cir. Ct. settled Nov. 30, 1998).
Jack Hickey is an attorney at Hickey & Jones in Miami.