Slip And Fall Cases: Alternative Theories Of Liability
Using The Negligent Method Of Operation And Negligent Maintenance Theories
This article will provide a brief outline of “alternative” theories of liability in a slip and fall case. The law on the defendant’s liability in a slip and fall case in most states is clear and well settled. The plaintiff has the burden to show either that the defendant, manager of the property, created the dangerous condition or that the defendant had actual or constructive knowledge of the dangerous condition. Constructive knowledge may be inferred from either (1) the amount of time a substance has been on the floor, or (2) the fact that the condition occurred with such frequency that the owner should have known of its existence. Publix Supermarket, Inc. vs. Sanchez, 700 S.2d 405, 406 (Fla. 3rd DCA 1997);Schaap vs. Public Supermarket, Inc., 579 S.2d 831 (Fla. 1st DCA 1991); Markowitz vs. Helen Homes, 736 S.2d 775 (Fla. Dist. Ct. App. 3d Dist 1999);Thompson vs. Poinciana Place Condo. Ass’n, 729 S.2d 457 (Fla. Dist. Ct. App. 4th Dist. 1999); Friar vs. The Kroger Company, 1998 Tenn. App. LEXIS 248 (1998); D’Aprile vs. Rolling Hill Hospital, 28 Pa.D. & C. 4th 430 (1995); Napell vs. Aten Department Store, Inc., 115 F.Supp.2d 1275 (U.S. Dist. Ct. Ka. 2000).
LIABILITY LOOKS TENUOUS
The problem arises of course when the new client walks in the door. She tells you that she slipped and fell at the ABC Supermarket. Right away, you think about the viability of the defendant. The prospective client then tells you about her damages. She broke her leg in the fall. That day, she went to the hospital where they took x-rays, diagnosed a fracture of the tibia, applied a cast to her leg and sent her home. After that, the leg did not heal well, she had to take off work because of the pain and her inability to use that leg as she did before, and her doctor now recommends open fixation surgery or joint replacement. You are now thinking about the substantial damages in the case.
You then ask the client; “How did you fall?” Chances are, she is going to say one of several things; (1) “I don’t know”; (2) “I fell in this huge puddle of soapy water that was put there by some employee who had mopped and forgot to put out the warning signs”, (3) ” I fell on some trash which was on the floor; I think it was a plastic cup.” The next question of course should be: “How long was it on the floor?” More times than not, your client will tell you she has no earthly idea. In the case where she fell in the soapy water, timing should not be an issue. The defendant store was responsible for putting the soapy water where it was.
The difficulty is in the scenarios in which you cannot show how long the materials or substance was on the floor or the source of the substance, whether the source was an employee of the store or a customer. In those cases, you have to show actual or constructive knowledge of the dangerous condition, the substance on the floor. Constructive knowledge is shown when the substance was on the floor for a sufficient period of time such that the defendant should have known of its existence. Cases have held, for example, that 15 minutes is a sufficient period of time, certainly to avoid summary judgment. See, e.g., Winn Dixie Stores, Inc. vs. Williams, 264 So.2d 862 (Fla. 3d DCA 1972). (Judgment for Plaintiff affirmed where substance had been on floor 15 to 20 minutes). The issue of the length of time a substance or material has been on the floor can be shown with circumstantial evidence, such as the condition of the debris or the amount of debris on the floor. See, Skipper vs. Barnes Supermarket, 573 So.2d 411 (Fla. 1st DCA 1991), (Summary Judgment for Defendant reversed where noodles on floor of supermarket were broken); and Gonzalez vs. Tallahassee Medical Center, Inc., 629 So. 2d 945 (Fla. 1st DCA 1993) (where Summary Judgment for Defendant reversed. The Plaintiff fell in liquid which had become syrupy). Whether there were any scuff marks or tracks of shopping carts or other machinery through the substance may indicate that the substance had been on the floor long enough for people to walk through. If your client was in the isle in which the substance was located for a length of time, and no one else was in that isle during that time to put the substance there, that is evidence of the minimum length of time the substance was on the floor.
The court in Teate v. Winn-Dixie Stores, Inc., in reversing a directed verdict for defendants, found that evidence supported a jury’s finding of constructive notice, where the plaintiff had slipped on some peas in the store’s frozen food section, and there was evidence of water, which might have indicated the peas had been present on the floor long enough to begin thawing. Teate, 524 So.2d 1060 (Fla. 3d DCA 1988).
Where a customer slipped on a collard leaf, the Supreme Court of Florida in Montgomery v. Florida Jitney Jungle Stores, Inc., 281 So.2d 302 (Fla. 1973) looked to the old, wilted, and dirty condition of the leaf in determining that evidence supported constructive notice. Montgomery, 281 So.2d at 303.
When presented with plaintiff’s testimony that she fell in on a dirty, oily floor which was littered with cigarette butts and candy wrappers, as well as cart tracks and footprints, the appellate court in Altman v. Publix Supermarkets, Inc., 579 So.2d 351 (Fla. 3d DCA 1991) found that there was sufficient evidence to send the question of constructive notice to the jury.
The court in Colon v. Outback Steakhouse of Florida, Inc., 721 So.2d 769 (Fla. 3d DCA 1998) reversed summary judgment for defendant. The Plaintiff slipped and fell in a potato. She testified that the potato looked mushy and dirty when she saw it after her fall. Colon, 721 So.2d at 771.
Another example of evidence of timing is in the case of frozen foods. If the substance is ice cream, for example, and the ice cream had melted by the time your client slipped in it, that would indicate the length of time in which the ice cream was on the floor.
The negligent method of operation and the negligent maintenance theories can be crucial in cases in which there is no evidence as to the length of time the substance was on the floor. These theories provide the basis of liability either where the defendant through its repeated conduct has created a dangerous condition (negligent method of operation) or where a repetitive condition, perhaps not caused by the defendant, is not cleaned up by the defendant (negligent maintenance). In any event, the court should recognize both theories as separate and apart from the requirements of actual or constructive notice. It all comes down to foreseeability. That is, was the accident reasonably foreseeable by the defendant given the circumstances?
The negligent method of operation theory applies where, for example, a concessionaire chooses to hand carry boxes of Coca-Cola syrup through a congested area in a stadium or concert hall to restock concession stands; (Last year, the author settled such a slip and fall for $650,000.00).Thompson vs. American Drug Stores, Inc., 326 Ark. 536; 932 S.W. 2d 333 (1996); Flocco vs. Super Fish Markets, Inc., 1998 U.S. Dist. LEXIS 20266 (1998); Olesky vs. National Railroad Passenger Corporation, 1999 U.S. Dist. LEXIS 12099 (1999); Booth vs. Wal-Mart Stores, Inc., 75 F. Supp. 2d 541 (U.S. Dist. 1999); Lane vs. Hardee’s Food Systems, Inc., 184 F, 3d 705 (1999); where, at a racetrack, patrons were sold bottles of drinks and were directed to set the empty bottles anywhere they could find space to place them; Wells vs. Palm Beach Kennel Club, 35 S.2d 720 (Fla. 1948); where a grocery store used ice to chill its produce and the plaintiff slipped on a vegetable leaf on the wet floor of the produce department; Torda vs. Grand Union Company, 157 A.2d 133 (New Jersey Super. CT. App. Dic. 1959); where a grocery store served samples of meats to its customers, resulting in the customers dropping samples of the meats onto the floor which eventually caused the plaintiff to slip and fall; Little vs. Butner, 348 P.2d 463 (KAN. 1992); where a grocery store chain sold greens from open bins on a self serve basis and plaintiff slipped and fell on a green bean in the produce section; Wollerman vs. Grand Union Stores, Inc., 221 A.2d 513 (NJ 1966); and where the defendant store sold small cans of avocado juice in the cafeteria and allowed customers to consume beverages and food from the cafeteria while shopping in the rest of the store and plaintiff slipped and fell in a green liquid spilled on the floor. Jackson vs. K-Mart Corporation, 840 P.2d 463 (KAN. 1992).
Some courts use a two step analysis to determine whether the negligent method of operation theory applies. It has been expressed that the plaintiff must prove: (1) either the method of operation is inherently dangerous, or the particular operation is being conducted in a negligent manner; and (2) the condition of the floor was created as a result of the negligent method of operation. In the grocery store context, if the ice, the green beans, or any other material which is likely to get onto the floor and to cause a fall is being served in open bins, the method of operation is inherently dangerous. In regard to the second requirement, the plaintiff should show the proximity of the material on the floor to where it was being served in the store. If the material on the floor is in close proximity to where the defendant chose to serve it, that should be sufficient for the court to allow the jury to decide the issue.
The theory of negligent maintenance can be used where the dangerous condition, even if caused by an outside source, repeatedly and frequently appears. For example, if an area of the flooring is constantly getting wet from some source which is not controlled by the defendant, and if the defendant fails to clean it up, the defendant store owner is guilty of negligent maintenance. If a customer falls, the customer should be able to bring a claim without proving how long the substance was on the floor. In Wal-Mart Stores, Inc. v. Reggie, 714 So.2d 601 (Fla. 4th DCA 1998), the fast-food restaurant inside a Wal-Mart store maintained its garbage containers at the entrance to the restaurant. A customer slipped and fell on the overflowing garbage from those containers. The court found that constructive notice could be inferred in two ways: the length of time the condition had existed or “by evidence that the condition occurred in that area with sufficient regularity as to be foreseeable”. Wal-Mart, 714 So.2d at 603.
This theory was most clearly articulated by one court which said that “actual or constructive knowledge is irrelevant in cases not involving transitory, foreign substances (i.e., the typical banana peal case), if ample evidence of negligent maintenance can be shown. [Citation] Here, plaintiffs offer 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 near by smoke stack, but that nevertheless, the surface of the deck easily could have been made skid proof if properly coated and maintained.” Mabrey vs. Carnival Cruise Lines, Inc., 438 S.2d 937, 938 (Fla. DCA 1983).
The premises owner should not be able escape liability for a problem which appears repeatedly merely by posting a sign in the area. Signs can be too little, too late, certainly for someone walking through an area in which ones senses are completely assaulted by signage, lighting, people, noises, and other distractions. Signs warning of a danger, in fact, can be used as evidence that the premises owner had knowledge of the dangerous condition. See, e.g., Mabrey vs. Carnival Cruise Lines, Inc., 438 S.2d 937, 938 (Fla. 3rd DCA 1983)(where the appellate court held that a “slippery when wet” sign was in fact evidence that the defendant had knowledge that the deck was dangerous).
The potential defendants in any premises liability case include the owner of the property and the manager of the property. Most courts hold that mere ownership is not sufficient to extend liability to a party. The owner must have had some right to control or actual control, that is management, over the property. See, e.g., Craig vs. Gate Maritime Properties, Inc., 631 S.2d 375 (Fla. 1st DCA 1994); and Regency Lake Apartments Associates, LTD vs. French, 590 S.2d 970 (Fla. 1st DCA 1991); Kaufman vs. Schmahl, 710 So.2d 150 (fla. Dist. Ct. App. 4th Dist. 1998);Brown vs. Suncharm Ranch, Inc., 748 So. 2d 1077 (Fla. Dist. Ct. App. 5th Dist. 1999); Sherlock vs. Kwik Sak, 19999 Tenn. App. LEXIS 657 (1999);Berado et al. vs. City of Mount Vernon et al., 262 A.D.2d 513; 694 N.Y. S.2d 403 (1999); Marks vs. Messick & Gray Construction, Inc., 2000 Del. Super. LEXIS 131 (2000); Lopez vs. The Superior Court of Los Angeles County, 45 Cal. App. 4th 705; 52 Cal. Rptr. 2d 821 (1996). Initially, in order to determine the identity of the owner of the property, we check the tax rolls and the real property records. After we get the name of an owner, we may call or write the owner to determine whether some other entity actually managed the property. Of course, a visit to the premises to see exactly whose names appears on the posted signs at the business can be helpful. The client can help by providing receipts from the store, hotel, or other premises which sometimes has useful information identifying the actual management company. The phone book, of course, also can be a useful source of information identifying some of the official fictitious or real corporate names of the corporation or other business entity which manages the business.
Other potential defendants include concessionaires of food services and cleaning services. These are typically independent contractors of the owners or managers of the business. The concessionaire, in a concert hall, for example, often are the ones guilty of the negligent method of operation. The concert hall itself may provide the cleaning services. Accordingly, one Defendant may be liable under the negligent method of operation, and perhaps both Defendant’s may be liable under a negligent maintenance theory. Of course, both the owner and the concessionaire may also be liable because of actual or constructive knowledge of the spill or other condition.
Cleaning services are oftentimes responsible for accidents either in retail space or in commercial office buildings. Sometimes, cleaning services are responsible for cleaning the floor during the normal business day. More often than not, however, they are responsible for cleaning after hours. We have found cases where cleaning services leave residues of waxes or polishes on floors, thus causing slip and falls. We have also found that cleaning services often times will start wet mopping floors in stores before everyone has left at the end of the day. The cleaning service which wet mops at a time when it knows or should know that people are working in the offices, even after hours, should warn them. The service should not only post warning cones in the hallway but also physically go into the offices to warn workers verbally. Otherwise, workers may walk out of their office and onto a slick floor before they have had an opportunity to see the warning cones.
Franchisers are another source of potential defendants. Franchisers will claim that the franchise agreement provides that they have absolutely no connection to the management of the individual business. However, the test is not whether a company calls itself a franchiser, owner, manager, or any other title. The test is whether the individual or entity has control or the right to control the management of the premises. In the franchise documents, you may find that the franchiser sets rules, regulations and policies about the management of the premises. Further, the franchiser may have the right to inspect and periodically does inspect the premises to verify that the franchisee’s management has met the standards. Franchisers usually have the right either to terminate a franchisee or to provide a warning to the franchisee so that the franchisee can bring itself into compliance. That is control and that should subject the franchiser to liability.
The initial request for production of documents should include at a minimum a request for any of the agreements between the owner of the business and the management company, the management company and its franchiser, and the management company and its subcontracting cleaning company. These agreements will help you identify defendants based on the amount of control other entities have over the cleaning, maintenance, repairs, and safety of the premises. These agreements also may delineate the lines of responsibility between the companies responsible for the maintenance or cleaning. Such agreements can be useful in deposition where the actual managers of the companies are unaware of the exact boundaries of their responsibilities.
Manuals and handbooks on operations, safety, loss prevention, and cleaning also can be essential as initial discovery. Each retail establishment either has or should have such a handbook. The fact that they do not have such a handbook is of course also useful in discovery. Such handbooks can prescribe the method of cleaning, the violation of which can be evidence of negligence. These handbooks also may articulate that wet mopping or allowing substances to remain on the floor has risk of injury. These rules and regulations should also be provided to your experts so that they can draw upon them in providing an opinion.
Training videos for employees should also be obtained. These videos will describe to the employee the risks inherent in the business which the manager of the defendant store may not readily admit otherwise. As soon as you obtain the training videos, watch them with a pen and paper in hand to outline and quote the video. The content of these videos also provide material for deposition questions of the manager of the business. Obtain all videos on training, safety, accident prevention, and cleaning and maintenance.
Also obtain time records of employees on duty at the time of the accident. A manager may testify that he thinks that three people are there to clean the area at all times when in actuality only two people showed up for work that day. The roster of employees also will provide you with subjects to depose.
Experts on negligent method of operation or negligent maintenance may not be necessary but can be crucial. We have retained in negligent method of operations cases, for example, a former dean of the school of hospitality of a local university. This expert testified that the concessionaire at a concert hall should have used different procedures to restock the concession stands. In that case, we showed that the concessionaire, sometimes during concerts, and sometimes before concerts, restocked concession stands with Coca-Cola syrup. The concessionaire did this by hand carrying the boxes of syrup from a storage room to the concession stand approximately 300 feet away.
That same expert testified to the negligent cleaning procedures used by both the concessionaire and the management company. The management company had cleaners but did not assign the cleaners to any zones and did not require the cleaners to travel the floor in any particular pattern. Thus, the cleaners conceivably could have walked through and inspected only certain areas leaving other areas completely without inspection or cleaning. Also, without assigning particular zones or routes, the cleaners, according to the expert’s experience, would tend to congregate and socialize with each other.
The theories of negligent method of operation and negligent maintenance are under-utilized, but certainly are not new. They are based on the age old concept of foreseeability. The discovery of any concession agreements, franchise agreements, and policy and procedure manuals and training videos can be important to your case. Always consider hiring an expert as to the method of operation or the cleaning procedures. This is a winning formula which should assist you in successfully prosecuting the claims of your clients.