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August 20, 2003 - Slip-and-Fall Liability Requires Proof of Notice-Appeals Court

A verdict of liability for a slip-and-fall is improper if the judge's instructions permit jurors to find for the plaintiff without proof of either actual or constructive notice of the dangerous condition, the Fifth District Court of Appeal ruled yesterday.

Justice Herbert Levy said the instructions given to a Stanislaus Superior Court jury by Judge Terry K. Cole in a suit by a Wal-Mart patron who slipped on a french fry did not conform to California law. While Hawaii and some other states have adopted a "mode of operation" rule imposing liability where premises owners should reasonably anticipate that dangerous conditions will regularly arise, California has not, Levy said.

The justice said Cole erred in accepting the argument of the plaintiff, Juanita Moore, that since Wal-Mart leased space within its store to a McDonald's restaurant, it should have anticipated that customers would frequently carry food into the store's shopping area and drop it on the floor.

Hourly Announcements

Evidence presented in the case showed that while a sign at the restaurant asked patrons not to carry food out into the store, and the store made hourly announcements to the same effect, customers regularly violated the rule and Wal-Mart employees observing their conduct did not attempt to enforce it.

The jury found for Moore and awarded her $ 750,000 in damages.

"Several of our sister states have embraced the trial court's viewpoint," Levy wrote. "Nevertheless, it is not the law in California."

The justice noted that the state Supreme Court ruled in Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200 that a plaintiff who was shopping at a Kmart and slipped on a puddle of milk on the floor could not recover in the absence of evidence of either the source of the dangerous condition or the length of time it existed before the accident.

Cole instructed jurors that if a business proprietor knows or should know that accidental, negligent or intentionally harmful acts of third persons are occurring or are likely to occur on the premises, the proprietor has the duty to warn or otherwise protect the visitor against such harm. Such an instruction has the effect of making the proprietor an insurer of the customer's safety, Levy explained.

While California law does not require a plaintiff to 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," this is a factual question on which juries must be instructed and which they must resolve, Levy declared.

Reasonable Inspection

Constructive notice can be established through evidence showing that the site "had not been inspected within a reasonable period of time," Levy observed. But he said California has not adopted the doctrine of "mode of operation" liability accepted by the Hawaii Supreme Court in Gump v. Wal-Mart Stores, Inc. (2000) 5 P.3d 407-also a case involving a plaintiff who slipped on a french fry in a Wal-Mart store with a McDonald's franchise.

Cole should have given BAJI No. 8.20, which Wal-Mart requested, or BAJI No. 8.24, each of which provides that either actual or constructive notice must be proven, Levy explained.

He noted that the newly revised civil jury instructions, effective next month, restate the principle involved as:

"In determining whether [defendant] knew or should have known of the condition that created the risk of harm you must decide whether, under all the circumstances, the condition was of such a nature and existed long enough so that it would have been discovered and corrected by an owner using reasonable care.

"If an inspection was not made within a reasonable time before the accident, this may show that the condition existed long enough so that a storeowner using reasonable care would have discovered it."

The justice declared:

"Thus, under 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. Moreover, it would not be prudent to hold otherwise. Without this knowledge requirement, certain store owners would essentially incur strict liability for slip-and-fall injuries....For example, whether the french fry was dropped 10 seconds or 10 hours before the accident would be of no consequence to the liability finding."

An owner's business practices are properly relevant in determining what precautions the duty of ordinary care requires, Levy said.

The instructional error was prejudicial since it eliminated an "element...essential to a finding of liability" from the jury's deliberations, he added.

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