Falls in Markets

• Author: Charles E. Turnbow
• Pages: 424-451

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CHAPTER 18

Falls in Markets

§1800 Introduction

§1801 Basis of Law

§1802 Critical Elements

§1803 Three Basic Items

§1804 Application of Premises Liability Law

§1805 Burden of Proof

§1810 Proving the Elements

Case 1: Defendant Store Has Duty to Inspect

§1811 The Wollerman Rule

§1820 Source of Hazard

Case 1: Absence of Hazard

Case 2: Mysterious Causes

§1830 Business Owner’s Duty

Case 1: Failure to Warn

Case 2: Failure to Inspect

Picture: Cluttered Aisles

§1840 Establishing Notice

Case 1: Sweeping Logs

§1840.1 New Technologies

Case 2: Special Maintenance Problems – 24-Hour Market

Case 3: Gratuitous Use of Premises

Case 4: Failure to Inspect

§1841 Mode of Operation

§1842 Merchandise and Other Distractions

Case 1: Distracting Display

Picture: Riser and Warning Sign

§1850 Questions and Answers

Figure 18-1: Typical Grocery Store Sweep Log

§1851 Employee Training

Case 1: Employee Training

§1852 Distractions

Case 1: Distractions in the Store

§1860 Demonstrative Evidence

§1861 Photographs

§1862 Video

§1870 Supermarket and Retail Store Checklist

§1880 Additional Sources

§1881 Sample Complaint for Fall in Supermarket

§1882 Demand for Production of Documents

§1883 Demand for Inspection of Property

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§1800 SLIP AND FALL PRACTICE 

§1800 Introduction

Falls in retail stores and other businesses are not the most

common slip and fall accidents, but they are probably the

most litigated. The relationship between the business owner

and the patron has created a special duty to provide premises

that are reasonably safe. Even where there is no distinction

between invitees and licensees, special duties are charged to

the business owner.

The duty may be based on traditional common law or on

the newer concept of the so-called “mode of operation”

theory of liability. The manner in which the merchandise

is packaged or displayed may impose additional duties on

the business owner. In Bloom v. Fry’s Food Stores, 130

Ariz. 447 (Ariz. Ct. App. 1981), the court held that the

plaintiff may be relieved of the burden of proving notice

where the occurrence of a transitory hazardous condi-

tion may be reasonably anticipated. See also Chiara v.

Fry’s Food Stores, 733 P.2d 283 (Ariz. 1987); Lopez v.

Superior Court, 45 Cal. App. 4th 705 (Cal. App. 2d Dist.

1996). Bloom involved a patron of the grocery store fall-

ing after stepping on grapes. The grapes were displayed

loose in bins. There was no evidence that could be used

to determine how long the grapes had been on the floor.

The rationale of the court was that sooner or later grapes

would be likely to fall to the floor when they were dis-

played in this manner, and therefore the store had a duty

to anticipate this occurrence. “[I]n a self-service market

operation, the storekeeper must take reasonable protective

measures for the benefit of customers who might slip and

fall on vegetable material dropped on the floor by others.”

(Lopez v. Superior Court, 45 Cal. App. 4th 705, 716 (Cal.

App. 2d Dist. 1996).)

After considering a similar case six years later, the court coined

the phrase “Mode of Operation” was coined to describe the

application of a relatively new rule that extended of the theory

of liability where the storekeeper would be negligent if he failed

to inspect or clean his store. Under this extension, the plaintiff

could establish liability “by showing that the operator of the

premises had failed to conduct periodic inspections and the fre-

quency required by the foreseeability of risk.” However, “[t]he

plaintiff must still prove that defendant failed to take reasonable

care to prevent injury.” Chiara v. Fry’s Food Stores, 733 P.2d

283, 285 (Ariz. 1987); Brooks v. Phillip Watts Enterprises, Inc.,

560 So. 2d 339, 341 (Fla. Dist. Ct. App. 1st Dist. 1990); Jackson

v. K-Mart Corp., 828 P.2d 941, 947 (1992), aff’d 840 P.2d 463

(1992); Pimentel v. Roundup Co., 666 P.2d 888, 893 (1983);

Ortega v. Kmart Corp., 26 Cal. 4th 1200, 36 P.3d 11 (2001).

These cases shift the burden to the defendant to prove that he

took adequate precautions to make his store safe by regular and

frequent sweeping or inspections. In Lopez v. Superior Court, 45

Cal. App. 4th 705 (Cal. App. 2d Dist. 1996), the court found that

reasonable care to prevent injury could include the addition or

alteration of floor surfaces which would not present a slipping

hazard when wet or contaminated.

Thus the manner of operation and the type of articles on

display are more important than the length of time the

object had been on the floor. Where the hazardous condi-

tion is the results of a failure to reasonably maintain the

premises, this failure may be the basis for negligence and

actual or constructive notice is not necessarily required.

The plaintiff may be excused from proving notice where

the existence of the hazard is reasonably foreseeable.

See Morton v. Lee, 75 Wn.2d 393 (1969); Pimentel v.

Roundup Co., 100 Wn.2d 39, 666 P.2d 888 (1983); Sheil

v. T.G. & Y. Stores Co., 781 S.W.2d 778 (Mo. 1989);

Jackson v. K-Mart Corp. 840 P.2d 463, 469 (1992);

Gump v. Wal-Mart Stores, Inc., 5 P.3d 407, 411 (Hawaii

2000).

“If the store owner’s practices create a higher risk that

dangerous conditions will exist, ordinary care will require

a corresponding increase in precautions.” Moore v. Wal-

Mart Stores, Inc., 111 Cal. App. 4th 472 (Cal. App. 5th

Dist. 2003.) (For an additional discussion of mode of

operation, see §233.1, supra.)

§1801 Basis of Law

Plaintiffs used to be faced with a frightful burden of proving

both breach of duty and notice. Over time, the courts eased

plaintiffs’ burden. For example, in 1954 a California court in

Hale v. Safeway Stores, Inc., 129 Cal. App. 2d 124 (Cal. App.

1954) held that frequent inspection of the sales areas in markets

was necessary and that 12-15 minutes between inspections

would not be unreasonable.

Other states adopted a similar rule, holding that the foreseeability

of the circumstances would create a condition that could pose a

danger to the patrons. As a result of the number of lawsuits

and as a means of providing a reasonably safe shopping envi-

ronment, supermarket and grocery chains developed safety

procedures through which the hazards could more quickly be

identified and abated. Chiara v. Fry’s Food Stores, 733 P.2d

283, 285 (Ariz. 1987); Brooks v. Phillip Watts Enterprises,

Inc., 560 So. 2d 339, 341 (Fla. Dist. Ct. App. 1990); Jackson

v. K-Mart Corp., 828 P.2d 941, 947 (1992), aff’d 840 P.2d

463 (1992); Pimentel v. Roundup Co., 666 P.2d 888, 893

(1983); Ortega v. Kmart Corp., 26 Cal. 4th 1200, 36 P.3d

11 (2001).