No recovery for slip and fall at arena.

Byline: David Ziemer

The Strack exception does not permit an arena to be found liable when a patron slipped on a french fry, without a showing of notice on the arena's part, the Wisconsin Court of Appeals held on Oct. 7.

On Feb. 6, 1998, Nancy Megal attended an ice show at the Brown County Veterans Memorial Arena. The arena has 61,000 square feet on three floors. It has the capacity to hold 5,248 people, and on this night, 4,220 tickets were sold.

After the show ended, Megal was exiting by walking down a stairway. The stairs were crowded and she could not see the stairs in front of her. She slipped on a two- or three-inch ketchup-soaked french fry on one of the stairs, fracturing an ankle.

She did not see the french fry before she slipped on it, nor did she know how long the french fry had been on the step.

The arena sells concessions and there are no restrictions on where patrons can take their concessions in the arena. During ice show performances, there are usually two people responsible for cleaning spills throughout the arena and for maintaining the restrooms.

There are no formal, written procedures for inspection of the premises. The employees clean the bathrooms and dust mop the floor near the concession stand, but they usually only clean up spills outside these areas when a customer or other arena employee reports them.

Megal sued the arena, alleging a violation of the safe-place statute, sec. 101.11, and common law negligence. The arena moved for summary judgment, and Brown County Circuit Court Judge William M. Atkinson granted the motion.

With respect to the safe-place violation, the court determined Megal could not prove the arena had actual or constructive notice of the dangerous condition. With respect to the negligence claim, the court concluded it was "pure speculation to argue any procedure or inspection pattern or number of personnel would have been able to locate, remove, and clean up the french fry."

Megal appealed, but the court of appeals affirmed in a decision written by Judge Gregory A. Peterson and joined by Judge Michael W. Hoover. Judge Thomas Cane dissented.

Strack Exception

The court concluded that Megal could not show that the arena had notice of the french fry, either actual or constructive, and that knowledge couldn't be imputed to the arena through the Strack exception (or "mode-of-operation rule)."

The safe-place statute requires a place of employment to be kept "as safe as the nature of the premises reasonably...