Section 13.64 Knowledge of Defendant

• Library: Tort Law 2016

4. (§13.64) Knowledge of Defendant

The plaintiff must demonstrate that the defendant knew or by the exercise of ordinary care could have discovered the existence of the condition and thereafter had sufficient time to either correct the condition or warn of it. McElroy v. S. S. Kresge Co., 244 S.W.2d 425 (Mo. App. W.D. 1951). But this rule does not apply to self-service stores. Sheil v. T.G. & Y. Stores Co., 781 S.W.2d 778 (Mo. banc 1989). See the discussion in §§13.9 and 13.62 above. Generally, knowledge is easily shown when the defect in question is structural, one that must have necessarily existed for several weeks, months, or even years. On the other hand, this requirement may be insurmountable when the alleged defect is of a transitory nature, such as a puddle of water, and the plaintiff cannot prove how it came to be there or how long it had been present.

But in Moss v. National Super Markets, Inc., 781 S.W.2d 784 (Mo. banc 1989), the Supreme Court remanded the case for a new trial despite the absence of evidence as to how or when the slippery substance on which the plaintiff fell came to be on a store’s parking lot. The plaintiff did testify to the presence of footprints and tire marks in the substance. The Court suggested that, on retrial, the plaintiff could introduce evidence as to whether store employees regularly went onto the parking lot while assisting customers with groceries and retrieving carts. The Court went on to state that, with this evidence, the jury...