Section 13.89 Defendant’s Knowledge

• Library: Tort Law 2016

1. (§13.89) Defendant’s Knowledge

Although the cases that follow involve an invitee-inviter relationship, the defendant’s knowledge of a defective condition is a mandatory element of the plaintiff’s burden of proof in every verdict-directing instruction contained in the 22.00 series of Missouri Approved Jury Instructions (7^th ed. 2012). If a plaintiff fails to present evidence from which a jury can infer that the defendant either knew or by using ordinary care could or should have known of the existence of a defect, the plaintiff’s cause will fail. This element of knowledge can be satisfied in a variety of ways, including proof that:

· the defendant created the condition;

· the condition existed for a sufficient period of time so that in the exercise of ordinary care, the defendant could or should have known of it; or

· the defendant actually discovered the condition but failed to properly correct it or warn of it.

The cases that follow illustrate these methods of proof.

In Alvey v. Sears, Roebuck & Co., 360 S.W.2d 231 (Mo. 1962), the plaintiff tripped and fell on a hard, round object that was in an aisle of the defendant’s store. The plaintiff satisfied the element of the defendant’s knowledge of this condition by evidence that one of the defendant’s employees, whose duty it was to be on the lookout for foreign objects, had proceeded down this same aisle approximately 15' in front of the plaintiff with no one between them and that this employee had gone by the spot where the plaintiff fell within seconds of her fall. See also Morrison v. St. Luke’s Health Corp., 929 S.W.2d 898, 903–04 (Mo. App. E.D. 1996) (the length of time that a briefcase was in a hallway was not the determining factor in establishing a submissible case; the issue of whether the defendant’s medical assistant, who was escorting the plaintiff, should have noticed the briefcase was for the jury).

On the other hand, the mere presence of an employee within visual distance of debris is not necessarily sufficient to satisfy the notice element. In Poe v. Safeway Stores, Inc., 409 S.W.2d 746 (Mo. App. W.D. 1966), the plaintiff fell on a piece of lettuce that was on the floor of the defendant’s store approximately 2 feet from a checkout counter. One of the defendant’s employees was operating a cash register, and another was sacking groceries. In distinguishing Alvey, the court stated that the plaintiff failed to produce evidence that either of these employees had the responsibility to keep a lookout for foreign objects on the floor, to remove foreign objects, or to warn customers of their existence. Also, the evidence demonstrated that they were busy waiting on customers for a substantial period of time before the accident. Accordingly, the plaintiff’s case failed because she failed to establish the notice element.

Before the decision in Sheil v. T.G. & Y. Stores Co., 781 S.W.2d 778 (Mo. banc 1989), the courts, in determining whether there was sufficient evidence of notice to the defendant, often considered whether the debris or other obstacle had remained on the floor for a sufficient period of time for the defendant to have discovered it in the exercise of ordinary care. See:

· Robinson v. Great Atl. & Pac. Tea Co., 147 S.W.2d 648 (Mo. 1941) (10 to 15 minutes was not sufficient time to charge the defendant with constructive notice of a box of potatoes being pushed into an aisle)

· Stocker v. J. C. Penney Co., 338 S.W.2d 339 (Mo. App. E.D. 1960) (evidence that a wad of gum on which the plaintiff tripped had been on the staircase for approximately one-and-one-half hours was sufficient to create an issue for the jury as to whether the defendant, in the exercise of ordinary care, should have discovered its existence and removed it)

· Grant v. Nat’l Super Mkts., Inc., 611 S.W.2d 357 (Mo. App. E.D. 1980) (the mere presence of grapes on a floor for 15 to 20 minutes was insufficient as a matter of law to establish constructive notice on the part of the defendant)

· Vinson v. Nat’l Super Mkts., Inc., 621 S.W.2d 373 (Mo. App. E.D. 1981) (defendant was entitled to a directed verdict when there was no evidence that the defendant had actual or constructive knowledge of a broken bottle of Pinesol that had spilled on the floor)

The court in Sheil v. T.G. & Y. Stores Co., 781 S.W.2d 778, 780 (Mo. banc 1989), addressing a fall in a self-service store, referenced the Grant case but stated: "By our holding, the precise time will not be so important a factor. More important will be the method of merchandising and the nature of the article causing the injury."

Even before Sheil, the length of time sufficient to put a defendant on notice of a foreign substance on the floor could be affected by the particular facts of a case. In Hogan v. S.S. Kresge Co., 93 S.W.2d 118 (Mo. App. E.D. 1936), the plaintiff fell on some melted ice cream on the floor of the defendant’s store. The plaintiff was able to produce evidence that this ice cream had been on the floor for approximately 30 to 40 minutes and that the defendant had an employee whose duty it was to circulate through this particular aisle every 15 minutes to clean up debris. The court held that, in view of the defendant’s employee’s obligation to...