How Long Was That Slipping Hazard on The Floor?

Woodland Hills personal injury lawyer, Barry P. Goldberg, fields many questions about premises liability, slip and falls and business owners’ liability. The most common misconception is that a store owner is somehow necessarily liable for the injuries of its patrons because the injury occurred on the business premises. In fact, the jury instruction and California common law reads that a business owner is not liable unless the claimant proves certain conditions.

A store owner is not the insurer of its patrons’ personal safety, but does owe a duty to exercise due care in keeping its premises reasonably safe. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205 (Ortega).) The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury, i.e., damages. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917-918.) The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (Ortega, supra, 26 Cal.4th at p. 1205; see Civ. Code, § 1714, subd. (a).) A plaintiff suing for premises liability and negligence has the burden of proving that the owner had actual or constructive knowledge of a dangerous condition in time to correct it, or that the owner was “‘“able by the exercise of ordinary care to discover the condition.”’” (Ortega, supra, at p. 1206, quoting Hatfield v. Levy Brothers (1941) 18 Cal.2d 798, 806.)

One of the most common calls to a personal injury attorney is that there was a “slip and fall” at a market or restaurant. In the intake interview, the attorney must ask and discover 1) What did the claimant slip on? 2) How did the substance get there? And 3) How long was the substance present? The import of the last question is that a store is still not liable for a slip and fall if the substance was so freshly dropped that the store A) did not know the substance was there; and B) that the store owner did not have a sufficient time within which to reasonably discover and clean up the substance.

Among the plaintiff’s bar, there are stories exchanged how to overcome the seemingly impossible task of showing how long a substance was present. Was the liquid present long enough to show previous foot prints? Were the edges of the spill dried? Did the substance change color? Is there a store video? Are the sweep sheets obviously created at the end of the day, rather than contemporaneously? The list goes on. Anecdotally, about 20 minutes is the time when most experts, judges and juries believe that a spill must be reasonably located and cleaned up.

Where a plaintiff cannot establish actual notice of a dangerous condition, a plaintiff can establish constructive notice by circumstantial evidence. (Ortega, supra, 26 Cal.4th at p. 1210.) In that case, “evidence of the owner’s failure to inspect the premises within a reasonable period of time is sufficient to allow an inference that the condition was on the floor long enough to give the owner the opportunity to discover and remedy it. [Citation.]” (Id. at p. 1203, fn. omitted.) Although a business owner’s constructive knowledge of a dangerous condition may be inferred from a failure to inspect the premises within a reasonable time, speculation and conjecture are insufficient to sustain the plaintiff’s burden on summary judgment. (Id. at pp. 1205-1206.)

Whether a dangerous condition existed long enough for a reasonably prudent person to have discovered it is ordinarily a question of fact for the jury. (Ortega, supra, 26 Cal.4th at p 1207.) However, if the evidence does not support a reasonable inference that the hazard existed long enough to be discovered in the exercise of reasonable care, a court may resolve the issue of notice as a matter of law. (Id.) As a result, a business owner is entitled to summary judgment if the plaintiff cannot show that the dangerous condition existed for at least a sufficient time to be discovered by ordinary care and inspection. (Id.)

A good example that the store will use is from a 1949 case, Girvetz v. Boys’ Market (1949) 91 Cal.App.2d 827 (Girvetz). In Girvetz, the plaintiff slipped on a banana or banana peel that had fallen on the floor of the defendant’s grocery store. The only evidence as to how long the dangerous condition existed before the plaintiff’s fall was “the testimony of a customer that she saw the banana on the floor ‘a good minute and a half’ before the happening of the accident.” (Girvetz, supra, 91 Cal.App.2d at p. 828.) The court in Girvetz stressed that “the exact time the condition must exist before it should, in the exercise of reasonable care, have been discovered and remedied, cannot be fixed, but varies according to the circumstances.” The court held that under the circumstances, one and a half minutes was insufficient to support an inference that the defendant failed to exercise the care required of it. (Id.)

If you or a loved one was involved in a slip and fall accident in a market or similar environment, be prepared to discuss with your personal injury attorney how long the spilled substance was present, and why.