Fact Pattern
Samantha Smith came into your office. She was shopping at a local grocery store a few months ago and had an accident. While she was in the aisle with shower items she slipped and fell on some shampoo that had leaked out of one of the bottles.
Samantha had to be taken to the hospital. She was diagnosed with a broken hip and had to spend the night in the hospital. She will also have to go through many months of physical therapy. Samantha has no healthcare insurance and is a young single mother to a 2 year old son.
The store says that they were not aware of the spill of the shampoo. The store said that an employee checks the aisles for anything on the floors at the top of the hour. The day Samantha fell, the employee in charge of the aisle inspection was an older gentleman with glasses. The shampoo on the floor was a clear gel. She fell about 1:30 p.m. The store log says an inspection was last done at 12:45 p.m. The accident happened in a store in Indiana.
Secondary Sources
Timothy C. Caress & Marie Troendle Greer, Recent Developments in Indiana Tort Law, 36 IND. L. REV. 1303 (2003)
In “Recent Developments in Indiana Tort Law”, under heading II Premises Liability, the authors discuss whether a possessor of land could be held liable for injuries sustained by a third party if the possession had no previous notice of defect or dangerous situation. In the example, Wellington Green Homeowners' Association v. Parsons, 768 N.E.2d 923 (Inc. Ct. App. 20025), the court held that the landowner could not be held liable for the plaintiff’s injuries; because there was no proof that they landowner had or should have had any previous knowledge of the dangerous defect.
Alan J. Jacobs, Premises Liability, 62A AM.JUR.2D § 542 (2012)
While the article “Premises Liability specifies falling on a stairway or ramp, it clarifies whether a store owner would be liable for a fall if the store had actual or constructive knowledge of the debris or litter constituting a dangerous condition. It states the store would have had constructive knowledge of the dangerous condition if it had been there long enough so that “in the exercise of ordinary care it should have been discovered by the owner.”
Black's Law Dictionary (9th ed. 2009) is a great reference when needing a definition of legal terms. For example:
Premises Liability. “A landowner's or landholder's tort liability for conditions or activities on the premises.” Black's Law Dictionary (9th ed. 2009), Premises Liability
Constructive Knowledge. “Knowledge that one using reasonable care or diligence should have, and therefore that is attributed by law to a given person .” Black's Law Dictionary (9th ed. 2009), Knowledge
Primary Sources
Vaughn v. National Tea Co., 328 F.2d 128 (7th Cir. 1964)
Facts
Vaughn, Plaintiff-Appellee, slipped on a lettuce leaf and fell while shopping at National Tea Company, Defendant-Appellant. The lettuce leaf showed evidence that it had been there for some time and had been stepped on by other customers. The produce clerk testified that she did not remember sweeping, cleaning, mopping, or picking anything up from the produce aisle on the day prior to the slip and fall. Plaintiff suffered a ruptured disc in her cervical spine with required surgery. The Plaintiff filed suit against Defendant for damages. The case tried to a jury which found for the Plaintiff and awarded damages in the sum of $25,000.00. Defendant appealed, contending that the record contains no evidence of any negligence on the part of the Defendant.
Issue
Did the Defendant-National Tea Co., have constructive or actual knowledge of the debris on the floor, therefore liable for the injuries sustained by Plaintiff-Vaughn, when she slipped and fell?
Rule
Negligence is defined as “The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others again unreasonable risk of harm.” Black's Law Dictionary 1133 (9th ed. 2009)
The condition of the lettuce leaf immediately after it have been stepped upon is of probative value is determining the length of time it had been of the floor. Great Atlantic & Pacific Tea Co. v. Popkins, 260 Ala. 97, 69 So.2d 274, 376; Gallagher v. Stop and Shop, Inc., 332 Mass. 560, 126 N.E.2d 190, 192; Goldsmith v. Mills, 130 Cal.App.2d 493, 279 P.2d 51, 52. “The lettuce leaf was shown to have been dirty, crumpled and mashed. The jury could find from that condition that it had been on the floor long enough to have raised a duty on Defendant to discover and remove it.”
Breach of Duty is defined as “The violation of a legal or moral obligation; the failure to act as the law obligates one to act; esp., a fiduciary's violation of an obligation owed to another.” Black's Law Dictionary 214 (9th ed. 2009)
Analysis
Because the condition of the lettuce showed that it had been on the floor for a extended period of time, the jury concluded that Defendant’s failure to discover and remove it was a breach of duty and negligent. Defendant is liable for Plaintiff’s injuries.
Conclusion
The U.S. Court of Appeals Seventh Circuit affirmed the lower court’s decision.
Carmichael v. Kroger, 654 N.E.2d 1188 (Ind. Ct. App. 1995)
Facts
Carmichael, Appellant-Plaintiff, sued The Kroger Company, Appellee-Defendant for damages for injuries sustained in a slip and fall. Plaintiff slipped on a broken egg and fell at approximately 2:00 p.m. in the dairy aisle of a Kroger Store. An employee for Kroger had checked the aisle just after 2:00 p.m. and “made sure that the aisleway was clear for customers” The jury ruled in favor of the Defendant and Plaintiff appealed.
Issue
Did Defendant-Kroger, have constructive or actual knowledge of the debris on the floor, therefore liable for the injuries sustained by Carmichael-Plaintiff?
Rule
Negligence is defined as “The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others again unreasonable risk of harm.” Black's Law Dictionary 1133 (9th ed. 2009)
Breach of Duty is defined as “The violation of a legal or moral obligation; the failure to act as the law obligates one to act; esp., a fiduciary's violation of an obligation owed to another.” Black's Law Dictionary 214 (9th ed. 2009)
Before liability may be imposed on the invitor, it must have actual or constructive knowledge of the danger. Bearman v. University of Notre Dame, Ind. App., 453 N.E.2d 1196, 1198 (1983)
Analysis
Plaintiff was unable to prove that Defendant had knowledge, constructive or otherwise, of a broken egg in the dairy aisle. Therefore, Defendant was not negligent in its duty to the customer and cannot be held liable for Plaintiff’s injuries.
Conclusion
The Court of Appeals of Indiana held that Plaintiff failed to carry the burden of proof and affirmed the lower court’s decision.
St. Mary's Medical Center v. Loomis, 783 N.E.2d 274 (Ind. Ct. App. 2002)
Facts
Dr. Loomis brought negligence action against hospital following a slip-and-fall on hospital premises. The Vanderburgh Superior Court, Wayne S. Trockman, J., entered judgment pursuant to jury verdict that assessed 100 percent of fault to hospital and awarded $16,950,000 in damages to surgeon. Hospital appealed. Dr. Loomis, a neurosurgeon in private practice in Evansville, had surgery privileges at the Hospital. On November 19, 1998, Dr. Loomis was visiting his patients and stopped at the nearby pantry to pour himself a cup of coffee. While retrieving the coffee pot from the sick, Dr. Loomis slipped and fell backwards onto his left side. Dr. Loomis injured his left flank and left elbow. Although Dr. Loomis had surgery to repair his left elbow, his condition deteriorated until he was no longer able to perform surgery. He subsequently sold his practice.
Issue
Did the hospital know or should it have known about the dangerous condition of pantry floor where the slip-and-fall occurred, did the hospital failed to exercise reasonable care, and did water on floor cause the slip-and-fall?
Did Dr. Loomis share in the fault in the accident by failing to exercise due care for his own safety by not looking at the floor for possible dangers.
Rule
Evidence put forth by the plaintiff to defeat motion for judgment on the evidence in premises liability action need not be conclusive, only sufficient to create a reasonable inference that defendant knew of and should have remedied the dangerous condition. Rhodes v. Illinois Cent. Gulf R.R., 665 N.E.2d 1260
A customer has the duty to see and avoid obvious hazards. Lloyd v. TG & Y Stores Co., 556 So.2d 629, 635 (La.Ct.App.1990) This Court, however, in examining the evidence in these types of cases, took cognizance of the natural tendency of the shopper to focus on the displayed merchandise rather than down at the floor in front of him.
Analysis
Evidence had shown that, while no person testified to seeing water on the floor immediately before the accident, it was not uncommon for there to be water on the floor in that room. Additionally, it was found that, on differing occasions, employees had complained of slipping in water spilled on the floor.
Dr. Loomis was not negligent or careless in walking across the floor. He did not jump or run. He simply walked to the sink, turned and took another step and slipped.
Conclusion
The Court of Appeals held the Defendant 100% liable for the injuries sustained by Plaintiff and affirmed the judgment of the lower court.
Statutes
Ind. Code Ann. § 34-51-2 (West 2011)
Indiana’s Comparative Fault Act allows a jury to consider whether the Plaintiff bears some of the fault in an accident. If the jury finds the Plaintiff to be partially at fault, they must then decide what percentage of fault should go to each party. If the jury finds the Defendant and the Plaintiff to each be 50% at fault, they find in favor of the Plaintiff, but multiply the amount awarded by 50% (the amount the Defendant is at fault) and that is how much the Defendant must pay to the Plaintiff. If the Defendant is found only 49% at fault or less, the Plaintiff is awarded nothing.
Ind. Code Ann. § 34-11-2-4 (West 2011)
Sec. 4. states that “An action for: (1) injury to person or character, (2) injury to personal property; or (3) a forfeiture of penalty given by statute; must be commenced within two (2) years after the cause of action accrues.
Administrative Agencies
Occupation Safety & Health Administration (OSHA)
Mission Statement: “With the Occupational Safety and Health Act of 1970, Congress created the Occupational Safety and Health Administration (OSHA) to assure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance.” http://www.osha.gov/about.html
While OSHA specifically relates to workers and employers, the safety standards by which employers are bound would be nearly identical to the standards that any business must provide to their customers.
American National Standards Institute (ANSI)
Mission Statement: “To enhance both the global competitiveness of U.S. business and the U.S. quality of life by promoting and facilitating voluntary consensus standards and conformity assessment systems, and safeguarding their integrity.” http://www.ansi.org/
Products with the ANSI certification are deemed safe for consumer use as well as for the environment. Again, this has an indirect relationship with our case. We could check if the products used for the flooring, such as the wax, is ANSI certified.
Helpful Websites
HG.org Legal Directories has information about different types of “slip and fall” accidents. It provides definitions, settlement guides, information on property owner liability and likely injuries. http://www.hg.org/slip-and-fall.html
WebMD has a wealth of information on the symptoms, causes and treatment for a broken hip. http://www.webmd.com/a-to-z-guides/broken-leg
I started my research with secondary sources such as law journals, as well as articles on FindLaw.com to familiarize myself with terms. Using the information I gained from those, I was able to conduct a more productive search on Westlaw for relevant case law and statutes. Statutes were a bit more difficult to narrow down, as I am unfamiliar with Indiana law. However, a brief look at the table of contents helped quite a bit. To narrow down my internet search for relevant websites, I choose to search only websites ending in .org. This saved a lot of time and removed all the websites for individual law firms.
Patricia Oswalt
Law Offices of Dean Poirier, P.A.
123 Main Street
Any Town, USA 12345
Phone: (407) 555-6321
Fax: (407) 555-6754
Email: poswalt@lawoffices.com
March 8, 2012
Samantha Smith
987 Next Street
Any Town, USA 12345
Dear Ms. Smith:
You recently contacted our law firm to explore your legal options after a slip and fall at the Any Town Grocers on January 4, 2012. From our initial interview, we learned that on the previously referenced date, you were shopping with your 2 year old son when you slipped on some shampoo that had spilled onto the floor. This fall caused you serious injury, suffering a broken hip, and you were transported to the hospital and kept overnight. Your doctors advise this injury will require surgery and months a physical rehabilitation and cannot yet ascertain if you will suffer from permanent disability.
The store maintains they were unaware of the spill. Standard operating procedure states that an employee checks the aisles for anything on the floors at the top of the hour. However, the store log indicates that the last inspection prior to your fall was at 12:45, a full 45 minutes before you slipped and fell. Additionally, the employee in charge of the aisle inspection was an older gentleman with glasses and the shampoo on the floor was a clear gel. We would need to depose the employee to ascertain if he walked the full length of the aisle, inspecting the floor to both the left and the right, or if he simply stood at one end of the aisle and visually inspected from there.
For Any Town Grocers to be liable, it must have actual or constructive knowledge of the spill. Bearman v. University of Notre Dame, Ind. App., 453 N.E.2d 1196, 1198 (1983) We believe the store had constructive knowledge of the spill. This simply means that the spill had been there long enough that an employee should have discovered it and cleaned it up. Black's Law Dictionary (9th ed. 2009) Any Town Grocers has a duty to make sure their store is safe for you, your son and other customers. Their failure to do so is a breach of duty or “the failure to act as the law obligates one to act” Black's Law Dictionary (9th ed. 2009) Therefore Any Town Grocers is liable for your injuries.
Any Town Grocers is denying they are at fault for your injury, claiming you were too distracted by your son. They maintain that you should have seen the shampoo and avoided it. This brings up the issue of comparative fault. Indiana’s Comparative Fault Act allows a jury to consider
whether the Plaintiff bears some of the fault in an accident. If the jury finds the Plaintiff to be partially at fault, they must then decide what percentage of fault should go to each party. If the jury finds the Defendant and the Plaintiff each 50% at fault, they find in favor of the Plaintiff, but multiply the amount awarded by 50% (the amount the Defendant is at fault) and that is how much the Defendant must pay to the Plaintiff. If the Defendant is found only 49% at fault or less, the Plaintiff is awarded nothing. Ind. Code Ann. § 34-51-2 (West 2011) Obviously, we will deny that your son’s behavior was an issue.
Any Town Groceries will be relying on case law such as Lloyd v. TG & Y Stores Co., 556 So.2d 629, 635 (La.Ct.App.1990) in which it was held that “A customer has the duty to see and avoid obvious hazards.” However, we will argue that a clear gel shampoo on a shiny waxed floor is not an “obvious hazard.” Additionally, appellate courts have taken cognizance of the natural tendency of the shopper to focus on the displayed merchandise rather than down at the floor in front of them. St. Mary's Medical Center v. Loomis, 783 N.E.2d 274 (Ind. Ct. App. 2002).
For further information on common slip and fall accidents, visit HG.org Legal Directories website at http://www.hg.org/slip-and-fall.html. You can also find information regarding a broken hip on the WebMD website, specifically at http://www.webmd.com/a-to-z-guides/broken-leg.
We hope that we have answered your questions regarding this matter. If you have any further concerns or questions, please feel free to contact us at (407) 555-6321 or via email at poswalt@lawoffices.com. You can contact me directly to set an appointment to speak with the attorney, who can explain the steps in filing an action against Any Town Grocers. Please be aware that you only have 2 years from the date of the injury to file a lawsuit. After that, the statute of limitations will run and you will be legally unable to recover damages. We look forward to hearing from you soon.
Sincerely,
Patricia Oswalt
Paralegal for Attorney Dean Poirier
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