Developments in Defending a Slip and Fall Case

November 2004

In recent years there have been developments in the law in the defense of a slip and fall case. Of note is the case of Ortega v. Kmart Corp (2001) 26 Cal. 4th 1200. In that case the plaintiff was shopping at a Kmart Store when he slipped on a puddle of milk on the floor, and may experience long term disability due to the injuries sustained. At trial plaintiff could not present evidence as to how long the milk had been on the floor. His evidence was that Kmart had not inspected the premises within a reasonable period of time prior to the accident.

There was evidence that Kmart kept no written inspection records, but that employees are trained to look for and clean up any spills or other hazards. The jury returned a verdict in defendant’s favor. The Court of Appeal concluded that the plaintiff could be relieved of his burden of showing how long the milk remained on the floor if he demonstrated the site had not been inspected within a reasonable period of time.

In Girvetz v. Boys’ Market (1949) 91 Cal.App.2d 827, the court found that the owner owes a patron a duty to exercise reasonable care in keeping the premises reasonably safe. In Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, it was determined that a store owner exercises reasonable care by making reasonable inspections.

The plaintiff has the burden of proof to establish negligence of a store owner by showing that the store owner had actual or constructive notice of the dangerous condition. Constructive notice is established by showing that the dangerous condition was present for a sufficient period of time that the store owner could have discovered its existence and remedied the condition with reasonable inspections of the premises. That is a question of fact for the jury. If you’re in Albuquerque, NM, and you need help with a slip and fall accident, you may wish to speak with New Mexico Slip and Fall Lawyers who could assist you in the matter.

Based on the ruling in Ortega, a plaintiff may prove a dangerous condition existed for an unreasonable time with circumstantial evidence. Evidence that an inspection had not been made within a particular period of time prior to an accident may warrant an inference that the defective condition existed long enough so that a person exercising reasonable care would have discovered it.

If a plaintiff raises an inference that an inspection was not made within a particular period of time, the burden is on defendant to show that an inspection was made. The best way to do that is to keep written inspection records. It is still a question of fact for the jury as to how long between inspections is reasonable. However, without written records, plaintiff may demonstrate that no inspection took place within a reasonable period of time.

In September 2003 the civil jury instructions (CACI No. 1011) were revised to state as follows:

“In determining whether defendant knew or should have known of the condition that created the risk of harm, you must decide whether, under all the circumstances, the condition was of such a nature and existed long enough so that it would have been discovered and corrected by an owner using reasonable care. If an inspection was not made within a reasonable time before the accident, this may show that the condition existed long enough so that a store owner using reasonable care would have discovered it.”

In defending a slip and fall case, you must have evidence that an inspection was made within a reasonable period of time. The best evidence is a written inspection record setting forth the times inspections were made. In the industry, the term typically used is “sweep sheets”. This is a factor to consider when filing a case, and why Santa Clarita slip & fall attorneys can help pay for medical bills due to others negligence by finding this information and presenting it. Without evidence of this, the defendant may not meet its burden that reasonable inspections were made.

Please Note: This article is necessarily general in nature and is not a substitute for legal advice with respect to any particular case. Readers should consult with an attorney before taking any action affecting their interests.