Employee’s Negligence Trumps Owner of Premise’s Knowledge of Dangerous Condition Creating Triable Issues of Fact


In premise liability cases, a tried and true defense to a customer’s slip and fall action was to argue that the spillage or other dangerous condition happened before the business knew about the spill or other condition that caused or contributed to the customer’s injury.

Recently, a California appellate reversed summary judgment in favor of a defendant jewelry store when the plaintiff established an inference that the business owner or its employees may have caused cleaning fluid to have been spilled on a backroom floor that was only accessible to plaintiff to the defendant store owner’s employees. The appellate court found that when the employee can show sufficient facts to create a reasonable inference that the store owner or the store’s employees caused the dangerous condition, notice of the condition is presumed, thereby preventing summary judgment.

The appellate court admitted that the facts were unusual in that the typical case, the customer has no idea who caused the spill and cannot prove that it is more reasonable to believe the store’s employees, as opposed to another customer, caused the dangerous condition.

Why the case certainly does not mark the end of the defense of lack of notice, it does make defending premises liability claims more difficult where the plaintiff can show either that the store or a store employee caused the dangerous condition or can at least show that a reasonable inference could be drawn that a store employee, as opposed to a third party, caused the dangerous condition.

And just because summary judgment was defeated does not necessarily mean that the trier of fact will find for the plaintiff. If the store is able to show at trial that more than just store employees had access to area the where plaintiff and had access to the cleaning fluid plaintiff slipped on, the store owner may still be able to defense the claim on the merits.

But the case does serve as a reminder of the importance of a thorough fact investigation into the accident. The more people that had access to the area where the fluid was or who could have spilled the fluid, the less likely a court would find a “reasonable” inference existed that a store employee caused the dangerous condition. And, in cases where it is clear that the employee caused the spill that the customer slipped on, the claim will likely be decided on agency or “respondeat superior” rather than on notice. There, the issue will be how reasonable and how quick the store’s response was to clean up the spill and whether there were adequate warnings, as these defenses will decide the case over a claim that the store lacked sufficient notice of the dangerous condition. In sum, employees can be more dangerous than you think to the defense of slip and fall claims.

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