Day on Torts
Where a plaintiff who slipped and fell in water at a concert could not show how long that particular spill had been on the floor, and could only show that two other spills had occurred in the same area as her fall, summary judgment was affirmed based on lack of constructive notice.
In Katz v. The Sports Authority of the Metropolitan Government of Nashville and Davidson County, TN, No. M2016-01874-COA-R3-CV (Tenn. Ct. App. Aug. 29, 2017), plaintiff was attending a concert at Bridgestone Arena when she slipped on fell in a puddle on the floor. Her fall occurred between sections 115 and 116 of the 100 level concourse. “[J]ust before she fell, she noticed three people standing nearby, one of whom was carrying a small broom and dustpan.”
Plaintiff filed a premises liability suit, and defendant moved for summary judgment. In response to defendant’s motion, plaintiff “pointed to evidence that: (1) three of Defendant’s employees were standing nearby at the time that she fell; (2) employees were instructed not to clean up until after the concert was over; and (3) at least one other slip-and-fall incident occurred in the same general area about an hour and twenty minutes before [plaintiff’s] fall.” The trial court granted the motion for summary judgment, and the Court of Appeals affirmed.
An owner of a property has a duty “to remove or warn against hidden dangers and defective conditions of which the owner is aware or should have been aware through the exercise of reasonable diligence.” (internal citation omitted). A plaintiff in a premises liability case must prove either actual or constructive notice, and since plaintiff was not asserting actual notice here, the issue was “whether the evidence presented in favor of and in opposition to the motion for summary judgment established a genuine issue of material fact on the question of constructive notice.” When attempting to prove constructive notice, a plaintiff may succeed by “(1) proving that a dangerous condition existed for such a length of time that a reasonably prudent property owner should have been aware of the dangerous condition’s existence or (2) proving that the dangerous condition resulted from a pattern of conduct, a recurring incident, or a general or continuing condition.” (internal citation and quotation omitted).
In analyzing the evidence offered by plaintiff, the Court first pointed out that she had offered nothing to show “how long the spill had been on the concourse floor before” the fall. Plaintiff’s argument, instead, was that an event log from the night in question “show[ed] constructive notice of a dangerous condition existing at the arena on the day of the concert.” Plaintiff asserted that “numerous wet spill incidents and at least two other slip and falls at the arena that day constituted a pattern of conduct, a recurring incident, or a general or continuing condition.” When looking at this type of constructive notice, “an element of the inquiry appears to be the proximity between where the dangerous condition occurred previously and where the plaintiff suffered his or her injury.” (internal citation omitted).
The event log showed that there were 33 spills in the arena before plaintiff’s fall, nine of which occurred on the same concourse level as her fall. Two of these spills were “near the area where she fell,” with one in 114/115 and one in 116/117. Additionally, two slip and falls were reported on the 100 concourse, with one being just a few sections over from her fall about one hour and twenty minutes earlier. The Court of Appeals, though, held that these “two seemingly random spills near the area where [plaintiff] fell” did not occur with “such regularity that they constitute a pattern of conduct, a recurring incident, or a general or continuing condition.” The Court ruled that plaintiff had “presented no evidence that the wet spills in the area where she fell occurred with such regularity that the dangerous condition was reasonably foreseeable to Defendants,” and summary judgment was affirmed.
Judge Clement wrote a dissent in this case, as he believed that there was a “genuine issue of material fact as to whether Defendants had constructive notice of the dangerous condition.” Judge Clement pointed out that, in a footnote, the majority assessed Plaintiff’s evidence regarding the three people standing near the spill as follows:
[Plaintiff] presumes that the three were employees of…SMS, the firm hired by [one defendant] to clean the arena. According to an affidavit…, a former SMS employee started her shift at 10:00 p.m. on September 4, 2012, with instructions ‘not to clean up until after the concert was over.’ Based on this affidavit, [plaintiff] further presumes that the three people she saw were not doing their job because Defendants instructed them not to clean up.
(quoting from majority opinion). Regarding this part of the majority opinion, Judge Clement wrote:
I respectfully disagree with the majority’s finding that Plaintiff’s evidence is based on presumptions that cannot be considered as evidence. Instead…, I submit we are required to consider the evidence if the evidence constitutes reasonable inferences to be drawn from other facts Plaintiff has identified. Thus, instead of viewing this evidence as presumptions by Plaintiff, which may not be considered at the summary judgment stage, I submit that we are not only entitled to draw reasonable inferences from these facts, but that we are required to draw reasonable inferences from them at the summary judgment stage.
Judge Clement pointed out the significance of the affidavit from the employee who stated that they were instructed not to clean up until after the event. He wrote that “[t]he troubling aspect of this undisputed fact and, more importantly, the reasonable inference to be drawn from this fact is that if [an employee] of defendants had notice of the spill, the policy was not to clean it up (not to remove the hazard) until after the concert was over.” Judge Clement believed that the fact that employees were standing near the spill, along with the evidence regarding instructions not to clean up during the event, “created a dispute of fact concerning whether Defendants had constructive notice of the spill prior to Plaintiff’s fall.”
In this case, the dissent seems to have taken the better approach. Plaintiff presented evidence that there were employees near the spill, and that at least some employees had been instructed not to clean up any spills until after the concert. That should have been enough to get her past summary judgment. Under the majority’s approach, it appears that only evidence regarding a prior spill in that exact spot or proving how long the spill had been there would have defeated defendant’s motion.