Day on Torts
After slipping and falling in a retail store, plaintiff had evidence that the store was aware of the spill with enough time to address or warn about it. Summary judgment for the store was therefore reversed.
In Alcantar v. Dolgencorp, LLC, No. M2023-01143-COA-R3-CV (Tenn. Ct. App. Sept. 6, 2023), plaintiff slipped on liquid while shopping at defendant Dollar General store. Immediately after the fall, an employee came to check on plaintiff and told plaintiff that there was a large milk spill in the next aisle. Plaintiff took photos showing liquid in the aisle where he fell, as well as liquid in the next aisle accompanied by a mop and bucket. The photo of the next aisle also showed an employee cleaning the spill along with a warning sign.
Plaintiff filed a premises liability claim against the store. During depositions, the store manager stated that the standard procedure for a spill was to put up warning signs and to use gray towels to soak up any liquid. During plaintiff’s deposition, he admitted that he did not know how long the liquid had been in the floor. He testified that no gray towels were in use in the clean up on the next aisle. Instead, the employee was using a mop or squeegee and appeared to be spreading the liquid into the aisle where plaintiff fell.
Defendant moved for summary judgment based on a lack of notice. Defendant relied on the fact that plaintiff could not show how long the liquid had been in the floor prior to his fall. The trial court found that plaintiff had established notice, but granted summary judgment to defendant. The trial court ruled that plaintiff could not “prove that the dangerous condition had been on the floor for an unreasonable length of time, such that Dollar General owed [plaintiff] a duty of care.” On appeal, summary judgment was reversed.
A premises liability plaintiff must prove the elements of negligence and that either the dangerous condition was created by the defendant or that the defendant had actual or constructive notice. When a plaintiff relies on constructive notice, he must provide “material evidence from which the trier of fact could conclude the condition existed for sufficient time and under such circumstances that one exercising reasonable care and diligence would have discovered the danger.” (internal citation omitted).
Here, both the trial court and defendant asserted that plaintiff needed some proof regarding the time the liquid had been in the floor. The trial court “view[ed] this evidentiary deficiency as a failure to establish duty,” while the defendant viewed it “as a failure to establish notice,” as defendant asserted that “notice must occur sufficiently in advance of a slip and fall that its employees can take reasonable steps to remove the danger or warn of its existence.”
The Court of Appeals found, however, that summary judgment was not appropriate here under either the trial court or defendant’s approach. The Court wrote that plaintiff presented sufficient evidence to show that defendant “was aware of the spill sufficiently before his slip and fall such that the employee could have taken steps to remove the danger or at a minimum warn of its existence.” Plaintiff showed that an employee had already retrieved a mop and bucket and was cleaning the next aisle. Further, a warning sign had already been placed in the next aisle. Plaintiff presented evidence that the employee had been mopping for some time, as there was testimony about the amount of water, trail of water, and saturated shoes. Further, plaintiff testified that the mitigation efforts were actually making the problem worse.
When viewed in the light most favorable to plaintiff, the Court found that “the evidence establishes that there was time to warn or address the dangerous condition but that the premises owner did so ineffectually.” Even if defendant were correct that notice must occur sufficiently before the fall, then, plaintiff had presented proof to avoid summary judgment in this case.
Summary judgment for defendant store was accordingly reversed.
The Court of Appeals correctly decided this case. Plaintiff had ample proof that the store had been on notice of the spill for a sufficient amount of time, and plaintiff’s inability to state exactly how long the spill had existed should not have resulted in summary judgment.
The Court of Appeals released this opinion seven months after oral arguments.