Day on Torts
In Willis v. McDonald’s Restaurants of Tennessee, Inc., No. E2015-00615-COA-R3-CV (Tenn. Ct. App. Dec. 23, 2015), plaintiff’s inability to prove the cause of her fall proved fatal to her premises liability action. Plaintiff and her husband entered a McDonald’s restaurant that they had been to several times. Husband sat at a table while plaintiff went to the counter to order. After ordering, she walked to the drink station and prepared two large drinks, then walked past the service counter toward her husband, at which time she slipped and fell, spilling the liquid and ice from the drinks she was holding on the floor.
Plaintiff claimed that a “sharp object” and/or “hard object” caused her fall, as she said she felt it through her shoe immediately before slipping. She believed it was a piece of ice, but had no proof of that assertion. No such object was identified before the fall, and after the fall plaintiff’s own ice was covering the area. The restaurant in question had tile flooring, and there was a non-skid surface in front of the service counter. At the time of plaintiff’s fall, there was a French fry on one corner of the non-skid surface, which plaintiff stepped over shortly before falling. Plaintiff also pointed out that an employee found a straw wrapper on the floor soon after her fall, and that employees allegedly tracked grease from the kitchen to the service area of the restaurant. A security camera captured plaintiff’s fall and showed that on the day of the incident, “placards were placed throughout the restaurant…to alert patrons of possible slippery conditions.”
Defendant moved for summary judgment, asserting that “plaintiffs could not identify the cause of her fall and that she could not establish that Defendant created the dangerous condition that caused the fall or that Defendant had any knowledge, either actual or constructive, of the dangerous condition prior to the fall.” The trial court granted summary judgment, which the Court of Appeals affirmed.
In its analysis, the Court noted that plaintiff pointed out many potentially dangerous conditions—“the absence of a mat at the drink station, the transition from a non-skid surface to tile, the French fry on the rug…, and the negligent behavior of employees who traversed the area with greasy shoes and mops.” In this case, however, plaintiff had admitted that none of those conditions caused her fall. Instead, she specifically testified that a “hard object” was the problem here, and that “hard object” had not been and could not be identified. According to the Court, “[t]he ‘fatal flaw’ in this action is that Plaintiffs cannot identify the hard object that actually caused the fall; therefore, they cannot establish that Defendant caused the dangerous condition or that Defendant had actual or constructive notice that the condition existed long enough to be discovered by proper diligence.” The Court found that while “Defendant may be responsible for a myriad of dangerous conditions throughout the restaurant[,] Plaintiff simply cannot establish that any of these conditions caused her fall without identifying the object responsible.” Accordingly, summary judgment was affirmed, as plaintiff could not establish the element of causation.
This is a case where plaintiff’s testimony simply did not match her evidence. In a premises liability action, plaintiff must be able to prove causation and that the dangerous condition was created by the defendant or that defendant had knowledge (actual or constructive) of the condition. Where plaintiff has evidence regarding one or more dangerous conditions, yet testifies that something different for which she has no evidence caused her fall, this is a likely result.