Day on Torts
Where the evidence suggested that a small amount of clear liquid had been on the floor of a grocery store for just a short time, summary judgment for defendant in a Tennessee premises liability case was affirmed.
In Jones v. Publix Supermarket, Inc., No. M2018-01672-COA-R3-CV (Tenn. Ct. App. June 7, 2019), plaintiff was shopping in defendant grocery store. As she rounded the corner towards the seafood department, she slipped on clear liquid. She got up quickly and did not seek assistance, and she refused to fill out an incident report on the day of the accident, but she returned the next day to complete one. She subsequently filed this premises liability action. The trial court granted summary judgment for defendant, finding that plaintiff failed to prove actual or constructive notice of the allegedly dangerous condition, and the Court of Appeals affirmed.
The incident was captured by store cameras, which showed that about two minutes before plaintiff fell, a toddler was in a shopping cart in the same area and was playing with and drinking from a sippy cup. The toddler dropped the sippy cup into the wire cart two times, and defendant argued that this was the likely source of the liquid. In the two minutes between the toddler leaving the area and the plaintiff falling, the video showed several customers walking through the area with no problems, and no store employees coming nearby. During discovery, the store employee who was working in the seafood department that day stated that he was helping a customer at the counter at the time of the incident, but that he heard something happen. He went to the location of plaintiff’s fall around two minutes later, saw “a little bit of water…not a puddle” on the floor, and waited there until another employee brought paper towels to clean the liquid. He testified that prior to the fall, he had seen no liquid in the area.
A plaintiff pursuing a premises liability claim must show the elements of negligence and that the defendant had actual or constructive notice of the allegedly dangerous condition. Here, plaintiff presented no proof of actual notice, and thus was relying on her ability to prove constructive notice. “To establish constructive notice, the plaintiff must show proof that the dangerous or defective condition existed for such a length of time that the defendant, in the exercise of reasonable care, should have become aware of the condition.” (internal citation and quotation omitted).
Plaintiff argued that her case was similar to a case where a plaintiff slipped on floor wax near the time a store was set to close. (Benson v. H.G. Hill Stores, Inc., 699 S.W.2d 560 Tenn. Ct. App. 1985). In that case, the court held that because there were very few customers around and employees regularly applied wax at closing time, a jury could infer that the condition was created by an employee, or that if a customer had spilled the wax, one of two employees nearby should have seen the wax on the floor. In the instant case, plaintiff argued that a jury here could likewise “reasonably infer…that the oily substance that caused [plaintiff] to slip and fall was either spilled by an employee or by a customer,” and that the presence of a worker at the seafood counter just ten feet away established constructive notice. The Court, though, found the Benson case factually distinguishable, noting that in this case “we do not know the nature of the substance on the floor,” that in the present case there were many customers present in the store and it was a busy shopping time, and that the employee nearby in this case was helping another customer, whereas the nearby employees in the Benson case were not busy.
Based on the evidence presented, the Court of Appeals affirmed summary judgment for defendant. The Court found that plaintiff did not show that the substance had been on the floor long enough to establish constructive notice. It agreed “with the trial court that the only evidence suggests that a small amount of clear liquid was on the floor, and apparently only for a short period of time before [plaintiff] fell.”
As we’ve seen many times, slip and fall cases in a retail store can be difficult to prove. Here, the video evidence cut against plaintiff and she could not show notice and move past the summary judgment stage.
One last point on this type of case. An increasing number of retailers refuse to provide video evidence of falls to potential plaintiffs and their lawyers, even if the video would exonerate the store. It irritates me that retailers complain about the cost of litigation and “frivolous lawsuits” when they refuse to provide essential information that any reasonable person would want to consider before filing suit. Thus, some retailers bring lawsuits on themselves because their refusal to provide information (the video) pre-suit deprives the claimant of essential information.
Don’t get me wrong: retailers who refuse to provide videos pre-suit are not violating any law. They have no duty to have video surveillance in their stores. And they have no legal duty to provide it to claimants before a lawsuit is filed. But if they refuse to do so, they lose the right to complain about lawsuits being filed against them arising out of such matters.