Insurers should be aware the Washington Court of Appeals recently held, a supermarket does not have constructive notice of a dangerous condition without evidence of how long the condition persisted. Moreover, when claiming the self-service exception in a slip and fall claim, a plaintiff will not meet her burden of proof simply by providing evidence that the store stocked items which, if spilled, present slip and fall hazards.
Claims Pointer: When defending against slip and fall claims where the plaintiff claims the defendant should have had constructive notice of a dangerous condition, special attention should be paid as to whether the plaintiff provided any evidence as to the length of time the dangerous condition was on the premises. More often than not, the plaintiff is unable to do so. Moreover, the self-service exception, which is often times asserted to avoid the burden of proving notice of a dangerous condition, requires a plaintiff to prove a connection between the mode of self-service and the dangerous condition. A plaintiff alleging the self-service exception will not survive summary judgment if her only evidence is that the store kept lotions and creams which may have caused others to slip and fall.
Alvarez v. Walmart Stores, Inc., 179 Wash. App. 1026 (2014) (Unpublished).
Deanne Alvarez (“Alvarez”) was in a Walmart store, in the health and beauty section, when she slipped and fell on what she described as a “white, thick creamy-like substance,” which she thought was either a hair conditioner or lotion-like product. Both before and after her fall, Alvarez testified she did not see any other customers or store employees in the aisle. Following her fall, Alvarez took a seat in the pharmacy department and was approached by the store manager whom she told about her fall. During their conversation, the manager called for a clean-up of the aisle in which Alvarez fell, although from where she sat, Alvarez could not see the clean-up in progress.
Alvarez sued Walmart for her injuries, alleging negligence. Walmart moved for summary judgment, arguing it did not have actual or constructive notice of the alleged unsafe condition, it met its duty of reasonable care and that the self-service exception did not apply to the case. The trial court granted Walmart’s motion for summary judgment and Alvarez appealed arguing (1) a genuine issue of material fact existed as to whether Walmart had notice of the condition of the floor and (2) the self-service exception applied so that Alvarez did not have to prove Walmart had notice of the condition.
For purposes of the appeal, the parties agreed Alvarez was a business invitee. In order for Walmart to be liable to a business invitee for an unsafe condition on the land, it must have had actual or constructive notice of the condition unless an exception applied. Actual notice requires proof the condition was brought to the store’s attention, while constructive notice is measured by whether Walmart had a “sufficient opportunity, in the exercise of ordinary care, to have made a proper inspection of the premises and remove the danger.
The court held that Alvarez failed to provide testimony regarding how long the substance was on the floor or other evidence that would indicate Walmart had constructive notice of the substance on the floor. While both Alvarez and her daughter who was with her at the time testified they did not see any customers or employees in the aisle where she fell, this was not enough to create an issue of fact as to the length of time the condition had persisted.
The court then addressed the self-service exception under Pimentel v. Roundup Co., which provides, when the nature of the proprietor’s business and his methods of operation are such that the existence of unsafe conditions on the premises are reasonably foreseeable, a plaintiff does not need to prove either constructive or actual notice of a dangerous condition. In these cases, the defendant is deemed to be on notice that hazards will occur in the normal course of business, and a plaintiff can show negligence by demonstrating that the defendant failed to engage in “periodic inspections with the frequency required by the foreseeability of risk.” The court noted the self-service exception, in the context of stores, only applies to areas of the store where many goods are stocked and customers remove and replace items and the plaintiff has the burden of proving the exception applies to her case.
Applying the self-service exception to the case at hand, the court rejected Alvarez’s argument that by its very nature, the health and beauty aisle, applies because it contains more lotions and gels than any other part of the store. In doing so, it noted many other areas of the store conceivably contained just as many containers and liquids, but would not necessarily fall within the exception. Moreover, Alvarez failed to show a connection between the mode of operation and the alleged unsafe condition. The court similarly, found evidence that the store had two prior slip and falls, during a three year period, in the health and beauty aisle insufficient evidence her case fell within the self-service exception, where only one of the falls occurred as a result of a health and beauty product spill. In essence the court held the mere fact that Alvarez fell on lotion like substance did not address how the mode of the store’s operation made the spill reasonably foreseeable, thereby creating no genuine issue of material fact.
Note: This opinion has not been published. It is provided to demonstrate how the court approaches the issues involved in the case. It cannot be cited as authority to a court of law.
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