Store Owner's Failure To Inspect Within Reasonable Period Warrants Inference That Defect Existed Long Enough To Establish Liability

In Ortega v. Kmart Corp. (2001) __ C.4th __, __ C.R.2d __, __ P.2d __, 01 C.D.O.S. 10516, 01 Daily Journal D.A.R. 13099, 2001 WL 1630954 , plaintiff, while shopping in defendant grocery store, slipped on a puddle of milk and suffered substantial knee injuries. He then sued defendant and obtained a verdict for $47,000, even though he was unable to present any evidence showing how long the milk had been on the floor. Held, affirmed.

(a) Under Girvetz v. Boys' Market (1949) 91 C.A.2d 827, 206 P.2d 6, 6 Summary (9th), Torts, §928, a store is not an insurer of the safety of its patrons. However, the owner does owe them the duty to exercise ordinary care in keeping the premises reasonably safe, and can fulfill this duty by making reasonable inspections of the area of the store open to customers. To establish liability, the plaintiff must prove that the owner had actual or constructive knowledge of the alleged defect in sufficient time to have corrected it. Hence, the basic question is: "If the plaintiff has no evidence of the source of the dangerous condition or the length of time it existed, may the plaintiff rely solely on the owner’s failure to inspect the premises within a reasonable period of time in order to establish an inference that the defective condition existed long enough for a reasonable person exercising ordinary care to have discovered it?" (01 C.D.O.S. 10516, 01 Daily Journal D.A.R. 13099.)

(b) Plaintiff need not show actual knowledge where the evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence. And whether the dangerous condition existed for the requisite amount of time can be established by circumstantial evidence. Although numerous cases considered an owner's inspection practice as one of several factors in determining the length of time a condition existed prior to an accident, none of them held that this failure alone can satisfy the plaintiff's burden to prove constructive knowledge. However, Sapp v. W.T. Grant Co. (1959) 172 C.A.2d 89, 341 P.2d 826, and Bridgman v. Safeway Stores (1960) 53 C.2d 443, 2 C.R. 146, 348 P.2d 696, 6 Summary (9th), Torts, §926, support this proposition. (01 C.D.O.S. 10517, 01 Daily Journal D.A.R. 13100.)

(c) "We conclude that a plaintiff may prove a dangerous condition existed for an unreasonable time with circumstantial evidence, and that, as Bridgman observed, 'evidence that an inspection has not been made within a particular period of time prior to an accident may warrant an inference that the defective condition existed long enough so that a person exercising reasonable care would have discovered it.'" (01 C.D.O.S. 10518, 01 Daily Journal D.A.R. 13101.) Whether, under all of the circumstances, the defective condition existed long enough so that it would have been discovered and remedied by an owner exercising reasonable care is then a question of fact. The burden of proof remains on the plaintiff. (01 C.D.O.S. 10519, 01 Daily Journal D.A.R. 13102.)

(d) Here, defendant's manager testified that the store kept no written inspection records, that all of defendant's employees were trained to look for spills, and that every 15 to 30 minutes an employee usually walked the aisle where plaintiff slipped, but that the milk could have been on the floor for as long as 2 hours. (01 C.D.O.S. 10516, 01 Daily Journal D.A.R. 13099.) This evidence was sufficient to justify a reasonable inference that the dangerous condition existed long enough for it to have been discovered by defendant. (01 C.D.O.S. 10518, 01 Daily Journal D.A.R. 13101.)

(e) Allowing an inference of constructive knowledge from a failure to inspect a reasonable time prior to the accident does not change the rule that if the owner has taken care in the discharge of its duty, by inspecting its premises in a reasonable manner, then no breach of duty will be found, even if a plaintiff does suffer injury. (01 C.D.O.S. 10518, 01 Daily Journal D.A.R. 13102.)

Witkin References

On premises liability generally, see 6 Summary (9th), Torts, §891 et seq.

On liability to business visitors, see 6 Summary (9th), Torts, §918 et seq.

On landowner's knowledge of dangerous condition, see 6 Summary (9th), Torts, §925

On effect of failure to inspect, see 6 Summary (9th), Torts, §926

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Friday, January 04, 2002