In a boost to businesses defending slip and fall cases, the Seventh Circuit Court of Appeals released a decision further solidifying the burden to be met by a plaintiff claiming liability on a business through constructive notice of an alleged dangerous condition.
In the recent decision of Reid v. Kohl's Dept. Store, Inc., No. 07-3916 (September 16, 2008), the plaintiff and a friend had been browsing the men's clothing department at Kohl's when plaintiff grew bored and started to make her way toward the women's pajama section. Stepping off of the carpeted floor and into the aisle, plaintiff slipped and fell, sustaining minor injuries. Immediately after her fall, plaintiff looked at the floor and saw near her a large cup, cup lid, and straw; a pink "milkshake" or "smoothie" had flowed from the cup and a pool of the substance had formed on the floor. The manager on duty arrived on scene and assisted plaintiff.
The manager testified that she, too, saw the substance on the floor. However, the manager also testified that the department store exercises a routine procedure through which store personnel continuously walk through the store to ensure that the store is clean and safe. The manager herself had followed this procedure less than ten minutes prior to the plaintiff's fall and did not see the spilled milkshake during that walk-through, nor did any store personnel or customer ever report the spill prior to plaintiff's fall.
The District Court for the Northern District of Illinois granted defendant's motion for summary judgment finding that the department store had no actual or constructive notice of the spill and that the spill was an open and obvious condition that the store owed no legal duty to protect against. Plaintiff appealed and the Seventh Circuit addressed the issue of constructive notice.
Plaintiff argued on appeal that she had presented ample evidence to support a finding that the department store had constructive notice of the spill. In Illinois, liability can be imposed when a business’ invitee, such as plaintiff, is injured by slipping on a foreign substance on its premises if the invitee establishes that the business had actual or constructive notice of the dangerous condition that caused the fall. Pavlik v. Wal-Mart Stores, Inc., 323 Ill. App. 3d 1060 (2001). Actual notice means that the business was informed directly of the condition, or that the business (by and through its employees) actually saw the condition. Constructive notice means that the business would have learned of the condition through the exercise of ordinary care. It is long established that a business owes its invitees a duty to maintain the premises in a reasonably safe condition to avoid injuring them.
When a plaintiff alleges that a business had constructive notice of a dangerous condition which caused her injury, "of critical importance is whether the substance that caused the accident was there a length of time so that in the exercise of ordinary care its presence should have been discovered." Torrez v. TGI Friday's Inc., 509 F.3d 808, 811 (7th Cir. 2007).
Discussing the material element of time in meeting plaintiff's burden to show constructive notice, the Reid court held that the evidence presented by plaintiff failed to indicate with any degree of certainty the amount of time the milkshake had been on the floor. The court considered the possibilities of the shake having been ordered extra thick, or extra thin, or the possibility that it was not a shake at all, but rather frozen yogurt or a fruit smoothie. Further, did the substance melt in the cup or on the floor? In the absence of any information beyond the color of the substance - plaintiff having presented no evidence as to its origin or composition, the court held that the record was devoid of any facts which could have given insight into the relevant time frame. The only affirmative statement provided relative to the issue of time was from the store manager, who maintained that the substance was not present on the floor for at most ten minutes prior to the plaintiff's fall. Therefore, the court recognized ten minutes as the outside limit of time.
The Seventh Circuit then stated that "no reasonable person" could conclude that ten minutes was enough time to give the store constructive notice of the spilled substance. The court also stated that the fact that there were few customers in the store at the time of plaintiff's fall lessened the likelihood of a dangerous condition, and that the duty to inspect the premises decreased. Taking each of these conditions as a whole, ten minutes was not enough time to give the store constructive notice of the spill.
While there is no "bright-line" rule as to the appropriate amount of time to establish constructive notice, the Seventh Circuit in Reid reiterated the line followed by Illinois courts: that the circumstances of the particular case must be looked at in order to determine if the length of time supported by the evidence gives rise to notice.
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Stacey Atkins, an associate in our Chicago office, concentrates her practice in municipal liability litigation. Stacey has extensive experience in motion practice, discovery practice, arbitrations and mediations and has tried five matters to verdict. She also has represented governmental employees in actions involving employment matters before the Police Board and civil rights matters in Federal Court. If you have any questions regarding this article, please contact Stacy via 312-540-7656, or satkins@querrey.com.
