Ortega v. Kmart Corp.

OPINION BY: CHIN

[. . .] The question here 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? We conclude that evidence of the owner's failure to inspect the premises within a reasonable period of time is sufficient to allow an inference that the condition was on the floor long enough to give the owner the opportunity to discover and remedy it. [. . .]

BACKGROUND

Richard M. Ortega (plaintiff) was shopping at the Torrance Kmart store (Kmart) when he slipped on a puddle of milk on the floor adjacent to the refrigerator and suffered significant injuries to his knee, including ligament tears. Less than a year later, plaintiff sued Kmart for personal injuries. At trial, plaintiff testified he did not notice whether the puddled milk was fresh or odorous, warm or cold. He could not present evidence showing how long the milk had been on the floor. Nonetheless, plaintiff claimed that because the evidence showed Kmart had not inspected the premises in a reasonable period of time prior to the accident, a jury could infer the puddle was on the floor long enough for Kmart employees to have discovered and remedied it.

Plaintiff's maintenance expert conceded he found no direct evidence indicating how long the puddle had been on the floor before plaintiff's fall. He did opine that stores like Kmart should implement three basic management tools relevant to floor maintenance: (1) accountability (the name of the person who performs the inspections should be identified); (2) frequency (management should know how often the floor is inspected); and (3) verification (a written record or some other form of verification should be presented to management).

Kmart's former store manager testified that although the store keeps no written inspection records, all Kmart employees are trained to look for and clean up any spills or other hazards. He also stated that several employees work in the pantry aisles next to the milk refrigerator, and that every 15 to 30 minutes an employee usually walked the aisle where plaintiff slipped. When asked whether the milk could have been on the floor for five minutes or two hours, the manager testified that in light of the staffing, it would be "hard for something [to] be on the floor for more than 15 or 30 minutes." He did admit, however, that the milk could have been on the floor for as long as two hours. On the day of the accident, the manager testified that management would not have had any idea if the aisle where the accident occurred was inspected at any time during that day. Kmart claimed that plaintiff failed to carry his burden of showing the milk puddle existed for a sufficient time to establish constructive notice to the store. [. . .]

The jury returned a verdict in plaintiff's favor, and awarded him $ 47,200 in damages. Kmart appealed.

The Court of Appeal affirmed the judgment. In so doing, it "looked at a plethora of similar cases" and concluded that plaintiff could be relieved of his burden of showing how long the milk remained on the floor if he demonstrated the site had not been inspected within a reasonable period of time.

DISCUSSION

[. . .]

It is well established in California that although a store owner is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe. [. . .]

A store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved. [. . .] If the owner operates a self-service grocery store, where customers are invited to inspect, remove, and replace goods on shelves, "the exercise of ordinary care may require the owner to take greater precautions and make more frequent inspections than would otherwise be needed to safeguard against the possibility that such a customer may create a dangerous condition by disarranging the merchandise" and creating potentially hazardous conditions. [. . .] "However, the basic principle to be followed in all these situations is that the owner must use the care required of a reasonably prudent [person] acting under the same circumstances." [. . .]

Courts have also held that where the plaintiff relies on the failure to correct a dangerous condition to prove the owner's negligence, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it. [. . .] The courts' reasoning is that if the burden of proving lack of notice were placed on the owner in a slip-and-fall case, where the source of the dangerous condition or the length of time it existed cannot be shown, failure to meet the burden would require a finding of liability, effectively rendering the owner an insurer of the safety of those who enter the premises. [. . .] Several courts believe that shifting the burden to the defendant would, contrary to existing negligence law, permit an inference of negligence to be drawn against the owner based solely on the fact that the fall or accident occurred. [. . .]

The plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence. Knowledge may be shown by circumstantial evidence "which is nothing more than one or more inferences which may be said to arise reasonably from a series of proven facts." [. . .] Whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury, and the cases do not impose exact time limitations. Each accident must be viewed in light of its own unique circumstances. [. . .] The owner must inspect the premises or take other proper action to ascertain their condition, and if, by the exercise of reasonable care, the owner would have discovered the condition, he is liable for failing to correct it. [. . .] In this case, we consider how a plaintiff may establish a defendant's constructive knowledge.

[. . .]

Kmart contends that in relying on a failure to conduct a reasonable inspection to relieve the plaintiff of the burden of proving how long the dangerous condition or substance existed, we inevitably allow the imposition of liability without proof of causation. [. . .]

We emphasize that allowing the inference does not change the rule that if a store owner has taken care in the discharge of its duty, by inspecting its premises in a reasonable manner, then no breach will be found even if a plaintiff does suffer injury.

[. . .]

As discussed below, Kmart relies on some sister state decisions that it claims support a contrary conclusion. We have reviewed those decisions and find only a few supportive of Kmart's position that failure reasonably to inspect the premises may not give rise to an inference that the defendant failed to exercise reasonable care in maintaining the premises. [. . .]

CONCLUSION

We conclude that plaintiffs still have the burden of producing evidence that the dangerous condition existed for at least a sufficient time to support a finding that the defendant had constructive notice of the hazardous condition. [. . .] We also conclude, however, that plaintiffs may demonstrate the storekeeper had constructive notice of the dangerous condition if they can show that the site had not been inspected within a reasonable period of time so that a person exercising due care would have discovered and corrected the hazard. [. . .] In other words, if the plaintiffs can show an inspection was not made within a particular period of time prior to an accident, they may raise an inference the condition did exist long enough for the owner to have discovered it. [. . .] It remains a question of fact for the jury whether, under all the circumstances, the defective condition existed long enough so that it would have been discovered and remedied by an owner in the exercise of reasonable care.

For the above reasons, we affirm the Court of Appeal's judgment.

[. . .]