Woodland Hills personal injury attorney Barry P. Goldberg probably receives a potential new client call regarding a slip and fall at least once per week. The potential new client is often embarrassed, outraged and sore! However, the call begins the process of educating the caller about the difficulties of proving and winning a slip and fall case. While it seems that there are a lot of supermarket slips and falls, actually proving a case and get paid is hard! The way the law has developed hands the supermarket many viable defenses.

The Duty of a Reasonable Store Owner.

Many potential new clients start with the incorrect assumption that because the accident occurred on the store premises, that store must be liable. To complicate things, usually there is a distinct cause of the slip like liquid or produce on the floor. This adds to the customer’s belief system that the store ought to be responsible.

It is well established that a store owner is not the insurer of its patrons’ personal safety but does have a duty to exercise reasonable care to keep the premises reasonably safe for patrons. (See Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205 (Ortega).) This includes a duty to keep the floors safe for patrons’ use. (Tuttle v. Crawford (1936) 8 Cal.2d 126, 130.) To establish an owner’s liability for negligence, the plaintiff must prove duty, breach, causation, and damages. (Ortega, at p. 1205.)

The issues presented in most supermarket slip and fall accidents are: (1) whether a greasy or oily substance was on the floor where the customer slipped and fell; and (2) whether supermarket’s sweep inspections of the area were adequate and conducted within a reasonable time before the fall.

The Presence of a Dangerous Condition on the Floor.

When a customer slips and is injured, the last thing they think about is 1) what exactly did they slip on; and 2) documenting the material that caused the slip. Some customers are lured into relying on the supermarket employees to photograph and confirm the presence of the slippery substance. However, the supermarket employees are trained to clean up the substance immediately. Further, it is rare that the slippery substance is documented in anyway shape or form by the employees.

This is where it gets tricky. To meet its burden of proof, a “‘plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.’” (Ortega, supra, 26 Cal.4th at pp. 1205–1206.)

Without some firm evidence of the existence of some substance, what it was, how it got there, a slip and fall plaintiff will face a summary judgment and the case will be defeated. Many times, plaintiff attorney try to “get around” the proof requirement by obtaining a declaration from an expert safety engineer. Typically, the declaration attempts to establish there was a slippery substance on the floor, in which the expert opines that the manner in which the customer fell is consistent with a slip created by a foreign substance. Mere conjecture, however, is “legally insufficient to defeat summary judgment.” (Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 734.) The mere possibility that there was a slippery substance on the floor does not establish causation. Absent any direct evidence that there was a foreign substance on the floor, or some other dangerous condition created by or known to the supermarket, the plaintiff cannot sustain a burden of proof as a matter of law.

The Adequacy and Timing of Inspections.

Assuming that there is adequate proof of a slippery substance to get to a jury, a deserving plaintiff is still fighting an uphill battle. The supermarket will turn to its “sweep sheets” and say that it did everything a reasonable store should do to prevent slips by having an employee inspect and sweep the market on regular intervals. So, if a customer drops a slippery substance, the supermarket takes reasonable steps to prevent slips by its procedures. It is not reasonable that every drip or drop is instantaneously eliminated.

Evidence of a store owner’s “failure to inspect the premises within a reasonable period of time prior to the accident is indicative of defendant’s negligence and creates a reasonable inference that the dangerous condition existed long enough for it to be discovered by the owner.” (Ortega, supra, 26 Cal.4th at p. 1211.) A store 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.” (Id. at p. 1207.)

Sometimes the “sweep sheet” defense can be defeated by witness testimony that the inspection or sweep never took place. More and more often, video is available to assist a plaintiff. Usually, the video is of such a low resolution that it will not show the foreign substance or liquid. However, the video may conclusively demonstrate that an inspection or sweep never took place. This also can create “aggravated” evidence if it conflicts with the “sweep sheet.” Now, the supermarket looks like it is lying and trying to get away with a defense that is improper.

What can a Slip and Fall Victim Do?

Armed with the “real law” and not the incorrect assumption that the store must be liable, there are several reasonable steps that can be taken to preserve a slip and fall claim. When a fall occurs, it is imperative to gather your thoughts, pull out a cell phone camera and take a few pictures of the exact area where you fell and to the bottom of your shoe and clothing. Request that the area not be cleaned until you can photograph it.

Ask for witnesses nearby to give you their contact information and verify that they saw the slippery substance. Ask the supermarket to make an injury report. Never sign the report unless you read it first. Often, a store employee will check off a box that says “customer does not know why he or she fell.” Ask for a copy of the report. As soon as you are able, you or your attorney should send a certified letter to the store risk management department requesting that the videos from that day be preserved for evidence.

As you can see, these cases are hard! It is important to meet with an experienced plaintiff’s attorney as soon as you are able in order to increase the chances of a successful result.

About the author

Barry Goldberg