The Law

Beverages Permitted by Michael Blahy Does the practice of permitting customers to carry beverages without restriction throughout your store constitute a continued and foreseeable dangerous condition, requiring a warning? On June 30, 2015, Michael Johnson (Johnson) was at Wal-Mart Store 2508 in Boise Idaho. While walking by a display of trash cans in the housewares department Johnson slipped and fell. Johnson sued Wal-Mart, for “negligence and premises liability for failure to warn and for failure to keep the store in a safe condition”. In Idaho, “negligence” consists of: “a duty, recognized by law, requiring the defendant to conform to a certain standard of conduct” “a breach of that duty” “a causal connection between the defendant’s conduct and the resulting injury” “an actual loss or damage” “Dangerous condition” can be one of: “isolated or nonrecurring” “continuing or recurring” After discovery, in district court, Wal-Mart filed for and was granted summary judgment. Johnson appealed to the Idaho supreme court, claiming “that the district court improperly granted summary judgment”. He claimed that Wal-Mart did not warn him that it’s business practice of allowing customers to carry liquids throughout the store causes “a continuous or foreseeable dangerous condition”. He contends Wal-Mart has procedures “to detect and clean up spills” and tells it’s employees “spills are largely responsible for slip/trip/fall accidents in the store”. Johnson also argued that “two employees were in the general vicinity … it is reasonable to assign constructive knowledge of this particular spill”. Wal-Mart responded that in this case, no evidence exists showing “a continuous or foreseeable dangerous condition, much less that it was or should have been aware of such a condition”. The conclusion that “slips or spills are a recurring problem” cannot be inferred by Wal-Mart informing employees that spills are largely responsible for slips in the store. It also said no evidence shows that “Wal-Mart had actual or constructive notice of the spill on which Johnson slipped”. Johnson did not know the origin of the liquid and how long it was there. Wal-Mart had no record of the spill. The spill of the liquid and Johnson’s slip were not caught on Wal-Mart’s surveillance cameras. Wal-Mart had “no record of any prior spills or accidents on the aisle where Johnson fell”. The supreme court said: “The evidence in this case is largely uncontested, and construed in Johnson’s favor shows that: (1) Wal-Mart sells liquids and allows them in the store; (2) Wal-Mart has policies in place for employees to police certain high-traffic areas looking for spills; (3) Wal-Mart has recognized that spills are largely responsible for slip/trip/fall accidents in its stores; and (4) Johnson slipped in an aisle near a high-traffic area while employees were in the general vicinity”. Johnson’s claim of a “dangerous condition” was analyzed by the district using both the “continuing” and “isolated” methods and “found the evidentiary record lacking in support of either claim”. For the continuing condition theory, the supreme court agreed with the district court statements: “‘[t]he mere presence of a slick or slippery substance on a floor is a condition that may arise temporarily in any public place of business,’ and thus ‘something more is needed’ to assign liability”. They also added: “ [t]o hold otherwise would mean every store that deals in liquids and has a cleanup policy recognizing the dangerousness of spills would be liable for every spill anywhere in the store almost instantly. This is not the law in Idaho. Johnson has failed to provide more than a scintilla of evidence for his contention … of a recurring or continuing dangerous condition”. For the isolated condition theory, the supreme court again agreed with the lower court saying: “Johnson has failed to provide any evidence that, exercising reasonable care, Wal-Mart should have known about this spill … the only evidence potentially bearing on constructive knowledge as to this particular spill is the fact that two employees were in that general area of the store, and that the spill was close to the high-traffic area that a Wal-Mart employee regularly checks for spills. This evidence fails to create an issue of material fact regarding Wal-Mart’s constructive notice”. The supreme court concluded “the Court affirms the district court’s summary judgment grant in favor of Wal-Mart. Costs to Respondent”. (Michael Johnson v. Wal-Mart Stores, Inc. (Idaho Supreme Court, Docket 45306)) Decided: June, 2018 Published: August, 2018 Feature Articles If you have an opinion on the retailing or retail real estate industries, take this opportunity to share your thoughts. 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