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Mall: No Slip and Fall Fault
by Ron Davis

A shopper injured in a fall at a Nebraska shopping mall has failed in her efforts to prove that the center’s owner provided faulty safety measures for patrons.

The shopper’s fall occurred when she stepped on what she described as a wet spot as she walked with her daughter one evening in the common area of the mall. After falling, she rose, walked into a nearby store and sat in a chair for a few minutes. A store employee then called the mall office, and a security guard arrived a few minutes later and questioned her about the fall.

She said that while talking with the guard, she saw three other persons slip and momentarily lose their balance while walking at the spot where she fell. She added that the guard then went over to that spot and picked up a brown item from the floor (later described as a napkin).

The guard who questioned the woman is an employee of a management firm that the mall’s owner retains to handle security and housekeeping, both for inside and outside the mall. Two security officers were on duty at the time of the woman’s fall, and one was working outside in the parking area. In addition, a team of housekeeping personnel were on duty to clear and clean tables in the food court and survey that area’s floors for trash and spills. Other housekeepers were assigned to make continuous rounds of the mall’s interior to clean up any debris on the floors and any spills that occurred.

Finally, security officers who observe a spill in the common area are trained to contact housekeeping and wait at the spot until the spill is cleaned up.

In response, the injured woman pointed out that the mall’s records show that during a recent 40-month period, 13 slip-and-fall accidents occurred in the interior common areas. Moreover, a licensed engineer said the tiles on the floor at the spot of the woman’s fall were “unreasonably dangerous when wet.”

In Nebraska, however, property owners are not insurers of their premises, and they have a duty only to exercise reasonable care in the maintenance of their premises to protect visitors from injury. As for the “dangerous” floor tiles in the mall, a Nebraska court ruled that because those tiles were not dangerous when dry, the mall’s owner did not create a dangerous condition simply by their existence.

On appeal, a Nebraska appellate court agreed that the mall’s owners had taken adequate precautions to protect visitors, explaining, “There is no evidence of the identity of the liquid, the source of the liquid, or the length of time it existed on the floor before this injury occurred.... The mall’s owner presented evidence that the mall exercised reasonable care to ensure the condition of the mall’s floor was not dangerous by assigning security officers and housekeeping staff to regularly patrol the mall, looking for spills and other hazards.... We conclude that the injured woman failed to prove that the mall’s personnel created, knew of, or should have known of any items on the floor prior to her fall.” (Lenzen v. JG Shopping Center Management LLC, 2006 WL 2346367 [Neb.App.])

Decision: September 2006
Published: October 2006



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