Court Ices Plaintiff’s Claim that Hotel was Negligent for Running a Fountain in Freezing Temps

Written by Brian Cafritz, Esq.  and Chris Bergin, Esq.

In terms of sheer volume, the most relentless legal threat facing restaurant and retail owners is the deluge of slip and fall claims.  Fortunately for Virginia-based businesses, the premises liability law within the Commonwealth tends to be defense-friendly.

For a Plaintiff to establish a claim of premises liability against a restaurant or retail owner, he must prove that he was harmed by a known danger on the property.  Typically, this boils down to two issues:  Did a dangerous condition exist on the premises? And did the Defendant have notice of that danger prior to the Plaintiff’s accident?

The second issue—whether a business had notice of a dangerous condition— is the most litigated.  There are three ways a Plaintiff can establish notice: (1) by proving that the Defendant had actual notice of a dangerous condition; (2) by proving that the Defendant had constructive notice of a dangerous condition; or (3) by proving that the Defendant created the dangerous condition by its own affirmative conduct.  Each method of establishing notice comes with its own legal standard, which the Plaintiff must meet.

Most of the case law in Virginia focuses on the legal standards for establishing actual and constructive notice, which are both typically rigid and defense-friendly standards.  Plaintiff’s, however, often try an end around the notice hurdle by arguing a concept known as The Genesis Doctrine.  Under this theory, the Defendant is charged with notice for any reasonably foreseeable dangers created by its conduct.  In other words, because the Defendant is the “Genesis of the condition,” notice is presumed if the danger is from that condition reasonably foreseeable.  However, this doctrine does not apply to all conditions.  It is limited to situations where the Defendant created the condition with its affirmative conduct.  This was the precise issue in the recent case of Thomas v. Omni Hotels Management CorporationIn Thomas, a Plaintiff was staying at a Resort in Hot Springs, Virginia in mid-November.  One morning, at approximately 9:30 AM, she decided to take a walk around the resort.  As she left, she noted that the temperature was only 22o—well below freezing. On her way out of the resort, the Plaintiff walked by a “bubbling type” fountain, in which water continuously poured from an upper bowl into a reservoir in the fountain’s base. As she walked past the fountain, she slipped and fell on a small patch of ice and sustained injuries.

Trying to avoid the difficult constructive notice hurdle, the Plaintiff argued that the dangerous icy conditions were created by the Defendant’s “affirmative conduct.”  When pressed, however, the Plaintiff could not clearly explain the exact nature of the affirmative conduct.   Plaintiff tried to argue that Defendant’s decision to allow the fountain to run and to not turn the water off in freezing temperatures affirmatively created the condition, and that ice forming from it was a foreseeable danger.    The District Court disagreed and granted the Defendant summary judgment. It enumerated two reasons for its holding.

First, the Court noted that it was unclear that the Defendant had actually engaged in any “affirmative conduct” so as to create the dangerous condition. Although not explicitly stated, the ruling suggests that simply installing an outdoor water fountain likely would not amount to “affirmative conduct.”  Moreover, failing to turn the fountain water off when it was cold outside was an omission, not an intentional action.  As such, the Court ruled that Defendant did not affirmatively create the dangerous condition at all.

Second, even assuming that the Defendant had taken some affirmative step to creating the dangerous condition, there was no evidence that ice forming on the walkway was actually a foreseeable event. Indeed, the Defendants had never received complaints of ice or water around the fountain at any point in the resort’s history.  Based on these factors, the Court ruled that the Defendant was not aware that water could splash from the fountain onto the walkway.

There are two helpful takeaways from Thomas. First, the plaintiff-friendly foreseeability standard will only apply in situations where there is Misfeasance; i.e., where Defendant took some affirmative step in creating a dangerous condition.  Merely failing to remedy the conditions, or Nonfeasance, is insufficient to amount to affirmative conduct. Moreover, under Thomas, the act of installing a potentially dangerous fixture is likely insufficient, by itself, to amount to affirmative conduct.

Second, under the foreseeability test, the Plaintiff must provide some evidence showing that the Defendant was aware that the allegedly dangerous condition could be dangerous or had been dangerous in the past. In Thomas, the Defendant was completely unaware as to whether the fountain ever splashed on the walkway in the past.  Having shown no instances of past problems with the fountain, it was unforeseeable that the fountain would suddenly become dangerous.

Although a relatively small case from the Western District of Virginia, Thomas provides a bit of fresh insight and a few new legal strategies to assist restaurants and retailer owners who stand accused of creating allegedly hazardous conditions. As the law surrounding premises liability continues to evolve, the Restaurant and Retail team at KPM LAW are here to help navigate the changing legal waters.

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