Last month, KPM’s Brian Cafritz reported about a string of recent rulings on slip and fall cases and the impact that placing a warning cone has on a company’s liability. Our report was quite prophetic, as it preceded yet another ruling that reinforced our analysis.
UPDATE
By Brian Cafritz, Esq.
On October 8, 2015, Judge Moon of the USDC, Western District of Virginia, published his opinion in Robinson v. Kroger Co., Case No 6:14-cv-00046. In Robinson, plaintiff slipped and fell on liquid at a Kroger store when no cones or signs were displayed to warn of danger. Store video showed that the spill in question was created only 65 seconds before Robinson fell, and 37 seconds from when Kroger was notified of the spill. Facts revealed that Robinson entered the area of the spill and turned her cart to walk towards a self-checkout stand. In doing so, she pushed her cart directly through the spill, and once her feet hit the area, they slipped from under her. In depositions, Robinson stated that the puddle sized spill was beige, which was the same color of the floor. Ms. Robinson also acknowledged that nothing was hiding the liquid substance from her view, and that she was able to see it without difficulty when she stood directly above the spill. When asked whether, “if [she] had been looking at the floor looking for this liquid, would [she] have been able to see it,” Ms. Robinson responded, “I guess.”
Based on this testimony, Kroger moved for Summary Judgment, arguing that because Robinson could clearly see the spill after the fall, and because she admitted that had she been looking for it she could see it, the spill was an open and obvious condition that discharged the duty to remedy or warn of the condition. Judge Moon denied Kroger’s Motion for Summary Judgment, holding that it was for the jury to decide if the condition was open and obvious. Rather than taking Robinson’s statement as an admission, Judge Moon held that her statement was conjecture. He ruled that because the spill was the same color as the floor, a jury could find that even if Robinson was looking, it may have been obscured from view. Further, the court distinguished Robinson’s case from other open and obvious cases, noting that there were no footprints tracking the liquid away, and the spill was not located near the store entrance on a rainy day, when it is natural to expect that the floor will be slippery.
Second, Kroger looked at the recent decisions on slip and fall cases and focused on the extremely short period of time between the spill and notice of the fall. Pointing to the recent decisions based on the rule that Stores are “[not] required to remove the foreign substance in less time than ordinarily required for such a task,” Great Atlantic & Pac. Tea Co. v. Rosenberger, 203 Va. 378, 380, 12 S.E.2d 26 (1962), Kroger argued that the minute between spill and fall was, as a matter of law, insufficient to allow Kroger time to reasonably remove the spill. Judge Moon disagreed, holding that he would not set a bright line test that ruled stores cannot breach a duty so long as the customer falls within 2-3 minutes of a spill’s creation. To the contrary, Judge Moon interpreted the recent ruling in Wiley v. Wegmans Food Mkts., Inc., Civil No. 1:14-cv-235, (E.D. Va. Dec. 24, 2014) to hold that the time a spill occurred was but one factor to consider, along with the manner in which the store responded once it learned of the spill. Specifically, he noted that the jury could consider if it would have been reasonable for Kroger to have placed a warning cone in the area in those 37 seconds of notice, if the store tried to wipe up the spill, or if they kept an employee over the spill to warn until some action could be taken. Because there was a dispute as to what steps Kroger took after notice, Summary Judgment was denied.
Judge Moon’s ruling helps clarify the recent rulings that time alone is not determinative, and reinforces KPM’s conclusions in its recent newsletter; i.e., that the immediate placement of a warning cone could be check mate. Based on Judge Moon’s analysis, it appears that had Kroger placed a warning cone or used some other warning immediately upon knowledge of the spill, Summary Judgment may have been appropriate. By doing nothing in those 37 seconds, Kroger left the door open for a dispute of fact as to whether Kroger acted reasonably.
If you have any questions about this ruling, or wish to discuss any case you may have, please do not hesitate to contact the Retail / Restaurant team at KPM.