Is the Placement of a Warning Cone Near a Spill Checkmate for the Plaintiff?

Author: Brian Cafritz, Esquire

It is all too common that a customer or piece of equipment spills or drips liquid on the floor. The business learns of the problem and places a cone on the floor either prior to cleaning or after cleaning. Despite the warning cone, a guest falls and sues the business for negligence.   Because Virginia applies a contributory negligence standard (1% negligence by plaintiff is a total bar to recovery), the defendant almost always has a decent liability argument to take to the jury. However, the real goal is to have the case dismissed on summary judgment and avoid the uncertainty of a jury altogether. Over the last 12 months, several new opinions in Virginia Federal Courts have provided valuable guidance on how to assess the potential liability of these claims, and they specifically point to critical facts to determine whether summary judgment is appropriate or not.

In each of the cases, the court focused on fact issues, such as “How close was the cone to the fall?” and “Was the condition that caused the fall the same condition the cone was warning against?

Like most states, the general law of premises liability in Virginia is that a business owes a duty to exercise reasonable care to make the particular area reasonably safe for plaintiff’s use, or to give adequate warning of any hidden or concealed danger that it knows or should know about.

However, behind that basic tenet of the law, there are a seemingly infinite number of variations in fact patterns that make the simplest concept problematic. Over the years, the Virginia Supreme Court and Federal Courts have fine-tuned the analysis to comport with the general standard cited above. When cones are placed in an area, the question is not typically whether the defendant had actual or constructive notice of the spill. Indeed, the placement of the cone is strong proof that defendant was aware of the hazard. Rather, that focusing on constructive notice, the question becomes whether or not the defendant’s warning to the customer is reasonable. Simply because the defendant knows of a spill, it is 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, 124 S.E.2d 26 (1962). Even in cases of defects which are not open and obvious, a property owner discharges its duty if it adequately warns its customers of the unsafe condition. Eure v. Kroger Ltd. P’hip. I, No. 7:11cv190, 2012 U.S. Dist. LEXIS 35043, 2012 WL 896347, at *6 (W.D. Va. Mar. 15, 2012). To hold otherwise would render the store owner an insurer against unavoidable accidents, which Virginia law does not require. Wiley, 2014 U.S. Dist. LEXIS 177136, 2014 WL 7359717, at *7.

The three recent rulings are instructive of these concepts with a special focus on the impact of the defendant’s placement of a warning cone at or near the spill area.

In Eure v. Kroger, the plaintiff slipped and fell on liquid on the floor of a Kroger grocery store. 2012 U.S. Dist. LEXIS 35043, [WL] at *2. A Kroger employee had discovered the spill, cleaned the area using paper towels and a mop, and placed a yellow warning cone in the middle of the spill area. Id. The employee stated in his deposition “that the floor was not completely dry, but was still moist, after he finished mopping up the spill.” Id. Twenty-one minutes elapsed between the employee leaving the area and the time of the plaintiff’s fall. Id. In deciding for Kroger, the court noted that “to establish that a defendant had constructive notice of a hazardous condition, a plaintiff must adduce evidence suggesting both how the object arrived on the floor and for how long the object had been on the floor before the accident occurred. Furthermore, mere speculation or conjecture is insufficient to satisfy this burden.” Id. Having already placed the cone over the spill, Kroger conceded that the wetness on the floor was from the mopping of the spill, which proved the question of constructive notice. The court, however, explained that proving constructive notice alone was not enough for plaintiff’s case to survive. In addition to proving constructive notice, “the plaintiff must demonstrate that the defendant acted unreasonably in response to the hazardous condition of which it had notice.” Id. The court granted summary judgment because Kroger mopped the spill and placed the cone in the middle of the spill area only several feet from the spot of the fall. As a result, the court felt that Kroger’s response to the spill was sufficient to meet its duty of care. The court noted that had the spill extended 12 feet from the cone, this may force a different result as to the reasonableness of the warning, but because the cone was so close to the spot of the fall, there was no such question. “To require anything further of the defendant would transmute Kroger, as a premises owner, into an insurer of its invitees’ safety.” Id.

The case of Wiley v. Wegmans, USDC ED VA December 2014 (2014 U.S. Dist. LEXIS 177136) involved a slip and fall in a Wegman’s grocery store. A customer had broken a bottle of wine, which spilled onto the floor. A Wegman’s employee cleaned the spill and placed a bright yellow cone over the area. Wiley was looking in the refrigerated foods as she passed the cones, but she did not see the cone, causing her to slip on the wet floor immediately next to the cone. The store’s surveillance video proved that Wegman’s placed a cone over the spill and wiped the area within one minute. A second employee came 2 minutes later and performed a more thorough cleaning. The court ruled that no reasonable juror could find that Wegman’s had not cleaned the spill in a reasonable time.   The judge then held that even though the floor remained wet after the second cleaning, that was not a reason to find negligence. “The duty to exercise ordinary care does not require the defendant to completely remove the spill “in less time than ordinarily required.” Great Atlantic & Pac. Tea, 203 Va. at 380 (1962). Rather, the dangerous condition must be removed within a reasonable time. Only one minute elapsed between the second cleaning and Wiley’s fall. Moreover, there a cone stayed over the area to continue the warning. The prompt cleanup and proximity of the cone to the spill and fall was ample evidence of Wegman’s satisfying its duty of care.

Finally, in Loomis v. Kroger Stores, Inc., USDC ED VA, June 17, 2015 (2015 US Dist. Lexis 78546) Magistrate Judge Douglas Miller entered Summary Judgment in favor of Kroger. In the case, Loomis slipped on water near a freezer in defendant’s store, despite the fact that Kroger had placed a cone within feet of the hazard. Loomis testified that she had previously worked in a convenience store and knew the warning cone was deployed to alert customers to water or a spill. Id. at 24. Loomis further stated that she was walking “a little bit more cautious, just because of the fact I saw the sign,” Id. at 25, but she still did not see any water. Loomis estimated being about a foot and a half from the cone when she passed it. After retrieving her food item, Loomis noted another customer walking right through the same area, and Loomis stopped to warn her that there was water on the floor.

Given the placement of the cone within feet of the hazard, Kroger conceded it had actual or constructive notice of the hazard. Loomis, however, argued that the adequacy of the warning and plaintiff’s exercise of ordinary care were jury questions. She further argued that the cone should have been placed closer to the freezer, and therefore, summary judgment was not appropriate. The Court disagreed and noted that Loomis walked as close as 1 ½ feed from the cone when she fell. Further, it was undisputed that the cones were there to warn of the water from the freezers. Since Loomis actually saw the cone and understood its purpose, the court held that Kroger satisfied its duty to warn as a matter of law.

The takeaway from these cases is the court’s emphasis that constructive notice alone is not sufficient for liability against defendant. Once notice is proven, defendant still has reasonable time to satisfy its duty and need not completely remove the spill, provided adequate notice is given. The key to the cone issue is to compare the size of the hazard to the placement of the cone. If the spill is contained to 3-4 feet, a single cone in the middle of the spill is sufficient. The wider area the spill covers, the more likely a questions as to the adequacy of the notice arises. Indeed, a large enough spill may require multiple cones. The recent case law suggests, however, that a warning cone by itself, if properly placed over a small sized are of wetness, is enough to satisfy the duty to warn of hazards.


UPDATE 10/29/15

KPM reported above 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.

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.


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