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Premises Liability Claims

I. Introduction

A new case has just come across your desk involving a fall at one of the many retails stores you insure. The injuries were fairly severe. You have been asked to perform an early evaluation of the case in an effort to cut-off a potential lawsuit. As you are agonizing over how to properly evaluate this claim, you remember that you have also inherited several "slip and fall" cases from an adjuster who just quit.

 

There are cases on your list involving falls caused by a foreign substance on the premises, falls caused by a part of the premises, as well as injuries caused by falling items. You are supposed to have an updated liability analysis and evaluation of all of the cases to home office by the end of the week. You need to get a handle on Alabama premises liability law quick. Luckily, the remainder of this report provides a brief overview of Alabama premises liability law, as well as some suggestions to put you in the best position to defend any claims that do arise.

 

II. Legal Analysis

 

A. General Law

In Kmart Corp. v. Basset, 769 So.2d 282, (Ala.2000), the Supreme Court of Alabama described the general duty owed by a business premises owner to invitees as follows:

The owner of premises owes a duty to business invitees to use reasonable care and diligence to keep the premises in a safe condition, or, if the premises are in a dangerous condition, to give sufficient warning so that, by the use of ordinary care, the danger can be avoided.

Bassett, 769 So.2d at 285 citing Armstrong v. Georgia Marble Co., 575 So.2d 1051, 1053 (Ala.1991).

 

The Alabama Supreme Court went on to state that, “this duty does not, however, convert a premises owner into an insurer of its invitees’ safety.”  Bassett at 285, citing Hose v. Winn-Dixie Montgomery, Inc., 658 So.2d 403, 404 (Ala.1995).  “Moreover, the mere fact that a business invitee is injured does not create a presumption of negligence on the part of a premises owner.”  Id.  “Rather, a premises owner is liable in negligence only if it fails to use reasonable care in maintaining its premises in a reasonably safe manner.”  Id.  In fact, “there is no presumption of negligence which arises from the mere fact of injury to an invitee” and the “principle of res ipsa loquitur is not applicable.”  Tice v. Tice, 361 So.2d 105, 1052 (Ala. 1978).

 

The defensibility of any customer injury claim is going to depend upon the nature of the incident.  There are three basic ways injuries can occur in a particular store.  Those are: (1) instances where a customer slips or trips as the result of a foreign substance or instrumentality on the premises; (2) instances where a customer slips or trips because of the condition of the premises itself or a condition that was created by the store; or (3) instances where a customer is injured by falling merchandise. 

 

In each of these instances, the customer has the burden of proving a dangerous or defective condition on the premises which caused his or her injury.  In the first instance, the customer has the added burden of proving that the store had actual or constructive notice of the allegedly dangerous condition.  Proof of notice is not a prerequisite to recovery in the second two circumstances.

 

In every instance, the store may avoid liability by proving that the injury was the result of an "open and obvious" condition that should have been recognized by the customer through the exercise of reasonable care.  The Supreme Court of Alabama discussed open and obvious conditions in the case of Denmark v. Mercantile Stores Company, specifically holding that:

A condition is "open and obvious" when it is known to the (plaintiff) or should have been observed by the (plaintiff) in the exercise of reasonable care.  (Citation omitted).  The entire basis of (a store owner’s) liability rests upon (its) superior knowledge of the danger which causes the (customer’s) injuries.  Therefore, when that superior knowledge is lacking, as when the danger is obvious, the (store owner) cannot be held liable.  Denmark, 2002 WL31341553 (Ala.2002). 

The burden of proving an open and obvious condition rests with the store which is trying to assert the defense.  Ex parte Neese, 819 So. 2d 584 (Ala.2001).

 

B. Injuries Caused By a Foreign Substance or Instrumentality on the Premises

 

If a customer’s injury is the result of a foreign substance or instrumentality on the premises, usually a spill or some object which has fallen to the floor, the plaintiff has an additional burden of proof.  In these instances, in addition to proving a defective or dangerous condition, the plaintiff must also prove that the store had actual or constructive notice of the condition.  Wal-Mart Stores, Inc. v. Rowland, 813 So. 2d 861 (Ala.2001).  In Rowland, the Alabama Supreme Court held that an injured plaintiff must prove that the injury was proximately caused by the negligence of (the store owner) or one of its servants or employees.   Actual or constructive notice of the presence of the substance (or instrumentality that caused the injury) must be proven before (the store owner) can be held responsible for the injury.  Id. at 863. 

 

The plaintiff may prove actual notice by affirmative evidence that the store knew that the substance or item was on the floor.  The customer may prove constructive notice by evidence that the substance or item had been on the floor for a long enough period of time that the store, through the exercise of reasonable care, should  have known of its existence.  Actual notice is most often proven from accident reports, incident reports, or employee testimony indicating that, prior to the fall, the store knew that there was a foreign substance on the floor.  Constructive notice has been proven in the past by testimony from the plaintiff that the  substance which caused the fall was old, dirty, sticky, or had footprints in it.  Vargo v. Warehouse Groceries, 529 So. 2d 986 (Ala.1988); S. H. Kress & Co. v. Thompson, 103 So. 2d 171 (Ala.1957).  If the plaintiff cannot prove actual or constructive notice, the store is entitled to summary judgment or directed verdict.  The store can also obtain a summary judgment, directed verdict, or a defense verdict by proving that the condition was open and obvious. 

 

The majority of the cases granting summary judgment on the notice issue involve instances where there is no evidence that the store knew of the condition or that the condition had been in existence for an extended period of time.  See Brown v. Autry Greer & Sons, Inc., 551 So. 2d 1049 (Ala. 1988)(affirming a summary judgment for the defendant where the plaintiff presented no evidence to show that the defendant had actual or constructive notice of the substance in question, or that the defendant was delinquent in not discovering and removing it); Vargo v. Warehouse Groceries Mgt., Inc., 529 So. 2d 986 (Ala.1988) (affirming a summary judgment for the defendant where the plaintiff and her only witness testified that they had no idea how long the puddle of water on which the plaintiff had slipped had been on the floor, except that it 'looked like it had been there for a while,' and where there was no other evidence as to how long the water had been present or that the defendant had notice of it); East v. Wal-Mart Stores, Inc., 577 So. 2d 459 (Ala.1991) (affirming a summary  judgment for the defendant where the plaintiff and her only witness testified that they did not know how long the substance had been on the floor and that they did not believe that the defendant had any notice the substance was there until after the accident); Cash v. Winn-Dixie Montgomery, Inc., 418 So. 2d 874 (Ala.1982) (affirming a summary judgment for the defendant where there was no evidence that the defendant knew that the foreign substance had been on the floor for such a length of time 'as to impute constructive notice'); Logan v. Winn-Dixie Atlanta, Inc., 594 So. 2d 83 (Ala.1992) (in which the plaintiff testified that she did not know what the substance was that caused her to slip and the Court held that the plaintiff’s evidence presented to show that her injuries were the result of the negligence of the defendants afforded nothing more than speculation, conjecture,  guess and was wholly insufficient to warrant submitting the case to the jury.).

 

Because of the additional burden on plaintiffs to prove actual or constructive notice, cases involving foreign substances are the most defensible of customer injury claims.

 

C.Injuries Caused by Conditions That are Part of the Premises or Created by Employees

 

The law is different when injuries are caused by part of the premises, such as  part of a doorway curb, or stairs, or where the injury is caused by a display created by a store employee.  In situations where the injury is caused by part of the premises or a display that was set up by the store, proof of notice is not a prerequisite to the plaintiff's success on their claim.  Wal-Mart Stores, Inc. v. Rowland, 813 So. 2d 861 (Ala. 2001).  In Rowland, the Alabama Supreme Court stated "where, however, the defendant or his employees have affirmatively created the dangerous condition the plaintiff need not introduce evidence that the defendant had actual or constructive knowledge of the hazard.  Under such circumstances, the Court presumes notice."  Id. at 863.


The plaintiff must still prove the fall was caused by a defective or dangerous condition, but does not have the burden of proving that the store had notice of the condition.  If the condition is part of the premises, or something set up by a store employee, the law presumes that the store had notice of the condition.  The store may still obtain summary judgment, directed verdict, or a defense verdict, if it can prove that the condition was "open and obvious".

 

With this said, notice of the condition is still an important issue.  While the plaintiff does not have to prove notice, actual notice is a prerequisite to the recovery of punitive damages.  Wal-Mart Stores, Inc. v. Rowland, 813 So. 2d 861 (Ala. 2001).  Additionally, the store can argue that evidence proving that there had never been any other accidents because of this particular condition is admissible as going towards the open and obvious nature of the alleged defect.  In other words, while the plaintiff does not have to prove notice in this situation, the store has an argument that the lack of other similar accidents is admissible to prove that condition was either nor dangerous or open and obvious.  The admissibility of this evidence is going to be left up to the judge and any decision on this matter will only be overturned upon a showing of abuse of discretion.

 

D. Injuries Caused by Falling Objects

 

Injuries caused by falling objects most often involve items falling from displays that are either part of the premises, or were set up by the store.  Accordingly, their treatment under the law is almost identical to the preceding section.  If the falling object is the result of a display set up by the store or some part of the premises falling, then the customer does not have to prove notice to survive summary judgment. 


Usually, the store cannot use the open and obvious defense in falling object situations.  However, a defense that is available is the defense of contributory negligence.  Alabama is a pure contributory negligence state, which means that, in theory, a plaintiff is barred from any recovery if they are one percent responsible for the incident.  Contributory negligence  will most likely be a jury question, but can be proven by showing that the customer played some role in causing their injuries by touching the display or trying to remove an item from the display. 

 

E. Legal Considerations

 

In investigating any slip and fall incident, there are a number of steps that a store can take to increase the defensibility of any lawsuit that arises.  First, a detailed incident report should be filled out at the time of the injury.  Second, pictures should be immediately taken of the area where the  injury occurred and good pictures should be obtained of any displays or conditions that caused the fall.  Being able to show the jury the exact condition which caused the plaintiff=s fall, and how that condition appeared on the day of the incident, is paramount to succeeding on any open and obvious defense. 


A jury is not going to find that an alleged defect is open and obvious unless they have a clear picture of the nature of the defect.  Where available, store videotapes should be preserved.  While they sometimes may be damaging because they show the graphic nature of some of the injuries sustained in a fall, they can also be invaluable in disproving a particular plaintiff's version of events.  When possible, videotapes should be immediately reviewed after any incident, no matter how small, to determine whether or not they captured the incident on tape.  If the tapes show how the fall occurred, the tapes should be preserved in the event of future litigation.


One issue that comes up in most premises liability cases is the issue of prior incidents.  Under Alabama law, the defendant may argue that discovery of prior incidents should be limited to other similar accidents which occurred at this particular store.  Unfortunately, plaintiffs often try to get discovery on falls or injuries from all of that store=s locations.  Alabama law provides for liberal discovery, and a judge=s ruling on a discovery issue will not be overturned absent showing of an abuse of discretion.  Though counsel should try to limit the discovery to instances involving similar falls for the particular store at issue, there is precedent in Alabama upholding a trial court which ordered  production of similar accidents on a statewide basis.  Ex parte Wal-Mart, Inc., 809 So. 2d 818 (Ala.2001) (upholding a trial judge=s order requiring Wal-Mart to produce other falling merchandise incidents on a statewide basis).  Even when the judge orders discovery of similar incidents at other stores, the court will generally limit the discovery to the State of Alabama.  The store may also put evidence before the court of the undue burden the broad discovery would place on it.


While these steps will not prevent lawsuits, they will help the defensibility of any litigation that arises by providing the clearest picture of  how the accident occurred.  While not exhaustive the preceding analysis should add some guidance on the law to be applied in any particular case, and hopefully, how to put the case in the best defense posture possible.


Contributing Author:

Christopher J. Zulanas
Christopher J. Zulanas, Shareholder
Email Address czulanas@friedman-lawyers.com
Direct Line 205-278-7050
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This client alert is provided solely for educational and informational purposes. It is not intended to constitute legal advice. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.