The Notice evidentiary element is by far the most critical element in a San Diego slip and fall injury case that needs to be established as soon as possible in a case.  Without the crucial notice evidence, there is very little hope of success for a slip and fall victim.  The existence of the hazard or slippery substance is next in importance.  For example, an expert may be needed and retained to establish that under normal use conditions the floor surface is slippery and that special precautions would be necessary to render the floor reasonably safe.

The At-fault Retail Store or Supermarket Owner Has a Duty to Inspect
Here is one example:  A female customer was shopping at a general discount store when she slipped in a puddle of spilled white yogurt next to a refrigeration unit and suffered very bad injuries to her knees, including ligament tearing. About six months later, the customer filed a lawsuit against the discount store for bodily injuries.  During trial, the customer testified that she did not notice whether the puddle of yogurt was fresh or had a smell to it, odorous, or whether it was warm or cold.  She could not present evidence showing just how long the yogurt had been on the floor surface.  Nonetheless, customer claimed at trial that because evidence showed the owner had not inspected the floor in a reasonable period of time prior to the fall injury, a jury could infer or assume the puddle was on the floor long enough for the store employees to have discovered it and cleaned it up.

The customer's retained maintenance expert concluded that he found no direct evidence of indicating just how long the puddle of yogurt had been on the floor before the customer fell; however, he did make the opinion that this discount store and similar ones should implement three basic management tools relevant  to flooring maintenance:

1. Accountability (the name of the person who performs the inspections should be identified by the store owner);

2. Frequency (management should know how often the floor is inspected); and,

3. Verification (a written record or some other form of verification, like a sweep log, should be presented to management).

A former store manager testified at trial that although the store keeps no written inspections records (sweep logs), all store employees are well trained to look out for and clean up any spills or other hazards on the floor. He also stated that several employees work in the pantry aisles next to the yogurt section refrigeration unit, and that an employee usually walked the aisle where the customer fell every 15-30 minutes.  When he was asked whether the yogurt could have been on the floor for 10 minutes or three hours, the manager testified that it would be difficult or nearly impossible for anything to be on the discount store's floors for more than 15 or 30 minutes.  He did admit that the yogurt could have been on the floor for as long as two or three hours.  On the day of the fall injury, the manager testified that management would not have any idea if the aisle where the fall happened was inspected at any time during that day. The discount store claimed that the injured party failed to carry her burden of showing the yogurt puddle existed for a sufficient time to establish constructive notice to the discount store.

Here is the result:  the jury found for the injured party and the verdict was appealed to the California Supreme Court; there, the Supreme Court found that the injured party could be relieved of her burden of showing how long the yogurt was on the floor if she demonstrated the site or aisle had not been inspected within a reasonable period of time!  This was the holding of the 2001 Ortega v. Kmart Corp legal case.  Another victory for California slip and fall victims! 
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