The Business Owner's FAILURE to WARN of a Hazard in a Slip & Fall Accident

If the business owner knows or should have known of a dangerous condition on the premises that he or she knew was possible or "foreseeable" or could present a danger to patrons, then he or she is said to have a duty to exercise ordinary care in either:

1. removing the hazard; or
2  at the very least, warning of the hazard

The patron has an absolute right to assume that the business premises are reasonably safe unless there are obvious conditions or indications to the contrary of that assumption.  Let's explore the following case example:

A plaintiff entered a fast food type restaurant inside of a shopping mall and noticed one of the employees mopping up the floor, and saw at least one warning sign saying "Wet Floor | Caution."  After the plaintiff finished eating at the restaurant, she slipped and fell down causing herself bodily injury; she thinks she slipped on water even though she did not see any water prior to falling, but noticed after the fall, her clothes were wet.  After the fall, the plaintiff saw the same warning sign but no employees with mops or mopping the floor.  The manager of the fast food restaurant testified that the fall occurred outside the perimeter marked by any of the warning signs.  The expert for the slip and fall victim testified that the wet floor was slippery and thereby dangerous to walk on; and also, the slipperiness was increased due to the improper method of rinsing and drying the floor surface.  After the trial, the verdict was a victory to the fast food restaurant but the slip and fall victim appealed because she was not able to instruct the jury on the owner's duty to remedy or warn of the hazard.  The Appeal Court agreed, and held the fast food restaurant has a duty to use effective warning devices.

The above California case happened in 1986 and it formed the foundation of a modification to California jury instruction BAJI 8.01 which now reads:

"the owner of premises is under a duty to exercise ordinary care in the use, maintenance or management of such premises in order to avoid exposing persons to an unreasonable of harm. Such duty exists whether the risk of harm is caused by the natural condition of such premises or by an artificial condition created on such premises."

The court rationalized that the owner of a business has a never-ending duty to keep the premises reasonably safe and to inspect for any potential hazards or defects.  Now, the business owner is not the absolute insurer of a patron's absolute safety, he or she owes an undisputed affirmative duty to exercise due reasonable care to keep all shopping aisles, floors and passageways in a safe type of condition, and at the same time, he or she must discover and then correct as soon as possible (reasonable time) and discovered dangerous conditions.

Retail store owners should always keep aisles free from clutter, and prevent the stocking of any unstable merchandise.  Thus, displays, shelving and aisles should be inspected on a regular basis and it is recommended they keep sweep logs.