Notice Standard in Slip and Fall Cases

December 3, 2018

When someone slips and falls in a grocery store like H-E-B, or even slip and fall in a high-end restaurant such as Oceanaire, their instinct is to blame the establishment. Then when they are met with expensive hospital bills and have undergone extensive treatment, they are ready to procure legal counsel and sue for the negligence of the establishment in question.

However, an issue is often found with these plaintiffs and their counsel is found with the “actual or constructive notice” standard required in negligence actions involving a slip and fall. Essentially, the plaintiff is burdened to prove that the establishment “knew or should have known” that a condition existed that could pose a danger to their invitees. Sounds fairly easy given that plaintiffs have the option of proving either the more stringent actual knowledge (“knew”) or the less stringent constructive knowledge (“should have known”). However, establishments or businesses seem to avoid liability for lack of actual and constructive knowledge more than one would ordinarily assume. While the standard seems to prima facie provide more protection and a swift recovery for plaintiffs, in practice it appears to provide more of a gatekeeping function in favor of the establishments being sued. This allows them to avoid paying for the damages that were incurred while on their property. How is this done exactly? Well, there is some case law that illustrates the above issue.

In Wal-Mart Stores v. Reece, 81 S.W.3d 812 (Tex. 2002), Reece was at a Wal-Mart snack bar in front of the drink/ice machine when she slipped and fell due to there being a clear liquid on the floor. A Wal-Mart employee – who was on break – walked up to the snack counter and then away in a direction that was not near the puddle. Reece had to undergo a pretty extensive surgery due to her injuries. In that case, Reece argued that there were plenty of employees around that could have noticed that there was a leak from the ice machine that caused a large and “noticeable” clear puddle to appear. To be specific, she argued that there was an employee who was standing right next to her that should have seen that puddle while they were at the counter near the ice machine. However, the court disagreed that the employee “knew or should have known” that there was a big and clear puddle there. Here, the court stated the “actual or constructive notice standard” and analyzed that standard with the facts of the case. In pertinent part, the elements are:

  1. The premises owner placed the substance on the floor
  2. The premises owner actually knew the substance was on the floor; OR
  3. It is more likely than not that the condition existed long enough to give the premises owner reasonable opportunity to discover it.

These elements show both actual notice and constructive notice, as well as gift the plaintiff with only having to prove one or the other. However, the court in Reece stated the following in how to determine whether an establishment could be held liable for actual or constructive knowledge when employees could have or should have found the dangerous condition:

“What constitutes a reasonable time for a premises owner to discover a dangerous condition will, of course, vary depending upon the facts and circumstances presented. And proximity evidence will often be relevant to the analysis. Thus, if the dangerous condition is conspicuous as, for example, a large puddle of dark liquid on a light floor would likely be, then an employee’s proximity to the condition might shorten the time in which a jury could find that the premises owner should reasonably have discovered it. Similarly, if an employee was in close proximity to a less conspicuous hazard for a continuous and significant period of time, that too could affect the jury’s consideration of whether the premises owner should have become aware of the dangerous condition. But in either case, there must be some proof of how long the hazard was there before liability can be imposed on the premises owner for failing to discover and rectify, or warn of, the dangerous condition. Otherwise, owners would face strict liability for any dangerous condition on their premises, an approach we have clearly rejected.” Wal-Mart Stores v. Reece, 81 S.W.3d 812, 816 (Tex. 2002)

In other words, an establishment’s notice is contingent upon whether the object was conspicuous and whether they were in close enough proximity to the condition to recognize it and cure it before it caused any harm to invitees. In this case, the puddle was big but it was clear (inconspicuous) and the employee, who was on their break at the time, that Reece alleged was around went in the opposite direction (not in proximity). Therefore, as the court stated, liability could not be imposed because it was hard for the plaintiff to show that the premises owner or establishment – through their employees – had actual or constructive knowledge of the clear puddle that caused Reece damages. So, although the “actual or notice” standard appears to make it easier to establish liability against these establishments, the court’s elaboration has proven to be more of a hinderance than an aid.

Another case that illustrates this “gatekeeping” issue is, Wal-Mart Stores v. Gonzales, 968 S.W.2d 934 (Tex. 1998). The primary focus of this appellate-level case was “constructive notice.” Here, the plaintiff slipped and fell in a Wal-Mart store and the cause was a dirty piece of macaroni from a macaroni salad left on the floor in one of the aisles. Plaintiff attempted to argue that the dirt on the macaroni suggests that it had been there for a long period of time and that one of the employees of that particular Wal-Mart “should have known” about it. Further, she also argued that the tracks allegedly left behind by previous invitees suggests that the length of time was enough for an employee of Wal Mart to know. However, the court vehemently disagreed making note that constructive notice could not be proved with merely stating that the macaroni salad had dirt in it and that there were foot tracks – to prove the length of time. Nor can stating that “seemed like it been there for a while” enough to prove that it was there long enough for an employee to take constructive notice. The most important dicta from this opinion states in pertinent part:

We hold that when circumstantial evidence is relied upon to prove constructive notice, the evidence must establish that it is more likely than not that the dangerous condition existed long enough to give the proprietor a reasonable opportunity to discover the condition. Because we conclude that the circumstantial evidence in this case supports only the possibility that the dangerous condition existed long enough to give Wal-Mart a reasonable opportunity to discover it, we reverse and render judgment for Wal-Mart. Wal-Mart Stores v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998)

In other words, presenting evidence of a “possibility” that the employees had enough time and opportunity to discover the dangerous condition is not enough “clear and convincing evidence” to convince a learned judge or jury of the lesser “constructive notice” requirement. Even within the Gonzales opinion, the court shared many case illustrations where a Plaintiff attempted to establish the length of time one should have discovered the condition by “dirt”, “foot tracks”, “dust”, and the like, and was unsuccessful in proving constructive notice. The law established in this opinion, and reiterated in the more recent Reece case, has shown how difficult the courts have made it for Plaintiff’s or those who are victims of premise liability injuries in one way or another to recover. This opinion begs a few questions, would courts rather victims settle outside of court on these issues? Or, are they tending to show a bias for big businesses or even smaller establishments?

It is uncertain what the answer to these questions are or the primary motive. The courts in the opinions cited above all relied on case precedent either established in this jurisdiction or elsewhere. But it does prove to be a challenge for those wishing to recover against an establishment such as a Wal Mart or even a restaurant. All the establishment has to do is state that the dangerous condition was “inconspicuous”, there was no opportunity to discover it, or that a few muddy tracks are insufficient to prove that they “should have known.” What’s left for the Plaintiff? Finding insurmountable evidence that suggests that the condition was in fact “conspicuous” and that there was plenty of opportunity to find it. Or, by some miracle, there’s a video from the establishment’s premises that shows the muddy tracks being there for a long enough time and that employees simply ignored. From looking at the elements, one would not know how big of a burden it is on the victim/Plaintiff in these situations. But it is clear, these cases show how the law is functioning to limit or extinguish recovery for those who are injured as invitees on these premises. If they are not responsible by law, who will provide for these (often extensive and fatal) injuries?

Financial Recoveries for Slip and Fall Injuries

In any case, slip and fall victims can seek financial compensation for all of their accident-related injuries and losses. The damages available in premises liability cases typically include:

  • Outstanding medical bills for diagnostics, treatment, and surgery
  • Future medical expenses for follow-up procedures, therapy, and rehabilitation
  • Prescription costs
  • Lost wages for time missed from work
  • Lost earning capacity for debilitating injuries
  • Disfigurement
  • Past and future pain and suffering
  • Past and future mental anguish

In cases of gross negligence or willful or intentional conduct, you may be entitled to recover exemplary damages as well.

Have You Been Injured in a Fall on Someone Else’s Premises? Contact Morrow & Sheppard LLP Today

For more information and to find out if you may have a premises liability claim, we encourage you to contact us as soon as possible. Our Houston accident lawyers have helped numerous clients obtain maximum compensation for their injuries and we can make sure you receive the compensation you deserve. To get started, call our offices at (800) 489-2216 or request a free consultation today.

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