I continue to get questions about dealing with the defense in slip & fall cases where they say you can’t prove the spill or debris was there long enough for the store to be on notice and the motion for summary judgment that is looming. I think we should all be focusing on turning this defense against them. If customers keep getting hurt because the current company polices are inadequate to respond in time to the danger, then they need to do things differently. They need to take steps to prevent the danger from occurring in the first place. They need to create rapid response policies which are strictly enforced. I know the law in some jurisdictions makes this hard to do, but the ends of justice make it worth a strategic, concerted effort to find a way to pursue claims for negligent design, policies, training and enforcement.
When a business knows something very dangerous will occur often and without warning, in situations where customers won’t be able to protect themselves, they have a duty to establish countermeasures that actually work. It is not acceptable to let customers keep getting hurt over and over. It is not acceptable to keep making the same excuse that the store didn’t have time to protect their customer because the dangerous condition occurred too close in time to the injury. It is not acceptable to keep relying on policies that the store knows don’t work. It is not acceptable to have floors that cannot be maintained in a safe condition.
Reasonable care requires that they fix the problem when serious injuries happen with such frequency due to safety measures that consistently fail. Reasonable care requires they deal with the flooring issues and come up with better polices, ones that work and are strictly enforced. The definition of safety is injury prevention, not futility. The definition of insanity is to keep doing the same thing hoping for a different result.
The current policy that every employee is responsible for checking the floor when they move around the store is designed to protect the store, not the customers. If everyone is responsible, no one is responsible, everyone figures the next person will do the job. Plus, it is easy to prove stores do nothing to enforce this papering over of the mayhem. They don’t do random checks from “eye in the sky” cameras to see if employees are looking down. There is no retraining and no disciplinary action for failing to comply. A corporate rep depo will prove these things.
Foreseeability
Grocery stores know: things get on the floor with frequency; each time it happens an extraordinarily dangerous condition is created; their current policies don’t work.
The root of the problem
Store floors are designed for profits, not safety. They are cheap to build, cheap to clean and shopping carts roll easily on them, which increases bulk sales. The trade-off is those floors are hard as rock and suddenly turn as slick as ice when any moisture gets on them from a spill or juicy produce. They are not porous, so moisture pools and the surface has no grit to prevent slippage when wet like pavement in parking lots or on sidewalks.
Reasonable care is based on circumstances
Factors include: likelihood, frequency and seriousness of injury; ability to protect one’s self; and assumption of risk (such as choosing to do a dangerous activity). Here likelihood, frequency and seriousness of injury is high. The ability of customers to protect themselves is low. There is absolutely no assumption of risk, shopping is not supposed to be for daredevils.
Stores know customers can’t protect themselves because: they are looking up at the shelves, not down at the floor; they are usually pushing a cart so they can’t see the ground in front of them. They don’t understand that a little bit of moisture turns this particular surface into an extremely slippery surface, unlike sidewalks and parking lots, because those surfaces are designed to maintain grip when wet, they are porous and have a rougher surface.
The answer
We need to pursue negligence at the policy, training and enforcement level to get out in front of the “we didn’t have time to react” defense. What more can stores do in the way of prevention: Put a non-slip coating on the floor (like the grit that can be put on swimming pool decks); increase floor surveillance and require strict compliance. They should assign aisles to individuals who check them constantly (such as 6 aisles per person), with special emphasis on higher risk areas, such as produce depts., or areas with freezers or drink machines. This list of what reasonable care requires, under the circumstances, is meant to be a beginning, not the end.
Conclusion
When it comes to safety, going through the motions isn’t enough. If what they’re doing isn’t working, it’s not enough. If they don’t want to spend a little more money to make their premises safe, then sell greeting cards rather than groceries, or accept responsibility for the fallout. It’s time we put a stop to them hiding behind inadequate policies that are there to provide them cover, while providing no meaningful protection for their paying customers who are being exposed to grave danger without even knowing it.