Lack of Notice as a Defense to Premises Liability Cases
June 21, 2016
Deone Powell, Esq. secured a defense award on behalf of a restaurant sued by plaintiff who alleged that she slipped and fell on what she believed to be water of unknown origin on the floor in the buffet area of the restaurant. Plaintiff alleged that she had walked in the area of the “water” on at least three occasions prior to falling and had not seen the allegedly defective condition. However, the restaurant’s manager testified that he had observed plaintiff walking barefoot in the area of the alleged “water” and had instructed her to put on her shoes while in the dining area. He believed that her ill-fitting shoes caused the fall. Nevertheless, plaintiff alleged numerous soft tissue injuries to her neck and back and treated with passive physical therapy.
Applying section 343 of the Restatement (Second) of Torts as Pennsylvania does, an insured is subject to liability for physical harm caused to an invitee only if: he knows of, or reasonably should have known of the condition and the condition involves an unreasonable risk of harm, he should expect that the invitee will not realize it or will fail to protect themselves against it, and the party fails to exercise reasonable care to protect the invitees against the danger. An invitee must prove either the proprietor of the land had a hand in creating the harmful condition, or he had actual or constructive notice of such condition.
The issue of notice is often an uphill battle for plaintiffs. Absent some evidence that a defendant actually knew of a defective condition and chose to ignore it, plaintiffs must present evidence as to how the defective condition arrived on the floor and how long it existed. Often some plaintiffs will state that the “spill” was dirty or had track marks through it demonstrating that the condition existed for a sufficient period of time such that a diligent defendant would have seen it. Thus, when defending insureds against premises liability cases wherein plaintiffs allege injuries from spills and the like, it is crucial that cross-examinations of the plaintiff focus on these areas of inquiry. Also key is preparing the insured’s corporate designee for testimony with regard to the processes and procedures for inspecting for spills in order to demonstrate diligence in this regard.
In the case at bar, plaintiff’s testimony regarding notice of the “water” on the floor was not substantiated by the evidence. She admitted that she had walked several times in the area of the fall within minutes of the incident and did not see any substances on the floor. She admitted that she was unable to state with any degree of certainty the length of time in which the water was on the floor or how it got there. She further admitted that she did not see any water on the floor after the incident and only remembered the food on the floor that she spilled upon falling. The direct examination of the restaurant’s manager, revealed a routine for roving and conducting walk-throughs the restaurant at regular intervals and having two porters specifically assigned to monitor the area of the fall. The plaintiff's own testimony and the testimony of the restaurant's manager, supported an award in the defendant's favor.