Using risk management to avoid slip and fall accidents.

With the continual increase in the cost of liability insurance borne by industry showing no signs of decline, managers of businesses of all types and especially those in the insurance industry have been looking for methods of controlling these escalating costs. Of particular concern has been liability imposed on retailers and other firms for injuries suffered by customers/ visitors who either slipped and fell on the premises, outside in the parking lot, or had display items fall on them or trip them. In fact, such slip-and-fall incidents make up the largest percentage of suits filed against businesses.

One method developed to control liability has been on-site risk management analysis conducted by the insurer, another third party, or the store management. After a careful review of the policies and procedures of the store relative to identifying sources of potential harm, assignment of maintenance responsibility for various aisles and business areas, development of clean-up procedures, and requiring periodic inspections, the store will minimize accidents leading to customer injuries and should be in a better posture to successfully defend a customer's suit for injuries suffered due to a fall in a business establishment or on a firm's property. Some states have even enacted legislation to give retailers evidentiary help in defending against such suits. At the very least, such an analysis should alert management to potential danger spots and minimize monetary losses related to the injury of customers.

To deal effectively with the three types of slip-and-fall incidents leading to suits require that managers have an understanding of case law and respond by preparing appropriate policies to minimize their occurrence. The immense monetary losses arising from injuries due to slip-and-fall accidents can no longer be ignored by business managers.

I. SLIP-AND-FALL INSIDE THE PREMISES

More often than not, slip-and-fall events involve situations where a customer or other visitor enters an establishment and slips causing injury to that individual. Such accidents can be attributable to many causes including wet spots from blown or tracked rain, broken or leaking pipes, or spilled liquids. Slippery spots from dropped fruits and vegetables and other foreign objects on a floor are another cause of concern.

To minimize such slip and fall accidents it is imperative that a store assign the responsibility of monitoring various areas within the store to specific individuals. These individuals should be trained to provide regular, periodic inspections of these areas and be provided with adequate supplies or assistance to eliminate the danger. There have been suits where the assignment of such responsibility and the providing of hazardous condition monitoring have appropriately minimized or eliminated a store's legal vulnerability.

In Thompson v. Economy Super Marts, Inc., a customer, Ms. Thompson, picked up a watermelon in the produce section of defendant store and began walking through the produce aisle toward the check-out. She purportedly slipped and fell on a lettuce leaf and some water which were on the floor. The lettuce leaf was described as brown and dirty. The fruit and vegetables in the produce aisle were normally kept on ice. The assistant manager was assigned to keep the store free of debris.

The assistant manager testified at the trial that the produce section required constant surveillance but that no one employee was specifically charged with monitoring that section. All employees had a duty to keep an eye on the entire store. The employees on duty at the time of the accident testified that they did not see a lettuce leaf on the floor following the accident. The jury awarded $12,974.96 with 55% contributory negligence on Ms. Thompson. The trial judge granted the store's motion for judgment not withstanding the verdict. On appeal, the appellate court affirmed the trial judge holding that the customer had presented no evidence that the store had actual or constructive notice of the leaf and water for a sufficient length of time that its presence would or should have been discovered by store employees. In other words, the court noted that the store had been providing surveillance of the produce area deemed adequate to assure a customer's safety.

In Buehler v. Alpha Beta Company, an 84 year old woman alleged that she slipped and fell on an unknown substance or improperly waxed floor thereby breaking her hip. A store patron standing in the same aisle about five feet from Ms. Buehler said that she just slipped while walking toward the front of the store. She was not using a cart and was carrying several items in her hands. The trial court granted the store's motion for summary judgment and the customer appealed. The appeals court affirmed the trial court holding that even assuming that the store's floor was poorly waxed, the defendant could not be held liable in light of the eyewitness' uncontroverted deposition testimony that the floor was not slippery and the customer's own deposition that she had no idea as to what caused her to fall.

II. DISPLAYS OR IMPROPERLY STACKED GOODS CAUSING INJURY

Injuries incurred by a customer can be caused by an improperly designed display rack or an improperly arranged presentation of goods for customer self-service. In these instances, such displays have been shown to be sources of customer injury and potential liability. Providing proper training for the safe preparation of displays and inventory stocking is an important risk minimization activity. Such employee training should allow for periodic retraining emphasizing new developments in the safe handling and displaying of merchandise. Without such training stores expose themselves unnecessarily to customer and employee suits arising from injuries related to the improper display and handling of merchandise.

In Papastathis v. Beall, the customer entered the defendant's store in Phoenix. He went to the cooler and bent down to make a selection. At the same time, an employee was loading soft drink cans into the cooler's soft drink rack from inside the cooler. A can fell from the rack and hit Mr. Papastathis on the back of his head. At the time, unknown to Mr. Papastathis, he had a pre-existing weakness in the arteries of his brain called an aneurysm. During the next fifteen months he complained of double vision, drooping right eye, dizziness, ringing in his ears, and headaches. He later died from a ruptured intracranial aneurysm. A jury awarded his widow $500,000. On appeal by the store the Arizona appeals court held that Southland Corporation, the franchisor, was liable for the negligent selection, recommendation and inspection of the dispenser rack. Further, evidence of alternative rack designs which might have been safer than those used by the store was relevant to the franchisor's negligence and could properly be presented to the jury for damages.

In Valdes v. Faby Enterprises, Inc., the customer entered the store to purchase some cold beer. He opened the door of the cooler and was struck on the head by boxes of beer which had been stacked on top of the cooler. The jury awarded Mr. Valdes $260,000 for his injuries but found him 70% liable and the store 30% liable under Florida's comparative negligence law. On motion of the defendant store, the trial judge granted its motion for a directed verdict. On appeal by Mr. Valdes, the appellate court reversed the directed motion and remanded the case to the trial court with directions to enter a judgment for the customer in the full amount of the damages. The appeals court held that whether the store had been negligent in stacking cases of beer on top of the beer cooler was a question of fact for the jury. Further, the court held that it was an error of the trial judge to refuse to grant the customer's motion for a directed verdict on comparative negligence because there was no evidence presented of any negligent conduct on the part of Mr. Valdes. The cases of beer had been stacked precipitously by store employees and the customer's actions were not seen as contributory negligence.

III. SLIP AND FALL OUTSIDE THE PREMISES

While the courts generally have held that the store owner owes no duty to its customers to guard against naturally occurring hazards such as snow and ice outside the store, man-made hazards which the store could have prevented or cleaned up are sources of potential liability.

In assigning responsibility for maintenance and regular inspection of areas of the business it is important not to overlook the areas outside of the store. Poorly maintained parking lots, loading docks, and other open-access areas are an invitation to customer injuries and suits. It is important that these areas be periodically inspected for foreign debris and other hazards that could cause injury. Again, employees should be regularly monitoring these areas and provide quick removal of hazards to eliminate or minimize risks.

In Schaeffer v. Woodhead d/b/a Napa Auto Farm & Industry the customer went to the store on an errand for her employer. The weather was cold, but it was not snowing. There was a considerable amount of compact snow and ice on the roads as well as on the gravel parking lot in front of the store. Schaeffer parked her employer's vehicle in the lot, went into the store to carry out business, and on returning to the vehicle, slipped and fell injuring her back. She sued the store for negligence. The store moved for summary judgment attaching a sworn affidavit stating that because the parking lot had a gravel base no attempt was made to plow or remove snow or ice when it accumulated, and that no store employee had altered the snow in the lot. Based on the affidavit the trial court granted the motion and the plaintiff appealed. The Washington appeals court affirmed the trial court holding that the state of Washington follows the rule that shopkeepers are not liable for natural conditions based upon the fact that the danger is obvious and storekeepers can expect a business customer to discover natural conditions and to take steps to protect him/herself.

In Forrest v. Schnucks Markets, Inc., the customer slipped and fell on a plastic shopping bag supplied by the defendant store in defendant's parking lot. The trial court granted the store's motion for summary judgment and the customer appealed.

The appeals court reversed and remanded to the trial court holding that when a store provides plastic bags for its customers and the bags are discarded and left in the parking lot, the result is a foreseeable condition by the store and therefore the store has a duty to use due care to protect its customers from those dangers. The store should have been providing surveillance of the lot and taking regular, effective steps to eliminate such hazards under its control.

RECOMMENDATIONS

It is imperative that firms implement and follow effective risk management techniques to reduce the probability of customer injury and resulting suits. The following is recommended to minimize a firm's potential liability from slip-and-fall accidents and as a method of controlling its liability insurance costs.

* Develop an atmosphere of liability-cost containment. Work to instill in your employees the necessity of monitoring the firm's property and the necessity of minimizing/eliminating potential hazards.

* Assign specific store personnel the duty of periodic inspection of the aisles for debris, breakage, and improperly arranged displays of goods. Employees should be trained to recognize and eliminate dangerous in-store situations.

* Time intervals between inspections need to be established and followed. Depending on the situation, the established interval may need to be shortened. For instance, a store may find that an interval of 30 minutes may normally be appropriate for monitoring its entrances and exits. However, on rainy days, a cleanup person with mop and bucket may need to constantly monitor and work to eliminate water accumulation hazards at entrances and exits.

* Enlist the aid of your liability insurance carrier in your efforts to control costs. Most insurance carriers can and regularly do provide risk management assistance to clients.

* In designing ramps for handicap access, insure that ramps meet the requirements of the Americans with Disabilities Act of 1991. Hand rails should be installed at both wheelchair and pedestrian height.

* Firms need to take a proactive stance to protect their rights. According to a statutory search by the authors, it appears that most states have not yet adopted a statute defining a merchant and customer's burden of proof duties in a negligence suit. Merchants need to ask their state associations, Chambers of Commerce, and state legislatures to support a statute similar to Louisiana's R.S. 9:2800.6 (Burden of Proof in Claims Against Merchants).

The three types of slip-and-fall situations mentioned above, some of which were won by the customer and some by the defendant store are indicative of suits filed every day in the United States. Recommendations to help successfully defend a firm against such suits based on various court decisions need to be heeded. It should be mentioned that effective risk management is not just for the purpose of minimizing suits by customers. No store manager/ employee should knowingly allow a customer into a hazardous situation regardless of the possibility of a suit. Suggestions presented here should be construed as a starting point for individuals investigating their firm's risk situation. They should not be construed as legal advice. Every firm should develop such policies and procedures with the advice of its legal counsel since laws and court findings do vary among the states.

C. Definitions:

(1) "Constructive notice" means the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.

(2) "Merchant" means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business.

D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.

Notes:

Louisiana R.S. 9:2800.6--Burden Of Proof In Claims Against Merchants

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.

B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises the claimant shall have the burden of proving, and in addition to all other elements of his cause of action, that:

(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable;

(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence; and

(3) the merchant failed to exercise reasonable care.

References

Buehler v. Alpha Beta Company, 274 Cal.Rptr. 14 (Cal.App. 2Dist, 1990)

Burden of Proof In Claims Against Merchants, Louisiana R.S. 9:2800.5

Forrest v. Schnucks Markets, Inc., 791 S.W.2d 447 (Mo.App. ED2, 1990)

Papastathis v. Beall, 723 P.2d 97 (Ariz.App. 2Div., 1986)

Schaeffer v. Woodhead, 821 P.2d 75 (Wash.App. 3Div., 1991)

Thompson v. Economy Super Marts, Inc., 581 N.E.2d 885 (Ill.App. 3Dist, 1991)

Valdes v. Faby Enterprises, Inc., 483 So.2d 65 (Fla.App. 3Dist., 1986) rev. dismissed 491 So.2d 278 (Fla. 1989)

John W. Yeargain is a Professor of Management, specializing in Business Law at Southeastern Louisiana University in Hammond, Louisiana.

Michael C. Budden is Dean of Business and a Professor of Marketing at Auburn University at Montgomery, Montgomery, Alabama.