Jackson v. K-Mart Corp.

• Decision Date: 30 October 1992
• Docket Number: K-MART,No. 66742,66742
• Citation: 251 Kan. 700,840 P.2d 463
• Parties: Brigitte JACKSON, Appellant, v.CORPORATION, Appellee.
• Court: Kansas Supreme Court

Page 463

840 P.2d 463

251 Kan. 700

Brigitte JACKSON, Appellant, v. K-MART CORPORATION, Appellee.

No. 66742.

Supreme Court of Kansas.

Oct. 30, 1992.

Syllabus by the Court

1. The proprietor of a store is not an insurer of the safety of the store's customers. Proof of a dangerous condition on the proprietor's premises usually does not render the proprietor liable; the fact that an invitee slips and falls does not raise an inference of negligence.

2. The mode-of-operation rule generally allows a plaintiff in a slip-and-fall case to recover without showing the proprietor's actual or constructive knowledge of a dangerous condition if the plaintiff shows the proprietor adopted a mode of operation where a patron's carelessness should be anticipated and the proprietor fails to use reasonable measures commensurate with the risk involved to discover the condition and remove it.

3. The mode-of-operation rule only applies in slip-and-fall cases where the proprietor can reasonably foresee a situation where dangerous conditions will regularly arise.

4. Proprietors are liable in mode-of-operation cases only if they adopted a mode of operation which made recurring dangerous conditions reasonably foreseeable and failed to exercise reasonable care under the circumstances.

Henry O. Boaten of Law Offices of Henry O. Boaten, Topeka, argued the cause and was on the briefs for appellant.

Barry E. Warren of Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, argued the cause, and Bradley S. Russell, of the same firm, was with him on the briefs for appellee.

ALLEGRUCCI, Judge:

The plaintiff, Brigitte Jackson, brought this action against K-Mart Corporation, defendant, (K-Mart) for personal injuries sustained when she slipped and fell in the clothing section of a K-Mart store in Manhattan, Kansas.

She appealed the district court's granting of summary judgment for K-Mart on the grounds K-Mart did not have notice of the liquid spilled on the floor. The Court of Appeals reversed and remanded. Jackson v. K-Mart Corp., 16 Kan.App.2d 716, 828 P.2d 941 (1992). We granted K-Mart's petition for review.

The facts in this case are stated in the Court of Appeals opinion:

"Brigitte Jackson entered the K-Mart department store located in Manhattan, Kansas, as a business invitee for the purpose of shopping for children's clothing. While walking down an aisle in the children's clothing department, she slipped and fell near a round clothing rack. In the middle of the tile floor near the rack, there was an accumulation of a green liquid substance that was apparently avocado juice.

"Jackson did not see the spilled juice, did not know how it got there, and did not know how long it had been there. After her fall, an unidentified K-Mart employee found a partially full can of avocado juice near the spill and told Jackson that she apparently had slipped on the substance. Later, Jackson overheard an unidentified K-Mart customer say a woman had passed through the children's clothing department accompanied by a small child who was carrying a can of avocado juice. The customer surmised the child disposed of the can by placing it on the floor underneath the clothing rack.

"K-Mart operates an in-store cafeteria and allows cafeteria patrons to remove food and drink from the cafeteria area and consume it on the shopping floor. Jackson testified that K-Mart sells small cans of avocado juice in the cafeteria." 16 Kan.App.2d at 717-18, 828 P.2d 941.

We have reviewed the record and, with one exception, find the Court of Appeals' statement of the facts to be accurate and in accordance with the uncontroverted facts suggested by the parties. The one exception is the statement that a K-Mart employee "found a partially full can of avocado juice near the spill." 16 Kan.App.2d at 717, 828 P.2d 941. Neither party contended such a statement as an uncontroverted fact. It is uncontroverted that an unidentified K-Mart employee told Jackson that she had slipped on avocado juice. Furthermore, there appears to be no dispute that avocado juice was on the floor in the children's clothing section. K-Mart attached to its petition for review a statement from one of its employees completed more than two years after Jackson fell. The employee stated she "looked around and found a can of juice (with a Wal-Mart price tag on it) and some of it was on the floor." This statement is not part of the record on appeal, and therefore we will not consider it in determining this appeal.

The district court, in granting summary judgment in favor of K-Mart, stated in part:

"In reviewing the evidence in the discovery record, the plaintiff has not established that K-Mart had actual notice that the spill occurred nor has the plaintiff produced evidence suggesting constructive notice based upon the length of time the spill was in existence. There is no evidence in the record to indicate how long the spill was in existence.

....

"It is the general rule in Kansas that when a customer is injured as the result of a fall from a dangerous condition not created by the proprietor, but traceable to persons other than those for whom the proprietor is responsible, proof that the proprietor was negligent with respect to the floor condition requires a showing that he had actual notice thereof or that the condition existed for such a length of time that, in the exercise of ordinary care, he should have known of it.

....

"This Court FINDS that plaintiff has not established that the defendant had actual notice regarding this spill on the floor and further, there is no competent evidence in the record to establish that the defendant had constructive notice of this condition. Based upon the principles set forth in the cases heretofore cited, the Court concludes that the evidence is insufficient to sustain plaintiff's cause of action as a matter of law."

The Court of Appeals reversed because it adopted the mode-of-operation rule, which allows a customer injured due to a condition inherent in the way the store is operated to recover without establishing that the proprietor had actual or constructive knowledge of the dangerous condition. The Court of Appeals remanded the case for determination of the factual question of whether the dangerous condition due to K-Mart's allowing customers to carry food and drink onto the shopping floor was reasonably foreseeable. If so, the additional question of whether reasonable care had been exercised needed to be determined.

The Court of Appeals acknowledged that Kansas appellate courts had not expressly adopted the mode-of-operation rule. 16 Kan.App.2d at 721, 828 P.2d 941. The Court of Appeals found several Kansas cases which it considered to be not inconsistent with a theory of liability based on the proprietor's mode of operation. 16 Kan.App.2d at 721-22, 828 P.2d 941 (citing Elrod v. Walls, Inc., 205 Kan. 808, 473 P.2d 12 [1970], and Little v. Butner, 186 Kan. 75, 348 P.2d [251 Kan. 703] 1022 [1960]. And the Court of Appeals expressed the conviction that "the mode-of-operation rule is a natural extension of Little and Elrod." 16 Kan.App.2d at 724, 828 P.2d 941.

In her brief in the Court of Appeals, Jackson took the position that this mode-of-operation rule already was a part of Kansas slip-and-fall law. She relied primarily on Little.

The governing principles stated in Little are as follows:

"[T]he liability of a proprietor of a business is predicated upon his superior knowledge concerning dangerous conditions and his failure to warn persons present of the risk. With respect to the necessity of proof that the proprietor of a store in which the plaintiff was injured in a fall on an interior floor had notice of the dangerous condition, the cases are divided into two classes: (1) injuries to customers caused by dangerous conditions negligently created or maintained by the proprietor or his servants [citations omitted], and (2) injuries due to dangerous conditions coming about through no active fault of the proprietor and not involving an instrumentality employed by him in the conduct of his business [citations omitted]. Under the former, the condition is one which is traceable to the proprietor's own act, that is, a condition created by him or under his authority, or is one in which he is shown to have taken action, and proof of notice is unnecessary. Under the latter, where the floor has been made dangerous by the presence of an obstacle which is traceable to persons for whom the proprietor is not responsible, absent a condition created by himself, proof that the proprietor was negligent with respect to the floor condition requires a showing that he had actual notice thereof, or that the condition existed for such a length of time that in the exercise of reasonable care he should have known of it [citations omitted]." 186 Kan. at 81, 348 P.2d 1022.

Mary Little's petition alleged that she fell while grocery shopping "because the floor was made slick and slippery by meat samples dropped on the floor after being handed out to patrons, customers and children by a demonstrator carrying on a food demonstration for Rath's meat products." 186 Kan. at 77, 348 P.2d 1022. Little further alleged that the grocery store and Rath had an agreement by which the demonstrator was employed, that the grocery store and Rath were aware of the likelihood that meat samples or parts of them would be dropped and that the demonstrator was aware that meat products actually were being dropped. 186 Kan. at 77-78, 348 P.2d 1022. The district court sustained the grocery store's and Rath's demurrers to Little's petition.

On appeal Little argued that, as a business invitee in a grocery store, she was entitled to assume that the floor was safe to walk on and that she could accomplish her shopping without injury. The grocery store and Rath contended that the "mere existence of debris on the floor where customers normally walk or are expected to walk, which was placed there by...