Lanier v. Wal-Mart Stores, Inc., 2000-SC-1089-DG.

• Decision Date: 20 March 2003
• Docket Number: No. 2000-SC-1089-DG.,2000-SC-1089-DG.
• Parties: Barbara Ruth LANIER, Appellant, v. WAL-MART STORES, INC., Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 431

99 S.W.3d 431

Barbara Ruth LANIER, Appellant, v. WAL-MART STORES, INC., Appellee.

No. 2000-SC-1089-DG.

Supreme Court of Kentucky.

March 20, 2003.

Michael L. Burman, Hopkinsville, for Appellant.

Virginia Hamilton Snell, Deborah H. Patterson, Wyatt, Tarrant & Combs, Louisville, Van Franklin Sims, Paducah, for Appellee.

Jeffery Roberts, Murray, for Amicus Curiae Kentucky Academy of Trial Attorneys.

COOPER, Justice.

This is an appeal from a summary judgment granted by the Christian Circuit Court to Appellee Wal-Mart Stores, Inc., on Appellant Barbara Ruth Lanier's claim for damages for injuries sustained when she slipped and fell in the Hopkinsville Wal-Mart Superstore. The Court of Appeals affirmed the summary judgment. We granted discretionary review to reconsider the allocation of the burden of proof in so-called "slip and fall" cases brought by business invitees who claim to have been injured as a result of slipping on a foreign substance while conducting business on commercial premises.

"Slip and fall" cases are traditionally based on the duty of care that a possessor of land owes to an invitee. "A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land." Restatement (Second) of Torts § 332(3) (A.L.I.1965).

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he:

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees; and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it; and

(c) fails to exercise reasonable care to protect them against the danger.

Id. at § 343. And, if the possessor of the property holds it open to the public for entry for his business purposes, he is subject to liability to members of the public while they are on the property for business purposes for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons if the possessor failed to exercise reasonable care to either: a) discover that such acts are being done or are likely to be done, or b) give warning adequate to enable the business visitors to avoid the harm, or otherwise protect them against it. Id. § 344.

Under these common law principles, the business owner has an affirmative duty to exercise reasonable care to inspect for hazardous conditions.

The occupier must not only use care not to injure the visitor by negligent activities, and warn him of hidden dangers known to the occupier, but he must also act reasonably to inspect the premises to discover possible dangerous conditions of which he does not know, and take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement or use of the property.

William Prosser and W. Page Keeton, Prosser and Keeton on Torts, § 61, at 425-26 (5th ed.1984). These general principles relate only to the duty owed by a business proprietor to his customers and not to the burden of proof as to whether that duty has been violated.

On February 18, 1997, Barbara Ruth Lanier, then age 73, entered the Wal-Mart Superstore in Hopkinsville, Kentucky, with her husband and her adult daughter. She and her daughter were shopping separately in the grocery department and her husband was shopping in the hardware department. At approximately 12:40 p.m., Mrs. Lanier momentarily parked her shopping cart in aisle 8 of the grocery department and turned to speak to friends. As she approached her friends, Lanier slipped in a "spot of [clear] liquid" that was on the floor. She lost her balance, bumped her head against the aisle shelves, and fell to the floor. Lanier admits that nothing impaired or impeded her view of the area, but that she simply did not notice the liquid on the floor in front of her.

Following discovery, Wal-Mart was granted summary judgment on the ground that Lanier could not prove negligence on the part of Wal-Mart in accordance with the burden of proof that presently exists under Kentucky law. That burden requires a plaintiff in this type of action to plead and prove, inter alia, that the proprietor or his employees either caused the foreign substance to be on the floor or, by the exercise of reasonable care, could have discovered it and either removed it or warned of its presence before the accident occurred.

Where the floor condition is one which is traceable to the possessor's own act — that is, a condition created by him or under his authority — or is a condition in connection with which the possessor is shown to have taken action, no proof of notice of the condition is necessary. However, where it is not shown that the condition was created by the possessor or under his authority, or is one about which he has taken action, then it is necessary to introduce sufficient proof by either direct evidence or circumstantial evidence that the condition existed a sufficient length of time prior to injury so that in the exercise of ordinary care, the possessor could have discovered it and either remedied it or given fair adequate warning of its existence to those who might be endangered by it.

Cumberland College v. Gaines, Ky., 432 S.W.2d 650, 652 (1968) (citing Kroger Co. v. Thompson, Ky., 432 S.W.2d 31 (1968)).

Lanier admits that she cannot prove how long the clear liquid substance was on the floor or that Wal-Mart's employees either spilled it there or had actual or constructive notice of its presence for a sufficient time to have removed it before she fell. In the face of this evidentiary insufficiency, Lanier is forced to contend — hi effect — that the spill should be presumed attributable to Wal-Mart because of its self-service method of retail sales. She observes that customers of all ages and abilities are encouraged by Wal-Mart to handle its merchandise and to move it about the store either by hand or by way of shopping baskets and carts that are provided by the store for that purpose. She argues that this method of self-service sales facilitates the creation of hazardous conditions which it is reasonably foreseeable will result in harm to innocent customers. She maintains that she has presented a submissible case that should, at a minimum, withstand a motion for summary judgment.

Wal-Mart's Hopkinsville Superstore contains more than two acres of self-service shopping areas consisting of a number of departments, including the grocery department where Lanier fell. There were fourteen management and eighty-four hourly employees on duty when the accident occurred. None claims to have seen Lanier fall, or to have discovered the clear liquid substance that caused her to fall, or to know what caused it to be on the floor where she fell. Two employees who observed the substance after Lanier fell speculated that it could have been shampoo that might have dripped from another customer's shopping cart. The exact nature and source of the substance was never established.

The inherent inequity in our present approach to the burden of proof in premises liability cases of this kind was discussed at length in the concurring opinion in Smith v. Wal-Mart Stores, Inc., Ky., 6 S.W.3d 829 (1999).

I would go further and address the onerous burden of proof placed on retail customers by cases such as Jones v. Jarvis, Ky., 437 S.W.2d 189 (1969). See also Wiggins v. Scruggs, Ky., 442 S.W.2d 581 (1969); Cumberland College v. Gaines, Ky., 432 S.W.2d 650 (1968); Nelson v. Midwest Mortgage Co., Ky., 426 S.W.2d 149 (1968); Lane v. Cardwell, Ky., 306 S.W.2d 290 (1957); Kroger Grocery & Baking Co. v. Spillman, 279 Ky. 366, 130 S.W.2d 786 (1939). These cases hold that the customer must prove that (1) the foreign substance/object was caused to be on the floor by the actions of the proprietor or his employees, or (2) the substance/object had been on the floor for a sufficient length of time that it should have been discovered and removed or warned of by the proprietor or his employees. Thus, absent proof that the proprietor or his employees caused the substance/object to be on the floor, the injured customer is faced with the daunting burden of proving how long the substance/object had been on the floor before the accident and whether that was a sufficient length of time for notice and correction to have taken place.

Presumably, had the customer had personal knowledge of the presence of the substance/object before the accident, he would not have stepped on it. Absent his own knowledge or some other inferential proof, such as the melted Icee in this case, the customer must either produce a witness who saw the substance or object on the floor prior to [the] accident or face either summary judgment or a directed verdict. Placing this virtually insurmountable burden of proof on the customer is inconsistent with the proposition that a proprietor of a place of business has a duty to keep his premises in a reasonably safe condition for normal use by his customers. Winn-Dixie Louisville, Inc. v. Smith, Ky., 372 S.W.2d 789 (1963); Layman v. Ben Snyder, Inc., Ky., 305 S.W.2d 319 (1957).

To balance the competing principles of notice versus duty, the issues of causation and notice should be treated not as elements of the customer's case, but as affirmative defenses of the proprietor. The customer would retain the burden of proving that there was a foreign substance/object on the floor and that such was a substantial factor in causing his accident and injury. Such proof that the premises were unsafe would avoid a summary judgment or directed verdict and shift to the proprietor the burden of proving that his employees did not cause the substance/object to be on the floor and that it had been there for an insufficient length of time to have been discovered and removed or warned...