Ortega v. Kmart Corporation

• Decision Date: 20 December 2001
• Docket Number: No. S091888.,S091888.
• Court: California Supreme Court
• Parties: Richard M. ORTEGA, Plaintiff and Respondent, v. KMART CORPORATION, Defendant and Appellant.

114 Cal.Rptr.2d 470

26 Cal.4th 1200

36 P.3d 11

Richard M. ORTEGA, Plaintiff and Respondent, v. KMART CORPORATION, Defendant and Appellant.

No. S091888.

Supreme Court of California.

December 20, 2001.

Law Offices of Diane Goldman, Diane Goldman; Sedgwick, Detert, Moran & Arnold, Frederick D. Baker, San Francisco, and Katharine Demgen for Defendant and Appellant.

Kelly, Herlihy & Klein, Jonathan Allan Klein and Rachel Holzberg for California Retailers Association and the National Association of Chain Drug Stores as Amici

Curiae on behalf of Defendant and Appellant.

Knox, Lemmon & Anapolsky and Thomas A. Knox, Sacramento, for California Retailers Association as Amicus Curiae on behalf of Defendant and Appellant.

Law Office of Richard A. Lense and Richard A. Lense for Plaintiff and Respondent.

Ghitterman & Ghitterman, Allan S. Ghitterman and Russell R. Ghitterman, Santa Barbara, as Amicus Curiae on behalf of Plaintiff and Respondent.

CHIN, J.

We granted review to decide under what circumstances, if any, a store owner may be liable for injuries to a business invitee from a dangerous condition on its premises where the evidence fails to show how long the dangerous condition existed prior to the injury. The cases require that an owner must have actual or constructive notice of the dangerous condition before incurring liability. (Hatfield v. Levy Brothers (1941) 18 Cal.2d 798, 806, 117 P.2d 841 (Hatfield); Girvetz v. Boys' Market (1949) 91 Cal.App.2d 827, 829, 206 P.2d 6 (Girvetz).) The plaintiff has the burden to prove the owner had actual or constructive notice of the defect in sufficient time to correct it. (Louie v. Hagstrom's Food Stores (1947) 81 Cal.App.2d 601, 606, 184 P.2d 708 (Louie).) The question here is: If the plaintiff has no evidence of the source of the dangerous condition or the length of time it existed, may the plaintiff rely solely on the owner's failure to inspect the premises within a reasonable period of time in order to establish an inference that the defective condition existed long enough for a reasonable person exercising ordinary care to have discovered it? We conclude that evidence of the owner's failure to inspect the premises within a reasonable period of time is sufficient to allow an inference that the condition was on the floor long enough to give the owner the opportunity to discover and remedy it. (See Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 2 Cal.Rptr. 146, 348 P.2d 696 (Bridgman).)¹

BACKGROUND

Richard M. Ortega (plaintiff) was shopping at the Torrance Kmart store (Kmart) when he slipped on a puddle of milk on the floor adjacent to the refrigerator and suffered significant injuries to his knee, including ligament tears. Less than a year later, plaintiff sued Kmart for personal injuries. At trial, plaintiff testified he did not notice whether the puddled milk was fresh or odorous, warm or cold. He could not present evidence showing how long the milk had been on the floor. Nonetheless, plaintiff claimed that because the evidence showed Kmart had not inspected the premises in a reasonable period of time prior to the accident, a jury could infer the puddle was on the floor long enough for Kmart employees to have discovered and remedied it.

Plaintiffs maintenance expert conceded he found no direct evidence indicating how long the puddle had been on the floor before plaintiffs fall. He did opine that stores like Kmart should implement three basic management tools relevant to floor maintenance: (1) accountability (the name of the person who performs the inspections should be identified); (2) frequency (management should know how often the floor is inspected); and (3) verification (a written record or some other form of verification should be presented to management).

Kmart's former store manager testified that although the store keeps no written inspection records, all Kmart employees are trained to look for and clean up any spills or other hazards. He also stated that several employees work in the pantry aisles next to the milk refrigerator, and that every 15 to 30 minutes an employee usually walked the aisle where plaintiff slipped. When asked whether the milk could have been on the floor for five minutes or two hours, the manager testified that in light of the staffing, it would be "hard for something [to] be on the floor for more than 15 or 30 minutes." He did admit, however, that the milk could have been on the floor for as long as two hours. On the day of the accident, the manager testified that management would not have had any idea if the aisle where the accident occurred was inspected at any time during that day. Kmart claimed that plaintiff failed to carry his burden of showing the milk puddle existed for a sufficient time to establish constructive notice to the store. (See Girvetz, supra, 91 Cal.App.2d at p. 829, 206 P.2d 6.)

The jury returned a verdict in plaintiffs favor, and awarded him $47,200 in damages. Kmart appealed.

The Court of Appeal affirmed the judgment. In so doing, it "looked at a plethora of similar cases" and concluded that plaintiff could be relieved of his burden of showing how long the milk remained on the floor if he demonstrated the site had not been inspected within a reasonable period of time.

DISCUSSION

1. Establishing liability

It is well established in California that although a store owner is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe. (Girvetz, supra, 91 Cal. App.2d at p. 829, 206 P.2d 6; Rest.2d Torts, § 332.) In order to establish liability on a negligence theory, a plaintiff must prove duty, breach, causation and damages. (Rest.2d Torts, § 281; Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 426, 20 Cal.Rptr.2d 97.) A plaintiff meets the causation element by showing that (1) the defendant's breach of its duty to exercise ordinary care was a substantial factor in bringing about plaintiffs harm, and (2) there is no rule of law relieving the defendant of liability. (Nola M., supra, 16 Cal.App.4th at p. 427, 20 Cal.Rptr.2d 97.) These are factual questions for the jury to decide, except in cases in which the facts as to causation are undisputed. (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207, 223 Cal.Rptr. 645.)

A store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved. (See Bridgman, supra, 53 Cal.2d at p. 448,2 Cal.Rptr. 146,348 P.2d 696.) If the owner operates a self-service grocery store, where customers are invited to inspect, remove, and replace goods on shelves, "the exercise of ordinary care may require the owner to take greater precautions and make more frequent inspections than would otherwise be needed to safeguard against the possibility that such a customer may create a dangerous condition by disarranging the merchandise" and creating potentially hazardous conditions. (Ibid.) "However, the basic principle to be followed in all these situations is that the owner must use the care required of a reasonably prudent [person] acting under the same circumstances." (Ibid.)

"On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant." (Prosser & Keeton, Torts (5th ed.1984) § 41, p. 269, fns. omitted.) In the context of a business owner's liability to a customer or invitee, speculation and conjecture with respect to how long a dangerous condition has existed are insufficient to satisfy a plaintiffs burden. (Perez v. Oiv (1962) 200 Cal.App.2d 559, 561, 19 Cal.Rptr. 372 (Perez); Girvetz, supra, 91 Cal.App.2d at p. 831, 206 P.2d 6.) In other words, "`[p]roof of negligence in the air, so to speak, will not do.'" (Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339, 341 .)

Because the owner is not the insurer of the visitor's personal safety (see Girvetz, supra, 91 Cal.App.2d at p. 829, 206 P.2d 6), the owner's actual or constructive knowledge of the dangerous condition is a key to establishing its liability. Although the owner's lack of knowledge is not a defense, "[t]o impose liability for injuries suffered by an invitee due to [a] defective condition of the premises, the owner or occupier `must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises....'" (Ibid., quoting Hatfield, supra, 18 Cal.2d at p. 806, 117 P.2d 841.)

Courts have also held that where the plaintiff relies on the failure to correct a dangerous condition to prove the owner's negligence, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it. (Louie, supra, 81 Cal.App.2d at p. 607, 184 P.2d 708.) The courts' reasoning is that if the burden of proving lack of notice were placed on the owner in a slip-and-fall case, where the source of the dangerous condition or the length of time it existed cannot be shown, failure to meet the burden would require a finding of liability, effectively rendering the owner an insurer of the safety of those who enter the premises. (McKellar v. Pendergast (1945) 68 Cal. App.2d 485, 489, 156 P.2d 950.) Several courts believe that shifting the burden to the defendant would,...