Premises possessors have a duty to provide a reasonably safe place for visitors and are liable for injury resulting from an unsafe condition caused by their employees. They are also liable for injury due to an unsafe condition caused by a third party where the condition is or should have been known to the possessor. If the defect is not caused by the defendant, plaintiffs must prove defendant had "notice" in order to prevail.

In stores, restaurants, and other businesses, items fall to the floor for a number of reasons. Often, no one knows how something ended up on the floor, but its presence creates a fall hazard. If a visitor slips and falls on an errant grape, pepperoni, or handful of marbles, she must prove that the possessor knew or should have known of the problem in order to recover for her injuries. The possessor "knew" of the condition if he created the spill or if he was aware of it before the accident. If the source of the spill is unknown, the visitor must prove that the possessor had "constructive notice" or "should have known" of the condition.

A plaintiff can prove constructive notice if the condition was a recurring one or if circumstantial evidence establishes that the condition existed for a sufficient period of time that it should have been known.

In Clark v Kmart, 465 Mich 416; 634 NW2d 347 (2001), Ms. Clark slipped on loose grapes in a closed check-out lane in a Super Kmart. There was no direct evidence of how or when the grapes fell on the floor, or that Kmart was aware of the spill. The check-out lane was closed an hour before Ms. Clark arrived at the store. Mr. Clark observed footprints made by "some big, thick, rubber-soled shoes" leading away from the crushed grapes. Mr. Clark’s testimony was offered to establish that the grapes had been present long enough for someone else to walk through them before Ms. Clark slipped and fell.

The Michigan Supreme Court found that there was sufficient circumstantial evidence for the jury to infer that the grapes likely were dropped when a customer was in the check-out lane when it was last open, over an hour before the accident. From this inference, the jury could conclude that Kmart’s employees should have noticed the grapes before the lane was closed and should have removed the grapes and cleaned the floor.

Secrest, Wardle Notes:

If a slip and fall accident occurs, immediately document the condition of the culprit food item and the area of the accident. Photographs are preferred if a camera is available. Accurate information about the condition of the scene can establish the absence of evidence necessary for the plaintiff to defeat a notice defense (i.e., no footprints through the grapes).

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.