To prove that a premises owner breached its duty of care to patrons in a negligence case, a patron must show that the owner created the hazard, the owner knew of the hazard but failed to warn or remove it, or the hazard existed long enough that the owner should have discovered it. In Ray v. Wal-Mart Stores, Inc., 2013-Ohio-2684, 993 N.E.2d 808 (4th Dist.), the Fourth District held that a patron, who brings a slip and fall claim against a premises owner, cannot rely on evidence of ownership alone to show the owner created the hazard and that evidence of how long the condition existed is necessary to show the owner should have known of the hazard. The court also reaffirmed the doctrine of res ipsa loquitur, which allows a jury to infer negligence and causation only if the owner has exclusive control over the danger.
This appeal arose out of a trip and fall that occurred at a Wal-Mart store in Marietta, Ohio. Marianne Ray and her husband sued Wal-Mart Stores, Inc. and Wal-Mart Real Estate Trust after Ms. Ray tripped and fell on a black produce crate that partially protruded into the shopping aisle from underneath a produce display table. The trial court concluded that Wal-Mart was not negligent and granted summary judgment for Wal-Mart.
Finding that Plaintiffs were relying on mere speculation to support their arguments, the appellate court affirmed the lower court’s decision. First, the court reaffirmed the retailer-friendly holding that ownership alone does not give rise to a reasonable inference that an employee, rather than any other person in the area, created the hazard. The only direct proof the court had before it was that a Wal-Mart employee carried the crate to the produce section, and someone did not return it to the storeroom. Once Wal-Mart filed a Motion for Summary Judgment, Plaintiffs had to respond with proper direct evidence that a Wal-Mart employee created the hazard by placing the crate in or near the hazardous location.
The court also refused to infer knowledge of the hazard simply because at least one Wal-Mart employee consistently monitored the produce area. The court held that a plaintiff must present direct evidence showing how long the hazard existed. Without such evidence, a court cannot conclude that a premises owner should have discovered the hazard and therefore breached a duty to warn patrons of the hazard or remove it.
Finally, the court reaffirmed the doctrine of res ipsa loquitur. For the doctrine to apply, a plaintiff must show that the hazard causing the injury was under the exclusive management and control of the defendant, and the injury would not have occurred in the ordinary course of events if ordinary care had been observed. The court refused to find that Wal-Mart had exclusive control over the crate since the public had access to it, and Plaintiffs failed to eliminate the possibility that a third party, like another customer, created the hazard. Because multiple inferences regarding how the crate ended up protruding from under the table could be drawn from the evidence, Plaintiffs could not rely on res ipsa loquitur to infer Wal-Mart’s negligence.
For a copy of this opinion, more information concerning its application, or any other question with respect to premises/business owner liability, please contact one of Reminger’s Retail and Hospitality Practice Group members.
