Retailers constantly face challenges to their business, and litigation can be one. Retailers face potential liability from slip-and- fall litigation and should be aware of the duties they owe to customers and what measures should be taken to prevent the occurrence of any slip-and-fall, as well as measures that can be taken to ensure that defense counsel has the tools necessary to develop a successful defense in litigation.
Under traditional tort law, a retail store is said to owe customers a duty to exercise reasonable care. A retailer may be liable for an injury sustained by a customer when it knows of the hazardous condition prior to the customer’s fall. More common is when the retailer is said to have “constructive knowledge” of the hazardous condition. A customer traditionally had the burden of proof to show that the hazardous condition was present for enough time that the retailer should have discovered it before the slip-and-fall.
Indiana is one of many jurisdictions to part from traditional tort law to follow what is called the “mode of operation” doctrine. Under this approach, retailers are charged with knowledge that their method of operation may result in customers dropping objects onto the ground as they browse through the store, and have a duty to take reasonable care to protect customers from such risks. The law imputes this knowledge to a retailer as a quid pro quo for the economic advantage afforded to the retailer through mass merchandising. Practically speaking, after the customer proves that he slipped and fell on a hazardous conduction on the premises, it is the retailer’s burden to show that it did not know of the hazardous condition and could not have discovered it through the exercise of reasonable care.
As recently as June of this year, the Southern District of Indiana applied the “mode of operation” doctrine, and clarified what evidence is sufficient to prove that a retailer could not have discovered a hazardous condition. In Williams v. Meijer, Inc., 2013 WL 3146981, the court granted summary judgment in favor of Meijer, Inc. in a slip-and-fall case. In assessing whether Meijer had actual or constructive knowledge of a wet spot in an aisle in the freezer section of the store, the store presented evidence that one of its employees inspected the freezer section twelve minutes before the plaintiff’s fall and found no hazardous condition. With this undisputed fact, the court held that no reasonable jury could conclude that the wet spot had existed for such a length of time that it would have been discovered in the exercise of ordinary care, and granted Meijer summary judgment. In a similar case, the Northern District of Indiana granted summary judgment in favor of Wal-Mart Stores, Inc. when surveillance video showed that the hazardous condition (a spilled can of tomatoes) had been present on the store floor for not more than two minutes and ten seconds before the customer’s fall. Zalas v. Wal-Mart Stores, Inc., 2011 WL 3443832 (N.D. Ind. Aug. 8, 2011).
With the increasing adoption of the “mode of operation” doctrine by courts nationally, retailers should be aware of the duties they owe to customers and take appropriate measures to meet these duties and sufficiently document policies and procedures so that a retailer can present sufficient evidence to defend themselves in slip-and-fall cases, and prevail at the motion for summary judgment stage.
If you have any questions regarding Indiana's application of the "mode of operation" doctrine, or any other issue affecting retailer and hospitality liability, please contact one of the members of our Retail and Hospitality Practice Group.
