Case law update: The “self-service” exception for a Slip and Fall injury at a Grocery Store
Posted Friday, July 6, 2018 by Christopher L. Thayer
In a December 2017 decision, the Washington State Court of Appeals, Division III, addressed a slip and fall personal injury claim where claimant fell in the shampoo aisle of a Walmart in Sunnyside. In McPherson v. Wal-Mart Stores, Inc., No. 34696-0-III (12/14/17), in an unpublished decision, the Court of Appeals affirmed the trial court’s dismissal of Ms. McPherson’s claim.
McPherson was injured after she slipped and fell in the shampoo aisle of a Walmart store in Sunnyside, Washington. The fall took place just after 5:00 p.m. After the incident, a store manager noted a shampoo bottle that had been knocked over on one of the shelves, resulting in some clear shampoo spilling down onto the floor. The spilled shampoo was deemed to be the cause of McPherson's fall. The store manager reviewed video surveillance of the aisle where McPherson fell. According to a declaration from the manager, the video showed a Walmart associate had checked the condition of the shampoo aisle between 4:04 p.m. to 4:06 p.m. Later, at 4:53 p.m., the manager observed two women handling bottles of shampoo in the area where McPherson's fall occurred. One of these women placed a shampoo bottle on the shelf in the same spot where the manager later discovered the shampoo bottle that spilled onto the floor. The manager declared that no one had notified Walmart of any spills in the shampoo aisle prior to McPherson's fall.
After the McPherson sued for negligence, Walmart moved for summary judgment. The trial court agreed with Walmart, ruling McPherson lacked evidence the store had actual or constructive notice of the shampoo spill and dismissed McPherson’s claim. McPherson appealed.
A patron of a retail establishment is considered a “business invitee” under Washington law. A property owner is only liable for a personal injury claim to a business invitee if the owner had “actual or constructive notice of an unsafe condition”. Ingersoll v. DeBartolo, Inc. ,123 Wn. 2d 649, 652 (1994). Courts have defined “constructive” notice:
Constructive notice arises where the condition 'has existed for such time as would have afforded [the proprietor] sufficient opportunity, in the exercise of ordinary care, to have made a proper inspection of the premises and to have removed the danger.'"
There is an exception, the so-called “self-service” exception which provides: a plaintiff need not prove actual or constructive notice “when the nature of the proprietor’s business and his methods of operation are such that the existence of unsafe conditions on the premises is reasonably foreseeable.” Pimental v. Roundup Co. 100 Wn. 2d 39, 49 (1983).
Pimentel's self-service exception has not been applied to all self-service areas where customers retrieve items from store shelves. Ingersoll, at 653. Most stores operate under a self-service model. Yet not all store areas present the types of readily apparent hazards discussed in Pimentel. A plaintiff who has sustained injuries in a self-service section of a store is not automatically excused from proving actual or constructive notice. To avoid having to prove actual notice, plaintiff must establish the defendant's particular self-service operation makes the existence of unsafe conditions reasonably foreseeable. Pimentel , at 49-50.
To meet Pimentel's self-service exception, a plaintiff must show the unsafe condition giving rise to injury was "continuous or foreseeably inherent in the nature of the business or mode of operation." Specific to the McPherson case, the Court held McPherson needed to provide evidence of: (1) the frequency of shampoo spills at the Sunnyside Walmart, (2) the number of store associates assigned to clean such spills, (3) the frequency of checks for spills by store associates, (4) the number of injuries caused by slip and fall incidents involving shampoo spills, and (5) whether Walmart encourages patrons to report spills, etc. The trial court found McPherson presented no evidence to support any of these elements, and the Court of Appeals agreed.
Although an unreported decision, meaning it has no precedential value, McPherson is nonetheless a good primer on this particular area of law: slip and fall injuries in retail stores. The body of law relating to actual or constructive notice has developed over the years and reflects the court systems efforts to balance the potential liability of a store owner vs. protecting the safety of its customers. Grocery stores in particular are susceptible to slippery liquids being spilled on the floor. Whether or not an establishment is liable for any injuries is going to be very fact-specific. Proving how long a particular spill was on the floor can be difficult if not impossible for a claimant.
If you have questions about premises liability for injuries, either as a property owner or potential claimant, please contact managing member Chris Thayer at (206) 805-1494 or CThayer@PivotalLawGroup.com.