Slip and fall accident cases present a challenge in proving that the property owner knew or should have known about the hazard that caused the injury. The injured person always bears the burden of proof. The burden traditionally required the injured person to prove that the property owner either caused the hazardous condition, had actual notice or that the condition existed for such a length of time that the owner “should have” known.
For example, in a case of a grocery store customer slipping and falling on a grape, fracturing an arm, liability traditionally turned on the condition of the grape. Was it intact or crushed? Was it fresh or discolored? Did grocery cart tracks run through the grape? The more mangled the object, the more likely it was on the floor long enough to find store operators should have known and therefore liable.
Mode of Operation Approach
This challenge lessens somewhat by the mode of operation theory gaining acceptance in some courts.
Here, when a person slips and falls on something on the floor in the area of a store considered self-service, like the produce department, a rebuttable presumption of negligence arises. Store operators rebut the presumption if they demonstrate their operation exercised reasonable care.
The basic case must consist of proof of a reasonably foreseeable condition made likely by reason of the defendant’s mode of operation and the property owner’s failure to take adequate steps to prevent problems.
Massachusetts courts adopted this approach in Sheehan v. Roche Brothers Supermarkets, a case in which the injured person slipped and fell on a grape and conceded an inability to definitively establish how the grape came to be on the floor or how long it had been there. The court held the jury must determine whether the store exercised reasonable care in maintaining the premises in a safe condition equal to foreseeable risks.
Mode of Operation State by State
States following versions of the mode of operation law include Arizona, Connecticut, Florida, Hawaii, Idaho, Illinois, Indiana, Kansas, Massachusetts, Mississippi, Missouri, New Jersey, New Mexico, Oklahoma, Tennessee, Texas, Utah, Vermont, Washington, Wisconsin, and Wyoming.
New Hampshire law recognizes liability for “the owner’s failure to carry out his activities with reasonable care”. But New Hampshire courts do not shift the burden of proof to the property owner to show that its actions were reasonable. The burden remains with the injured person to demonstrate that the property owner’s actions were unreasonable.
Mode of Operation Limited Largely to Self-Serve Stores
Efforts to expand the mode of operations approach beyond the self-service area of stores have largely failed. One court refused to apply the idea to a claim against a tavern accused of over serving an intoxicated patron. The court observed that bars are not self-service, but that customers order drinks and are served by bartenders.
Courts have also refused to apply the mode of operations test in premises liability cases occurring in condominium complex, and in a hotel construction area. In a case brought by a customer who slipped and fell on slush in a supermarket entrance one court rejected the mode of operation approach because the allegedly dangerous condition was unrelated to the store’s self-service operations.
Ultimately those injured still always bear the burden of proof. The issue in slip and fall cases is what law applies and what facts are required to demonstrate liability. More on personal injury and negligence law.
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