In July of 2008, the United States District Court for the Western District of Kentucky heard a case involving a slip and fall accident. (See Neville v. Wal-Mart Stores East, L.P., 2008 WL 2858883 (W.D.Ky.)). In Neville, Ms. Neville was shopping in a Wal-Mart with a friend. Id. She walked by a display of trailer hitches near a display of spark plugs that they were looking for. Id. While she was looking for a spark plug, she heard a ‘boom’ behind her followed immediately by a ‘cling.’ Id. She turned around and saw that her foot was bleeding and that a trailer hitch was on the floor next to her foot. Id. Ms. Neville noticed that a young blond female Wal-Mart employee was working near the hitch display. Id. Ms. Neville claims this employee went up to her boss and kept saying she was sorry and he said to hush and we’ll talk about it later. Id. Ms. Neville went to the hospital and received stitches. Id. And still a year after the accident she still felt pain in her foot and was diagnosed with Achilles tendonitis and other ailments. Id. Thus, Ms. Neville sued Wal-Mart.
Wal-Mart filed a motion for summary judgment asking the Court to dismiss the case. The Court looked at what makes a negligence case. A plaintiff must prove duty, breach, and proximate cause and that the injuries resulted in damages. Id.
Under a relatively new case, Laneir,(cite omitted), the Kentucky Supreme Court modified the burden of proof that is needed in a slip and fall premises liability case where the foreign substance on the premises was not brought about and/or caused by the proprietor. The business invitee has the initial burden of proving that: 1) He or she had an encounter with a foreign substance or other dangerous condition on the business premises, 2) the encounter was a substantial factor in causing the accident and the customer’s injuries, and 3) by reason of the presence of the substance or condition, the business premises were not in a reasonably safe condition for the use of business invitees. Once the plaintiff/invitee establishes this initial burden, which creates a rebuttable presumption of negligence sufficient to avoid summary judgment, the burden shifts to the defendant/proprietor who must prove, by a greater weight of the evidence, the absence of negligence through the exercise of reasonable care.
The Plaintiff in this case, Ms. Neville, wanted this Court to apply the new ‘slip and fall’ burden to a “falling merchandise” type case. Id. This Court noted that a “slip and fall results from a static and readily identifiable dangerous condition (i.e. a spilled substance), a falling merchandise injury results from a dynamic event (here a falling trailer hitch) from a display whose general safety is not challenged. Id. The Court rationalized that “when a person slips on a foreign substance on a floor, the very presence of that substance establishes that a dangerous condition existed prior to the fall. Lanier simply shifts the burden to the defendant to explain why it did not have adequate notice to remedy the dangerous situation (the foreign subsistence on the floor in slip and fall cases). Implicit in this calculus is the recognition that the condition was not only dangerous, but also was of the type that is at least potentially discoverable by the exercise of reasonable care-in the case of liquid substance on the floor, it is visible and discoverable to an employee looking for such a danger. Neither of these assumptions fits so precisely in our circumstances.” Id.
In the case at hand, both parties agreed that the trailer hitch would not have fallen had it been properly shelved. Thus it left a question as to whether or not the hitch was stored or left in a dangerous condition which may or may not have been discoverable? Thus, the Court concluded that the Plaintiff bore the burden of establishing that a discoverable dangerous condition preceded the trailer hitch striking her. Id.
But, the Court did not dismiss the case. Based on all the evidence, the Court held that it was possible that a jury could find the store owner liable for the accident. Id. Though the evidence was not that strong, it was not totally lacking. Id.
If you have been the subject of a Louisville merchandise falling case, please call and speak to a Louisville merchandise falling lawyer at the Law Offices of Andrew Alitowski at 888-ASK-ANDREW (888-275-2637) or contact us online. We are available 24 hours a day, 7 days a week.
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