In June of 2007, the United States District Court for the Western District of Kentucky heard a case involving a slip and fall accident. (See Mitchell v. Flying J Inc., 2007 WL 1959174 (W.D.Ky.)). In Mitchell, Mr. Mitchell slipped and fell while in a store. Mr. Mitchell was a truck driver and entered to go to the restroom and get a cup of coffee. Id. He walked down an aisle towards the back and upon rounding the corner he slipped and fell in an area where a store employee had just finished mopping. Id. The employee claims that he put up 3 “Slippery When Wet” cone and had just finished mopping up a cup of spilled coffee. Id. A still photograph from a surveillance camera showed that only one cone. Id. Mr. Mitchell sued claiming that the store was liable because it created a wet and slippery condition on the floor of its store and it failed to adequately warn of this condition. 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. Id. 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.” Id. “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.” Id. “As such, though the plaintiff may meet his/her initial burden, the defendant may still succeed on a motion for summary judgment if the defendant can prove “that it exercised reasonable care in the maintenance of the premises under the circumstances.”” Id. This is the new law in all Louisville slip and fall cases that involve a foreign substance to a business invitee.
The defendant in Mitchell argued to the Court that it putting up a sign showed that it used reasonable care. Id. Also, that the “wet spot” was an open and obvious condition and therefore it did not owe the plaintiff any duty of care. Id. Under Lanier, the defendant’s burden is “to discover the foreseeable dangerous condition and to correct it or to warn customers of its existence.” Id. The Court reviewed the pictures and evidence and said that though it did discover the dangerous condition, it did not adequately warn in that the one cone that was placed was in the back and not in the area where Mr. Mitchell fell. Id.
As to the ‘Open and Obvious’ argument by defendant, the Court ruled that the defendant was misapplying the law and that it only applied to “hazards caused by the owner, not those caused by a foreign substance.” Id.
If you have been the subject of a Louisville slip and fall case, please call and speak to a Louisville slip and fall lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.
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