mkc-9-8-article-picA wet substance on the floor of a retail store, a customer does not see the substance and slips and falls, and an injury results.  Liability for the store, right?  Not so fast.  In Virginia, in the absence of some affirmative conduct on the part of the store that caused the condition, the customer has to show that the store knew, or should have known by the exercise of reasonable diligence, of the defect or unsafe condition.

 In the case of Smith v. Sam’s East, Inc., a Virginia Federal Court found that Ms. Smith was unable to meet this burden when she slipped on a puddle of soft drink that was on the floor and cut her ankle on the bottom of a metal shopping cart.  The cause of the spilled soda was the deliberate puncturing of a shelved plastic Pepsi bottle by an adolescent boy customer.  He punctured the bottle approximately five minutes before Ms. Smith encountered the spill and fell.

Sam’s moved for summary judgment and argued that Plaintiff Smith presented no evidence that Sam’s had caused the spill, or that it had actual or constructive knowledge of the spill.  The Court ruled in Sam’s favor because Sam’s did not cause the unsafe condition; surveillance footage showed that the no Sam’s employee was in the area of the spill until Ms. Smith fell, so it did not have actual knowledge of the unsafe condition; and, Sam’s would not be deemed to have constructive knowledge of the unsafe condition because the video footage showed that the condition only existed for five minutes prior to Plaintiff’s fall.  Under those facts, the Court found that Plaintiff could not meet its prima facie burden that Sam’s had actual or constructive knowledge of the dangerous condition, and ruled in Sam’s favor on summary judgment.  Plaintiff has noted an appeal of the ruling.

In Virginia premises liability cases, a plaintiff must do more than just show an unsafe condition and subsequent injury in order to prevail.  There is an affirmative requirement to show that the premises owner either created the unsafe condition, or that it had actual or constructive knowledge of the unsafe condition.  A premises owner can often use routine safety walks by store employees to check for spills or other aisle obstructions, along with the presence of video surveillance to protect itself from these types of claims.

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