PRODUCT & PREMISES LIABILITY
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
Wagoner v. Dollar General Corp., 955 F. Supp. 2d 1220 (D. Kan. 2013).
This case addresses the following issue:
Can a property owner ever be liable for a dangerous condition of the property if the owner has no knowledge of the condition?
Under Kansas law, a property owner can be liable for injuries caused by dangerous defects or conditions of the property. Id. at 1224. However, the general rule is that the property owner must know of the condition, or would have known of the condition through the “exercise of reasonable care.” Id. This case asked if there was ever a scenario in which a defect can occur, then shortly afterwards cause an injury, creating liability for the property owner. Id. Ultimately, the court held that such liability could exist if “it was reasonably foreseeable a dangerous condition would regularly occur due to the way the store was operated” and the store failed to take reasonable steps to discover and correct that condition; however, in this case, this exception did not apply. Id. at 1225-27.
Plaintiff was a customer at Defendant’s store in Park City. Id. at 1223. Roughly five minutes prior to Plaintiff arriving at the store, another customer inadvertently kicked the corner of a floor mat at the entrance of the store. Id. This caused the corner to curl over on itself. Id. As Plaintiff entered, she was looking forward and stepped on the corner of the mat that was folded over itself. Id. As Plaintiff lifted her other foot to step forward, she tripped over the rolled mat that was being held down by her planted foot. Id. Plaintiff suffered a broken arm and other injuries from this fall. Id.
The court began by noting the general rule that notice of the condition or defect is necessary to establish liability. Id. at 1224. However, an exception exists under the “mode of operation” rule. Id. at 1225. This rule creates liability, even without notice of the defect, if two conditions are met. Id. First, the property owner “adopted a mode of operation where a patron’s carelessness should be anticipated.” Id. Basically, a guest of the property is likely to create a dangerous condition based upon how the property is generally used. Id. Second, the property owner fails to use “reasonable measures commensurate with the risk involved” to discover and correct the danger. Id. This means that the multitude of the danger controls how active the property owner must be in fighting the condition. Id.
However, this exception requires that a specific policy, custom, or practice by identified—the “mode of operation.” Id. at 1226. The plaintiff can’t simply note that the circumstances which led to the creation of the condition were foreseeable. Id. The condition or danger must be the product of the practice, such as allowing food and drink to be consumed on the sales floor, resulting in a spilled drink causing injury. Id. What a plaintiff cannot do—and what was fatal in this case—was argue that the property owner “failed to adopt a mode of operation for dealing with foreseeable risks created by patrons.” Id. Without a specific policy being identified, Plaintiff could not excuse lack of notice of the condition, and her claim for negligence failed. Id. at 1227.