PREMISE LIABILITY – An Expert’s Perspective ::::
By Alex J. Balian, MBA ::::
Since the scope of premise liability is quite broad, this article will focus on my personal experience as the plaintiff’s expert in Ortega v. K-Mart Corp (2001) 26 Cal 4th 1200 and the issues raised therein. This article will explore the application or implementation of safety principles present in any establishment which will lead to the legal determination of liability in premise cases. These are the principles that must be implemented to insure that there is reasonable care exercised on the premise. Such information then can be used to determine the issues of reasonable care and notice in analyzing premise liability. The subject will be presented from an expert’s approach, utilizing policies and procedures in light of industry standards.
There are three common principles that are the foundation of all maintenance programs. They are 1) accountability in the maintenance procedure, 2) frequency or interval of cleaning or inspection and 3) consistent verification. These three principles are necessary for an adequate maintenance procedure.
The first principle is accountability. A task is customarily assigned to a specific individual or individuals. This is basic in all management principles because it gives control over the individual or individuals assigned to the task. When no one is specifically assigned to a task, there is a loss of control by management, which raises the question as to whether the task was actually completed. When “everyone is responsible or “it’s everyone’s job to clean” the reality is that the task will not be done on a regular and consistent basis because it will not hold any particular person or persons accountable. It is, therefore, a standard to have accountability in a maintenance program in order to be adequate.
The next principle necessary for determining adequate procedures is the establishment of guidelines for the frequency or interval of cleaning and inspections. When such a policy is established, it provides guidelines for accountability and verification. The question should be: How long was a substance or debris on the floor prior to the incident? This is an important question must answer when considering the constructive notice issue. Having an established and consistent frequency will answer this question and determine how adequate the maintenance procedure is and determine if it was implemented. More importantly from a control point of view, the establishment managers can determine when the floor was last cleaned or inspected any time during the opening hours.
Finally, there must be some form of verification present in the program. There are different ways to accomplish this. It first must be understood that this is a function that is performed by management. If a manager patrols the premise on a regular and consistent basis to make sure that the establishment is being adequately maintained, then this is a satisfactory form of verification. In order for an inspection by management to be adequate such verification must be regular and consistent. In addition, a patrol should be done for the purpose of verifying a specific task.
Another form of verification is the sweep log, sweep sheet or inspection sheet which is widely used in retail establishments. This method of verification requires the individual who actually performed the cleaning function to sign the document after performing the task. The manager can, by reviewing this document, determine who performed the task and when the floor was last swept or inspected. This gives the management control and is helpful for an adequate maintenance program. This document has been used in the retail industry for many years. The sweep sheet is relevant when the individual’s primary assigned task is not sweeping or inspecting the floor. The best example of this is seen in supermarkets where the courtesy clerks are assigned the task of sweeping the floors. Their primary task is bagging groceries and retrieving shopping carts from the parking lot. A sweep sheet will track the time the courtesy clerk actually spends on floor maintenance. This document is a tool for management which allows them to control and verify the cleaning process.
The person responsible for the daily operation of an establishment is expected to have knowledge of the procedures necessary for the maintenance of the premise. This person should have knowledge or know where to obtain such knowledge of the various building codes, health codes and governmental regulations prescribed by municipal, state, and federal agencies. In addition, individual company policies and procedures must be followed. There is no acceptable excuse for the lack of knowledge, the failure to obtain such knowledge or, most importantly, the failure to implement such procedures, codes or regulations.
The actual mechanics of implementing procedures will differ depending upon the nature of the establishment, but there are common principals present in any establishment which should be followed. For example, a restaurant, a supermarket or an apartment building all have different safety issues due to the nature of the establishment; however, safety procedures in each will still have common guidelines.
In any establishment, the goal is to maintain a reasonable, safe environment for its customers. The common goal present in every type of establishment is to maintain a safe environment on the premise. Each establishment should have policies and procedures to accomplish such a goal which are dictated by the nature and type of establishment. A policy defines the goal of an establishment, whereas the procedures outline and establish guidelines to accomplish the established goal; both policy and procedures are necessary to have an adequate maintenance program.
For example, the primary goal of the maintenance program of any establishment is to reasonably insure the safety of those who use the premises. Maintaining safe floors in any environment is mandatory to accomplish this goal. Before discussing principles which must be present in floor maintenance procedures, one must first be aware of two undisputable facts regarding public premises. First, any time the public uses any facility, objects or liquids will fall onto the floor or walkway. This is due to traffic flow and the handling of products. There is nothing to prevent things from falling onto the floor. This fact is true in any type of establishment. The second fact is that anything on the floor or walkway is a dangerous hazard. This means any type of liquid, object or debris. Water on the floor poses just as dangerous a condition as oil. Even though oil is more slippery than water and one will be more likely to slip, adequate maintenance programs consider both substances as dangerous and the maintenance principals do not change. Although the methods of cleaning actual substances will differ, generally accepted procedures of maintenance do not distinguish between specific substances and must be removed within a reasonable time. An adequate maintenance procedure must take into consideration these two undisputed and foreseeable facts. It is the goal of any adequate maintenance procedure to be able to detect and correct such foreseeable hazards on a timely basis. Failing to have such a goal disregards the fact that things will fall onto the floor and creates a safety hazard. An adequate maintenance procedure, in accomplishing this goal, must be regular and consistent with regard to the implementation process. The failure to have a regular and consistent program will result in an inadequate maintenance program.
It is very important to understand that the actual mechanics of how premises will be maintained depends on nature of the location, types of products sold, time of day, type and flow of traffic and even location within the establishment.
The common guidelines and principles, however, regardless of these variables are the same.
The Superior Court decision in Ortega v. K-Mart plaintiff’s expert opined that the maintenance procedures were inadequate because it failed to have the three principles discussed herin. “Plaintiff’s maintenance expert conceded he found no direct evidence indicating how long the puddle had been on the floor before plaintiff’s fall. He stated that stores like K-Mart should implement three basic maintenance tools…..” (Ortega v. K-Mart) here to discussed, to achieve adequacy in their maintenance program. The failure to prove such accountability was below the standards of the retail industry. The expert was able to conclude that the substance on the floor was there for an unreasonable length of time. In the evaluation of the adequacy of any maintenance procedure, the question must be asked “Who cleaned or inspected the floor last and when was it last done prior to the incident?” If this question cannot be answered, then the maintenance procedures were inadequate and below the general standard of care. In terms of determining the length of time any substance or debris is on the floor, the conclusion can be made that it was there for an unreasonable length of time. The expert’s opinion in Ortega ultimately led to the court’s opinion which changed the approach to premise liability cases.
Alex J. Balian received his undergraduate degree from UCLA and his Masters in Management from Pepperdine University. He has been active in the retail industry as an owner, operator and consultant. He has experience in various retail environments and has been offering a “hands on” approach in evaluating cases as an expert for over 15 years. Mr. Balian served as the plaintiff’s expert in “Ortega v. K-Mart”.