A key question in most premises liability cases is, “What constitutes a hazard?” After all, not every object that may obstruct a customer’s path is is necessarily dangerous. It is important to establish why a particular object constitutes a hazard–which leads the follow-up question of whether or not the management of the premises took reasonable steps to identify and correct that hazard.
Powell v. Variety Wholesalers, Inc.
Consider this ongoing federal lawsuit in Statesboro that centers on a clear plastic clothes hanger. One day in 2015, the plaintiff and her granddaughter went shopping at a department store owned by the defendant. The two women used one of the store’s changing rooms to try on clothes. As they exited the changing area, the plaintiff “slipped and fell” on the clear hanger, which according to her was “lying in the middle of the aisle.”
Immediately following the accident, the plaintiff spoke with a store employee about what had just happened. The plaintiff later filed a premises liability lawsuit against the store. During the course of pretrial discovery, the employee offered conflicting testimony about the events leading up to the plaintiff’s fall. Specifically, the employee told the plaintiff that on the day of the accident she “inspected the aisle” 10 minutes earlier and “did not see a coat hanger.” Yet during her deposition, the same employee first said “she had no contact with Plaintiff before the fall,” only to later change her story to say that she “unlocked the changing room door for Plaintiff and her granddaughter” just before conducting the alleged inspection.
The plaintiff’s theory of liability rests on two assertions – first, that the use of clear hangers itself constitutes a hazard; and second, that the defendant failed to maintain a “reasonable inspection policy” for the changing area.
The federal judge assigned to the case rejected the first claim outright but held that the plaintiff could go to trial on her second claim. With respect to the coat hangers, the judge said that the only evidence offered by the plaintiff to establish the existence of a danger was the proposed testimony of an expert witness. The expert opined that clear hangers are dangerous based on what the judge described as “one line from the National Safety Council’s (NSC) Data Sheet, Falls on Floors,” which advises stores to use “colored hangers that contrast with the floor color for easy identification.” The judge excluded this testimony because the expert provided “no information about the NSC” and how their guidelines are relevant to the defendant and its industry.
As for the defendant’s inspection policy, the judge said the employee’s conflicting testimony on this point warranted submitting the issue to a jury. Although the store claims it had an “adequate inspection policy” for its floors, if the employee failed to carry out the policy–or indeed, the policy was not adequate–that would demonstrate “constructive knowledge” of the hazard posed to the plaintiff by the hanger on the day of her accident.