The oil of speculation

Expert evidence comes in many shapes and sizes.  Circular shouldn’t be one of them.

On2 February 2014 Rose Peralta entered a California supermarket to buy bread.  As she approached the bakery her left foot slid and she fell, suffering injury.  She did not see anything on the floor before or after falling but said she felt as though she had slipped on oil or grease.  She was observed to be wearing shoes with a 3-inch stiletto heel.

Peralta issued proceedings in the Los Angeles County Superior Court.  She relied on an opinion from a civil engineer.  The engineer opined that the flooring would be dangerously slippery if grease or oil were present, and that the fall would not be expected to occur without such substances on the floor.

GIFSec.com
Image from here

The defendant sought summary dismissal of the claim which was granted: Peralta v The Vons Companies Inc (L.A. Co. Sup. Ct, Oki J, 14 February 2017, unreported).  Peralta appealed.

The appeal was dismissed.  Concerning the engineer’s opinion the Court said –

Peraltas … attempt to establish there was a slippery substance on the floor through Avrit’s declaration, in which he opines that the manner in which Rose fell is consistent with a slip created by a foreign substance. Mere conjecture, however, is “legally insufficient to defeat summary judgment.” (Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 734.) The mere possibility that there was a slippery substance on the floor does not establish causation. Absent any evidence that there was a foreign substance on the floor, or some other dangerous condition created by or known to Vons, Peraltas cannot sustain their burden of proof.

The opinion was considered to be, in effect, speculation.

Peralta v The Vons Companies Inc (California Court of Appeal, 30 May 2018)

Waddya know, Wal-Mart?

You can find everything at Wal-Mart. Except maybe a sponge.

Leoncio Garcia went to a Wal-Mart store in Houston, Texas at 6:21am on 9 June 2015.  Twenty-five minutes earlier a floor-scrubbing machine operated by a Wal-Mart employee had passed over – and briefly paused at – a point where the floor surface changed from vinyl to tiles.  It was this point where Mr Garcia slipped and fell, suffering a knee injury.  An employee of the store then put a warning cone down on the floor because she saw a liquid at the sit of the fall.

walmart
Image from here

Mr Garcia sued Wal-Mart for his injuries.  Wal-Mart responded that there was no evidence that it knew of the hazard before the accident.  It applied for summary judgment which was granted: Garcia v Wal-Mart Stores Texas LLC (US Dist. Ct SD Tex., Gilmore J, 9 June 2017, unreported).  The plaintiff appealed.

The appeal was upheld by the Fifth Circuit Court of Appeal.  The Court noted that four things must be proved in an occupiers liability claim:

  1. That the owner had actual or constructive knowledge of the hazard.
  2. That the hazard presented an unreasonable risk of harm.
  3. That the owner failed to take reasonable care to reduce or eliminate the risk.
  4. That the risk was the proximate cause of the injury.

Knowledge could be established by (inter alia) showing that the owner had placed the substance on the floor.  Garcia’s case was that there was circumstantial evidence that the fluid came from the scrubber, thereby meeting the knowledge requirement.  Because this was more plausible than Wal-Mart’s alternative explanations, it was appropriate for the factual dispute to be returned to the trial court for decision.

Garcia v Wal-Mart Stores Texas LLC (US 5th Circuit Court of Appeals, 18 June 2018)

What do you mean “dangerous”?

Tewksbury, Massachusetts isn’t a big place. It still generated an interesting appeal on public liability though.

On 20 January 2012 Eileen Potvin and her boyfriend stopped to get fuel at a service station in Tewksbury. While her boyfriend was paying for the fuel she went looking for a squeegee to clean the windshield. She began to walk towards the car backwards (for reasons which were not explained). The heel of her shoe caught in a groove in the paving. She fell and was injured. The groove was part of a legally mandated barrier designed to catch fuel spills.

1907 Andover Street, Tewksbury MA (Image from here)

Potvin sued the operator of the service station. She alleged that the groove was a hazardous condition of the premises and that the operator had failed to warn of them.  She conceded however that they were open and obvious to the average poerson.  The defendant sought summary dismissal of the claim, which was granted by the US District Court for Massachusetts: Potvin v Speedway LLC, 264 F. Supp 3d 337. Potvin appealed.

The Court of Appeals for the First Circuit noted that it was common ground that  Massachusetts law applied. The Court accepted that a landowner generally owes a duty to protect lawful visitors from dangerous conditions. In practical terms, however, they need only maintain the premises to a standard that would be safe to a person exercising the minimum care required in the circumstances.

Under Massachusetts law, property owners are relieved of any duty to warn of open and obvious conditions, including those that present open and obvious dangers, since it is logical to expect that a lawful visitor exercising reasonable care for her own safety would not fall victim to such “blatant hazards.”

Because the grooves were open and obvious, the defendant was not obliged to warn visitors about them.

The plaintiff also contended that the defendant had a duty to remedy the danger presented by the grooves, on the basis that there was a heightened reason to foresee that even though the hazard was obvious an open, it presented a danger likely to cause harm.  This argument was also rejected.  She suggested signs and brightly coloured paints as remedies.  The court retorted that –

warnings are not remedies. … [A]llowing a plaintiff to conflate warnings with remedies would frustrate settled doctrine. … Where, as here, the plaintiff does not propose a feasible remedy, a property owner cannot be held to answer for a putative duty to remedy.

The appeal was dismissed

Potvin v Speedway LLC (2018) US First Circuit Court of Appeals, 4 June 2018