Retailers face liability on a daily basis. Customers routinely slip and fall or encounter dangerous conditions in retail stores. In general, a property owner or occupier has a duty to keep its property in a reasonably safe condition. Retail stores can be held liable if they create hazards, actually know of a danger and fail to eliminate it, or if they should know of a hazard but fail to take steps to avoid it.
The third type of situation can be challenging for plaintiffs' attorneys to prove. Most courts require injured customers to show that the condition that caused an injury lasted long enough that the store should have discovered it and should have remedied it. For example, if a customer slips on water spilled by another customer and breaks his ankle, he will need to show that the spilled water was present for a long enough period of time that a grocery store employee should have seen it and cleaned it up. If there are video cameras in the store, it may be possible for a plaintiff's attorney to subpoena tapes to see whether they show the spill and how long it was present.
However, in some jurisdictions, the plaintiff does not need to prove that the spilled water was present for an extended period. In those jurisdictions, the traditional requirement of notice has been replaced with either a "recurring condition" or "mode of operation" basis of liability.
In a state that follows the "mode of operation" rule, such as Connecticut or Washington, an injured plaintiff can show a prima facie case of a retailer's negligence by putting forward evidence that the defendant's mode of business operation gives rise to a foreseeable risk of injury, and the plaintiff was injured in an accident within the zone of risk. Self-service operations are particularly likely to be considered using the mode of operation standard of care.
The plaintiff's burden to prove notice is not completely eliminated. This approach is not a strict liability approach. The store can defend on the grounds that it had put adequate policies in place, and its employees followed those policies and procedures. For example, if a store uses self-service but also has a system for checking for dangerous conditions and properly implements that system, it may not be liable for a plaintiff's accident.
Instead, the plaintiff must show the injury was caused by a reasonably foreseeable dangerous condition related to the mode of operation. This is usually a fact-sensitive issue. The jury will have to look at whether the retailer took all necessary precautions to protect individuals from foreseeable risks.
In states that apply the "recurring condition" rule, such as New York and Maine, a retail store can show it took precautions necessary to protect customers, but an owner that knows of any recurring conditions that are dangerous to invitees cannot ignore that knowledge or fail to respond to the foreseeable danger that the condition will recur.
Some jurisdictions use hybrid approaches. For example, New Jersey and Oklahoma use the mode of operation approach, but they also use principles of burden shifting, whereby the defendant has the burden of showing it acted reasonably. Illinois combines the mode of operation and recurring condition rules.
In general, retail establishments can prevent premises liability lawsuits by creating and maintaining a clear operations procedure manual and by requiring employees to keep maintenance logs and report any dangerous conditions as well as the conditions in zones of risk where a customer has direct access to products or can serve him or herself. Employers should make sure that employees are trained in these procedures and follow them.
