Charles E. Turnbow's Slip and Fall Notebook
Legal Stuff
The law regarding premises liability and specifically slip and fall cases is in a dynamic flux. Changes in case law alter both the approach and sometimes the elements of liability. In the past year or so there have been some interesting developments in this area. In one case, the existing case law was supported by the California Supreme Court. In another, a 30-year doctrine of prohibiting OSHA regulations and standards as evidence in third party cases was overturned.
KMart Found Negligent for not Conducting Regular Inspections
The long awaited Supreme Court decision in Ortega v. KMart Corporation, 26 CAL 4th 1200 finally came down on December 20,2001. This case held that a store owner must exercise ordinary care to make premises reasonably safe by make reasonable inspections of the portions of the premises open to customers, and the care required must be commensurate with the risks involved. KMart has no regular inspection procedures. All employees or associates are required to be vigilant regarding hazards. There is no accountability, specificity or documentation which would indicate that these necessary safety procedures were done in a regular and competent manner. In its decision, the Court refers to two very good articles on market inspections and store owner's duties; Annot., Liability of Operator of Grocery Stores to Invite Slipping on Spilled Liquid or Semi liquid Substances (1983) 24 A.L.R. 4th 696 and Reapportioning the Burden of Uncertainty; Storekeepers Liability in the Self Service Slip and Fall Case (1994) 41 UCLA L. Rev. 861, 878. I have read these articles and recommend them for further study. In the 2002 revision of my book Slip and Fall Practice, I discussed the Ortega case in some detail.
The bottom line of the Ortega case, Bloome v. Frye Food Stores, DeVille v. KMart and other similar cases is that the storeowner must regularly inspect the sales floor for defects or hazards. Failure to do so creates a inference of negligence. In some jurisdictions, the failure to inspect may lead to the presumption of notice. For more information see Slip and Fall Practice, Chapter Two, under Mode of Operation.
Evidence
Problems with Daubert and its Progeny
California Dumps Restriction of OSHA Regulations in Third Party Cases.
O
n October 6, 1999, new Labor Code Section 6403.5 was signed into law which permitted OSHA regulations to be admitted in third party civil actions. This new law would be effective on all cases tried after January 1, 2000. Labor Code Section 6304.5 basically returned to the law that existed prior to 1972, which read:"Employers shall have the same meaning as in Section 3300 and shall include every person have direction, management, control, or custody of any employment, place of employment or any employee (Labor Code Section 6304)"
"Every Employer shall furnish employment and place of employment which are safe for the employees therein. (Labor Code Section 6400)
"Every employer shall furnish and use safety devices and safeguards, and shall adopt and use practices, means, methods, operations, and processes, which are reasonably adequate to render such employment and place of employment safe. Every employer shall do every other thing reasonably necessary to protect life and safety of employees. (Labor Code Section 6401)
Until Section 6404 was repealed by the 1971 legislation, state OSHA standards would be admitted into evidence as a foundation for a negligence per se instruction. The new section limited the definition of employer. In 1976, the California Appellate Court ruled in Spencer v. G.A. McDonald Construction Co . 63 Cal. App. 3d 836, 857-858 that these sections of the labor code only applied to the relationship between the employer and his employees and were not applicable to third parties, therefore the OSHA requirements would not be admissible in third party actions.
The new legislation allows the introduction of OSHA regulations against "statutory employers" pursuant to the requirements of Evidence Code 669 regarding negligence per se. While OSHA regulations may be admissible regarding subcontractors, venders and the like, they probably would not be admissible in cases involving the public or passersby.
[Note: Click on link above for a summary and intent discussion of this new law]