If you practice law long enough, you will find that theories of negligence have no bounds. Regardless of how cautious one may be, a clever lawyer can always argue that a person breached some duty of care. For example, in Adams v. Kroger Ltd. Partnership, No. 12-1499 (4th Cir. June 12, 2013), the Fourth Circuit held that a company can be held liable for negligent cleaning. Yes, negligent cleaning. The facts of the case are as follows: A sales representative for a wine vendor dropped a bottle while he was stocking the shelves at a Kroger store in Virginia. Following the accident, the sales rep blocked off one side of the spill, swept and mopped the area, and put up a warning cone. Thereafter, the plaintiff entered the area, slipped ,and fell. The plaintiff injured the retina in her left eye, leaving her legally blind. As a result, the plaintiff filed suit against Kroger and the wine distributor, seeking $1 million in damages.
At trial, the district court granted the defendants’ motion for judgment as a matter of law. The district court, finding that there was no evidence from which a jury could find the defendants breached a duty of care, stated:
When [the sales representative] accidentally dropped the bottle, he secured the area with boxes. He swept up the broken glass, obtained a mop and bucket and mopped the floor. Afterwards, he put a yellow caution cone in the area. All of these beg the question: what else was [the sales rep] supposed to do given what he had done? There is no evidence in the record, expert or otherwise, that establishes that [the sales rep] breached his duty of care.
The Fourth Circuit took it as a challenge. According to the Court, there was evidence that the sales representative used a hand-sanitizer-like product to clean the floor and, thus, the jury could find that act to be unreasonable. Likewise, the Court noted that the jury could have also found that it was unreasonable that the sales rep didn’t dry the floor. As such, the Court vacated the judgment and remanded the case. It will be interesting to see what the jury will do when given the opportunity to ponder the evidence in this matter. We don’t disagree with the Fourth Circuit that cleaning could be performed negligently. If the sales rep had dropped a pallet of wine and “cleaned” the spill by dropping a single paper towel into the area, then, sure, find him negligent. But, this is not the case. Here, the Court vacated the judgment, not based on the evidence of what the sales rep did, but on speculation about what he could have done. A jury could always think of something extra the sales rep could have done. For example, the jury could determine the sales rep should have re-tiled the floor to make sure no remnants of wine remained. But, no one would find him negligent for not doing so.
Even the wildest theories should be based on the evidence. In this case, the evidence showed that the sales rep took appropriate steps to clean the floor. There was no evidence that she fell because of the product used to clean the floor. The jury is to consider the evidence – not every wild theory based on what it is not.
[Hat Tip: Libation Law Blog]