Rain, Rain, Go Away: Avoiding Premises Liability Actions When Mother Nature Strikes

We’ve all been there. You circle the parking lot two or three times in search of that Utopian parking spot located just steps from the store’s entrance and covered in the shade of a majestic oak tree. But just about the time you start your final pass before accepting defeat, the dark clouds roll in and drop buckets of rain so harsh your mind conjures visions of animals marching  two-by-two. With no signs of life in the vehicles in the front row parking spaces, you are forced to park your chariot in what seems like the distant lands of a foreign nation. It’s only at that moment you first realize your one and only safety net from the monsoon is an umbrella which just so happens to be located safely between your nine iron and putter in a golf bag at home. Your only option is to call upon your inner Usain Bolt to dash through the downpour until you can reach shelter at the store’s entrance. Despite executing a 40-yard dash worthy of honorable mention at the NFL combine, you reach the entrance soaked from head to toe, your tee shirt stuck to your back and tennis shoes squeaking with every step.

Okay, I’ll admit it. That may be a bit of hyperbole. Chalk that up as a feeble attempt to use what my high school English teacher would call an “attention grabbing hook.” But undoubtedly we have all experienced situations while running routine errands or meeting friends for dinner where we are wholly unprepared for the elements Mother Nature throws at us. We end up in a rush to avoid that “fresh out of the swimming pool” look and are not entirely focused on our safety, or the well-being of those around us. The majority of the time, we are able to air dry over an appetizer, or hang our wet clothes on the hook in the dressing room while we try on a bunch of new outfits. No harm, no foul, as they say.

However, as the owner or risk manager of a retail store, hotel, or restaurant, it is your job to not only delight in each individual who patronizes your business without incident, but also to focus on the bigger picture to ensure a series of non-issues doesn’t lead to one unfortunate customer accident. It’s during these times that you, as a business owner, need to understand exactly what duties you and your employees owe to the rain-soaked customer.

In South Carolina, a merchant (such as the owner of a retail store, hotel, or restaurant) is not an insurer of the safety of his/her customers; however, the merchant does owe his/her customers certain duties such as exercising ordinary care to keep the premises in a reasonably safe condition. See Felder v. K-Mart Corporation, 297 S.C. 446, 377. S.E.2d 332 (1989). Further, the merchant is not required to maintain his/her premises in such a condition that no accident could happen to a patron at the facility. See Denton v. Winn-Dixie Greenville, Inc., 312 S.C. 119, 439 S.E.2d 292 (1993).

In determining negligence in slip-and-fall cases involving a foreign substance, the South Carolina Supreme Court has outlined two categories under which a Plaintiff may maintain an action against a merchant: (1) where the plaintiff demonstrates the foreign substance in which he/she slipped was actually placed on the floor by the merchant or its agents (i.e. employees); or (2) where the plaintiff demonstrates the merchant had actual or constructive notice the substance was on the floor at the time of the slip and fall, but failed to remedy or otherwise warn of the danger it posed. See Legette v. Piggly Wiggly, Inc., 368 S.C. 576 (Ct. App. 2006); see also Gilliland v. Pierce Motor Company, 235 S.C. 268, 111 S.E.2d 521 (1959); Wintersteen v. Food Lion, Inc., 344 S.C. 32 (2001); Hunter v. Dixie Home Stores, 232 S.C. 139, 101 S.E.2d 262 (1957); Anderson v. Belk-Robinson Company, 192 S.C. 132, 5 S.E.2d 732 (1939). The mere fact that an injured party can show a foreign substance was in fact on the floor which caused his/her fall is insufficient standing alone to maintain an action for negligence against a storekeeper. See Calvert v. House Beautiful Painting & Decorating Center, Inc., 313 S.C. 494, 443 S.E.2d 398 (1994); see also Browning v. Bi-Lo, Inc., 2004 WL 6334931 (West 2004).

Therefore, as noted above, a patron seeking to recover under a premises liability theory for a slip-and-fall injury must show either the substance was placed on the floor by the store, or that the store had actual or constructive notice the substance was there. Where there is no evidence a store employee placed the substance on the floor himself/herself (for example by mopping the floor), and no evidence the store had actual notice of the substance, the injured party will seek to prove the store had constructive notice the substance was there. “Constructive notice may be proved by showing that the [foreign substance] had been on the floor sufficiently long that the [store] was negligent in failing to discover and remove [that substance]” prior to the injured party’s fall. Hunter v. Dixie Homes Stores, supra. Hence the need for routine, periodic store inspections by employees during their shifts to identify and remedy potential hazards.

However, even with the most stringent store policies requiring routine, periodic store inspections by one’s employees, slip-and-fall incidents still occur. The Court has recognized a store’s inability to entirely ensure the absence of foreign substances on its floors by conducting continuous inspections, saying “[i]t is well settled that merchants are not required to continuously inspect their floor for foreign substances.” Olson v. Faculty House of Carolina, Inc., 354 S.C. 161, 166, 580 S.E.2d 440, 442, (2003). The standard, rather, is simply to “[exercise] ordinary care to keep the premises in a reasonably safe condition.” See Felder v. K-Mart, supra.

That leads us to the question: how have South Carolina courts viewed merchant liability for customer slip-and-falls resulting from tracked-in rainwater in the past? In Young v. Meeting Street Piggly Wiggly, the South Carolina Court of Appeals noted “it is impossible to keep commercial premises entirely free of tracked-in rain during bad weather” and, for that reason, “a merchant’s liability may not be based solely on the presence of moisture” within the store. Young v. Meeting Street Piggly Wiggly, 288 S.C. 508, 510, 343 S.E.2d 636, 637 – 638 (Ct. App. 1986). Rather, the injured party must prove a presence of moisture which caused their injury, as well as evidence the business failure to exercise reasonable care in identifying and remedying the hazard caused by the accrued moisture. The Young court concluded the merchant in that instance, Piggly Wiggly grocery store, had undertaken sufficient reasonable steps to protect its customers from tracked-in rainwater by placing rubber mats inside and outside of the store’s entrances, having employees mop the entrance/exit areas to remove excess water every five (5) to ten (10) minutes, and placing at least one warning sign in proximity to the area of accumulation to caution patrons of the potential hazard. The court also recognized holdings in outside jurisdictions where storekeepers had satisfied their duty of care by mopping entrances periodically to avoid accumulations of rainwater. In particular, the court referenced an Iowa Supreme Court case in which the Court held a store’s mopping of tracked-in rain water “every hour or two” near the entrances was objectively reasonable and sufficient to relieve the store of liability for a customer slip-and-fall. Young at 511, 343 S.E.2d at 638; quoting Weidenhaft v. Shoopers Fair of Des Moines, Inc., 165 N.W.2d 756, 761 (Iowa 1969).

Twenty years after the Young decision, the South Carolina Court of Appeals reiterated its approval of the inclement weather procedures established in that case through the opinion set forth in Legette v. Piggly Wiggly, Inc., supra. In Legette, the court found Piggly Wiggly employees had also satisfied their duty of exercising reasonable care to maintain the commercial premises in a reasonably safe condition from tracked-in rainwater by mopping the store’s entry periodically, placing caution signs in the area to warn customers of the potential hazard, and leaving rubber mats in place at the entrance(s) and exit(s) until such time as those mats became so saturated that they posed a greater danger to customers than exposing the store’s bare floor. See Leggette, supra at 580, 629 S.E.2d at 377. These precautionary policies remain in place today in South Carolina as sufficient to satisfy a merchant’s duties to the patron under the applicable standard.

It should also be noted that South Carolina has recognized a customer’s responsibility to ensure their own safety when hazardous weather conditions present themselves in a commercial setting. Specifically, in the Young opinion, the Court cited opinions from the Louisiana and North Carolina Courts of Appeals, as well as the Ohio Supreme Court, stating “an ordinary reasonable person would know that there would inevitably be moisture on the floor as a result of rain-soaked people coming into the store.” Young at 510, 343 S.E.2d at 638. In quoting the Ohio Supreme Court’s opinion in S.S. Kresge Co. v. Fader, the court said “[everybody] knows that, when people are entering any building when it is raining, they will carry some moisture on their feet, which will render the floor near the door on the inside damp to some extent, and everyone knows that a damp floor is likely to be a little more slippery than a dry floor.” For that reason, “[i]t is not the duty of persons in control of such buildings to keep a large force of moppers to mop up the rain as fast as it falls or blows in, or is carried in by wet feet or clothing or umbrellas, for several very good reasons, all so obviously that it is wholly unnecessary to mention them here in detail.” It is also the duty of the patron to exercise reasonable care for their own safety and well-being when entering a store from inclement weather outside. While the precise actions which are expected from the customer are not specifically spelled out, one would expect them to include walking at a slower pace, keeping a proper lookout for accumulated moisture on the floor, and wearing proper footwear to avoid an increased chance of slipping, amongst other things. Evidence of a customer’s failure to conduct themselves in a reasonable manner in light of the hazards posed by the rain may present an argument for contributory or comparative negligence in subsequent litigation.

With these precedents in mind and the apparent imposition of some increased level of care when inclement weather strikes, storekeepers, hoteliers, and restaurateurs would be wise to take a moment to ensure appropriate policies and procedures are in place at their businesses to ensure both the safety of customers on the premises, and also to avoid unnecessarily exposing ones’ self to potential liability for injuries sustained thereon. Whether instituting protocols for the placement of rubber mats and caution signs near entrances/exits when inclement weather is anticipated, requiring routine inspections and mopping at those locations once precipitation has begun, or some other combination of reasonable safety precautions, business owners and risk managers alike should take the time to ensure appropriate written policies and procedures are in place for their company, are provided to the employees, and are documented and carried out uniformly across a company’s multiple business locations.

Behold! The Taylor Swift Complaint!

You know, we here at Abnormal Use could remark or otherwise opine upon the new lawsuit against Taylor Swift. We could analyze the potential motives of the deejay who has filed the suit and claimed that he was falsely accused of groping the pop star. We could comment upon the three causes of action asserted therein (intentional interference with contractual obligations, tortious interference with prospective business relations, respondeat superior) and gauge the likelihood of success. Or we could embed the amended complaint below so that you could read it yourself (as we did here at the office yesterday). Note that the case has since been removed to federal court in Colorado, and the live version of the complaint is that from state court. Enjoy!

David Mueller v. Taylor Swift, et al – Amended Complaint

The Case Of The $9 Million Penis: Sell Or Buy?

In what is sure to go down as the worst injury known to man, an Oregonian has filed suit after having his penis amputated as a result of alleged nursing home neglect. As reported by The Oregonian, the 60-year old man checked into the Oregon City Health Care Center on December 26, 2013, to recover from a kidney infection. He repeatedly complained of pain and bleeding around his catheter, but the nursing home staff allegedly failed to address the problem. On January 20, 2014, the man checked himself out of the nursing home against the staff’s advice and sought medical care at a local hospital, where he was immediately treated for sepsis. Because his penis was so infected, surgeons apparently had no choice but to amputate. The man also allegedly suffered from acute diastolic heart failure, kidney damage, breathing problems, and anemia. The man has incurred up to $2 million in medical bills, lost wages, and other economic damages. He is also seeking $6 million for pain and suffering. Not surprisingly, his wife is also seeking $1 million for loss of consortium.

While it is possible there could be some issues with causation if the amputation is related to the kidney disease rather than the alleged neglect, we here at Abnormal Use are much more interested in discussing the man’s damages. For many, the $9 million price tag may actually be considered a bargain. It is certainly a loss that most would never want to consider. There may be no amount of money that can compensate for the loss of a penis – at least for the extrinsic value the man places on it.

On the other hand, we have to wonder whether a penis depreciates in value? Should we be determining value based on some kind of legal rubric that factors in age, past usage, current usage, et cetera? It is certainly arguable that the injury to an older man may not carry the same weight was an injury to a college student, for example. Sure, this argument may sound picky and perhaps a little NSFW, but we are defense lawyers, after all.

At the end of the day, assuming the nursing home is liable, we expect this case to end by way of a hefty settlement. Taking this case to trial would probably be risky.  After all, some portion of the jury will be made up of men, all of which would pay millions to keep from suffering the same fate.

Friday Links

Today, of course, is the fourteenth anniversary of the September 11, 2001 attacks. In light of that somber anniversary, we here at Abnormal Use and Gallivan, White, & Boyd, P.A. pause to reflect on the day and the lives lost. We also direct your attention to a prior post in which we quoted the words of Baylor Law School professor Gerald Powell who, in a commencement speech in February 2002, offered these words:

You can no longer focus on just yourself, on your career, or even on just your own family.  More will be asked of you.  As Americans, and especially as lawyers, you will carry with you great responsibilities.  After September 11, each of you must be willing to stand guard over our liberty, to serve your country selflessly, and, if the need arises, be a hero.

Each of us must take our turn as sentinels.  And as lawyers we have our own post to man.  Our watch is over the Constitution.  Our perimeter is the outposts of liberty.  Our weapon is the law.  Our mission is to see that justice is done.

[W]e also hope that each of you will have inside of you that seed of heroism perhaps dormant until a moment of truth, when it will spring forth in the energizing light of adversity to give us the hero we need.  And until that time comes, or whether it ever comes, we hope and pray that you will act heroically in the conduct of your everyday lives, professional, public and personal.

You can read our post on the tenth anniversary of 9/11 here.

Bad News For Barbie Jeep Joy Riders: Barbie Jeeping While Intoxicated Will Get You Jailed

Lowering the Bar recently blogged about a young college student who figured out a way to maintain style and mobility following an alcohol-related license suspension:

Tara Monroe is a college student in Texas who has gained some notoriety for her response to a DWI arrest in March. Monroe, whose “license was automatically suspended after [she refused] a breathalyzer test after a Waka Flocka concert,” then had to find some other way to get around. She has a bike, but “[r]iding a bike around campus sucks,” she noted. “Like, really sucks,” she added.

Left with no virtually no other choice, Ms. Monroe purchased a $60 Barbie convertible to drive around campus. Obviously, she draws the attention of other students, who apparently also take frequent photographs.

Barbie Jeep

There is basically no downside to this mode of transportation, right?  Drive around in electric pink glory, drawing the attention of everyone you encounter, pounding booze the whole way, all without consequences? Wrong. Cue the buzzkill lawyers with their “legal opinions.” Lowering the Bar apologizes for being the “bearer of bad news,” but adds that the pounding booze aspect of driving the Barbie car is “not a good idea”:

As many of you know by now, driving something unusual is your right as an American, but driving something unusual while intoxicated can still get you in legal trouble. That’s been true even for vehicles that arguably are not at all dangerous to anyone (e.g., Zamboni, wheelchair, inflatable raft, motorized beer cooler), and there’s no “ridiculous vehicle” exception (e.g., golf cart, motorized bar stool, Christmas parade float). In any event, it always comes down to what the state’s law provides.

Lowering the Bar goes on to examine Texas law on the issue and determines that Texas apparently frowns upon driving unusual vehicles while drinking, in that doing so is illegal. But aha! Apparently, “there are no Texas cases (yet) that address these laws in the specific context of Barbie jeeps” and apparently you can drink and joy ride in a Barbie Jeep to your heart’s content as long as [no one is harmed] and you “at least stay on private property.”

Our brief research tells us that you also can also be arrested for: “stealing a lawn mower while intoxicated. State v. Bombailey, No. E2003-00421-CCA-R3CD, 2004 WL 170350, at *1 (Tenn. Crim. App. Jan. 28, 2004); [as noted by Lowering the Bar] “operating a riding lawn mower on a county road, apparently intoxicated” Williams v. State, No. 03-02-00751-CR, 2004 WL 34840, at *1 (Tex. App. Jan. 8, 2004); driving a bicycle while intoxicated. Velasquez v. Superior Court, 227 Cal. App. 4th 1471, 1478, 174 Cal. Rptr. 3d 541, 546 (2014), reh’g denied (Aug. 13, 2014), review denied (Oct. 22, 2014). However, the good news for Segway pub crawl participants is that “[t]he Minnesota Court of Appeals has concluded that operating a Segway while intoxicated does not violate Minnesota’s DWI statute.” Greenman v. Jessen, 787 F.3d 882, 891 (8th Cir. 2015). It is also worth noting that, while “driving a tricycle while intoxicated” may be fair game, one who is caught “driv[ing] onto a sidewalk, crush[ing] a child’s tricycle and driv[ing] off, seeming intoxicated” will likely not evade arrest. See Bagheri v. State, 119 S.W.3d 755, 762 n.4 (Tex. Crim. App. 2003); State v. Wallace, 539 So. 2d 123, 124 (La. Ct. App.) writ denied, 544 So. 2d 400 (La. 1989).

Tech Giants’ Anti-Poaching Suit Settlement Finally Approved.

It looks like the anti-poaching saga for Apple, Google, Intel, and Adobe is finally over. We previously reported on a proposed settlement of the case and the court’s rejection of that settlement. By way of refresher, the Plaintiffs in the class action lawsuit alleged that the four Silicon Valley companies agreed to not poach each others’ employees which, in effect, formed an anti-competitive cabal that kept software engineers’ wages down.  After rejecting a prior proposed settlement of $325 million, the court has now approved a $415 million settlement.

The settlement covers more than 60,000 workers in the class. The net effect is that the settlement will provide payouts of approximately $5,000 per plaintiff. Not an insignificant amount of money, but certainly not a windfall for the types of employees whose wages were allegedly suppressed. However, it’s not as though no one received a windfall. The settlement provides for approximately $40 million in fees to the plaintiffs’ attorneys. Lest you think $40 million in attorneys’ fees is unreasonable, this number was down from the $81 million in fees originally requested. Apparently, the court had the good sense to cut fees in half.

It looks like Adobe was the only company to comment on the settlement, telling cnet.com:

Adobe firmly believes that our recruiting policies have in no way diminished competition for talent in the marketplace. Adobe strongly denies that it violated any laws or engaged in any wrongdoing. Nevertheless, we elected to settle this matter in order to avoid the uncertainties, cost and distraction of litigation. We are pleased to have the matter resolved.

How about that?

Jessica Alba’s Honest Company Allegedly Not So Honest

Frustrated with the lack of safe and eco-friendly products for her new baby, movie and television star Jessica Alba teamed up with Christian Gavigan to found The Honest Company. With an emphasis on ethical consumerism, The Honest Company produces a number of non-toxic household products including diapers, sunscreen, and personal care items, among others. With such a benevolent name, The Honest Company holds itself to pretty high standards and operates pursuant to the aptly named “Honestly FREE Guarantee.” According to The Honest Company’s website, the following is what such a guarantee means:

We believe the products people use should be safe and non-toxic (surprisingly, many companies don’t!) — not filled with questionable, risky, untested, or harsh ingredients. We also believe it’s better to be safe than sorry when deciding what goes in our products and we’re vigilant about the latest science regarding chemicals and health to ensure we’re being mindfully cautious.

Based on these beliefs, we created our Honestly FREE Guarantee — a core commitment we make to you and your children. And, it’s another way for us to be Honest — educating, empowering and inspiring people to make better choices for their health & families. Providing clear, credible, transparent information. No smoke and mirrors. No confusion.

Unfortunately, a new class action lawsuit filed in California has accused The Honest Company of being not so honest.  According to a report from the Business Insider, the lawsuit, filed by plaintiff Jonathan D. Rubin, alleges that the company’s hand soap, dish soap, diapers, and multi-surface cleaner are “deceptively and misleadingly labeled.” Rubin alleges that even though the company markets its products as being “natural,” in reality the products contain multiple synthetic preservatives. The complaint contains causes of action for breach of contract, unjust enrichment, and violations of several California consumer protection laws. The proposed class is seeking damages in excess of $5,000,000.

In response, Jessica Alba provided Business Insider with the following statement:

Seven years ago, when I was pregnant with my first daughter, I was frustrated by the lack of healthy and safe product options for me and my new family. In fact, prior to launching The Honest Company, I began lobbying Congress to require that ingredients used in everyday products are tested for safety prior to entry into the marketplace.

I started The Honest Company to develop safe and effective products not just for my children, but for families everywhere. I am very proud that we have built this company into an industry leader focused on using natural ingredients and developing products that people love.

We believe that consumers deserve to know what’s in their products — whether it’s diapers for their children, cleaning products for their families or beauty products for themselves. Our formulations are made with integrity and strict standards of safety, and we label each ingredient that goes into every product – not because we have to, but because it’s the right thing to do.

The allegations against us are baseless and without merit. We strongly stand behind our products and the responsibility we have to our consumers. We are steadfast in our commitment to transparency and openness.

I know my children, Honor and Haven, are growing up in a safer home because of our products.

Interestingly, we here at Abnormal Use have made a thorough review of The Honest Company’s website and nowhere did we find any reference to the products being all-natural or made without synthetic preservatives. Rather, The Honest Company claims to be “non-toxic,” a term that it defines much broader than many of its competitors. In fact, as a part of the Honestly Free Guarantee, each product contains a list of the products that are specifically not used in creating the product as well as those that are. It is hard to imagine how such a product could be any more transparent.

We hope this suit turns out well for The Honest Company. We have always liked Jessica Alba and applaud her company’s mission. Honestly.

Labor Day

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. wish you and your family a fun and festive Labor Day. We hope you’ve enjoyed your weekend of leisure and college football (although our editor, a graduate of the University of Texas, had a tough weekend in light of the results of the Notre Dame game).

We’ll resume our normal posting schedule tomorrow.

Try not to bill any time today, lawyer readers!

Friday Links


Forgive us, as it’s possible we’ve used this comic book cover before, but there aren’t too many referencing Labor Day. So, we feature Batman: The Long Halloween #12, published not so long ago in the halcyon days of 1997. We here at Abnormal Use and Gallivan, White, & Boyd, P.A. hope everyone has a fun and festive Labor Day.

Um, this is a curious Westlaw Next warning. Spoiler alert: We still miss Westlaw Classic. If you’re also feeling nostalgic, you can reread our Westlaw Classic obituary here.

Our favorite tweet of late is from June, but it’s a still good one:

GWB’s New Charleston Office Digs!


Back in February, we here at Abnormal Use and Gallivan, White, & Boyd, P.A. announced that we had opened an office in Charleston, South Carolina. Exciting news, that. Well, we can now announce that our permanent office in Charleston has now opened and we’ve officially moved into that space. Yes, that’s a conference room picture above. As always, you can find all of the relevant contact information for our offices over on the official website, which you can access here. Be sure to let us know when you next find yourself in Charleston!