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.

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