Needle in the haystack

Unearthing constructive notice in your premises-liability case

2022 March

On November 7, 2014, Ilona Mikaelian was working at the Brighton Collectibles store at the Glendale Galleria mall. She was instructed by the store’s manager to take the trash out. She and a coworker exited the store and walked to the trash room to dispose of the trash. In the trash room, there were bins that were placed there for disposal of grease used by cooks in the food court. Ms. Mikaelian threw out the trash, and on her way out of the trash room, she slipped on oil that was on the floor and suffered a fracture and ligament tear in her hand as well as resulting Complex Regional Pain Syndrome. This case was Mikaelian v. Glendale I Mall Associates, et al.

Naturally, as is the case in most premises-liability cases, defendant Glendale Galleria denied liability and pointed the finger at the janitorial company. As many of us know, many premises-liability cases have died a premature death due to the inability to prove notice. Notice can be proven in two ways: actual and constructive notice.

Actual notice is proven when the defendant created the dangerous condition themselves. This occurred in one case when an employee was wheeling a returned refrigerator through Costco, and the refrigerator spilled condensation onto the slippery polished concrete floor. The employee did not clean up the spill before someone slipped and fell on the liquid. Another example is when a gas station employee hosing down the parking lot, pulled on the hose to gain slack on the hose. At that moment, a customer was walking over the hose to get to her car, and the employee did not look around before pulling on the hose to ensure no one was crossing. This employee created that dangerous condition. (Another actual case). That is actual notice.

The other type of notice is constructive notice. Put more simply, that the defendant knew, or reasonably should have known of the dangerous condition, and did not take reasonable steps to protect people from the risk of harm posed by that dangerous condition. This can be tricky in a case where no one knows how long the dangerous condition existed prior to the incident. If it is your burden of proof, and if you cannot prove how long it was there, how can you prove notice? There is a way. Read on.

Working up the case to prove constructive notice

A wise lawyer (ahem, Lourdes DeArmas) once told me to never work your cases up for settlement. Always, always, always work them up for trial. If you work them up for settlement, you pull back on costs on worthy cases, and should your case end up at trial, you may not have what you need to prove notice. If you work your case up for trial and turn over every stone, you will be more prepared to settle your case. In the event your case does not settle, you’ll be prepared to fight the good fight. This is precisely what happened to Ms. Mikaelian.

In working your case up for trial, it is not only smart, but vital, to start with the jury instructions. The jury instructions not only give the jury guidance on how to decide the facts, it’s your roadmap as to how to work up your case for trial. (Kind of wish we had jury instructions for raising teenagers, but alas, we cannot solve all the world’s problems.)

Proving notice is laid out in CACI 1001: Basic Duty of Care. This jury instruction lays out the elements that can be used to prove constructive notice. (Not all need to be used, only those that fit the facts of your case.) Essentially, the jury instruction provides that a person who owns/leases/occupies/controls the subject property is negligent if that person fails to use reasonable care to keep the property in a reasonably safe condition. (Emphasis added). They must use reasonable care to discover any unsafe conditions, and to repair, replace, or give adequate warning of anything that could be reasonably expected to harm others. In deciding whether reasonable care was employed, the jury may consider the following:

The location of the property;

The likelihood that someone would come on to the property in the same manner as the plaintiff did;

The likelihood of harm;

The probable seriousness of such harm;

Whether the defendant knew or should have known of the condition that created the risk of harm; [and]

The difficulty of protecting against the risk of such harm; [and]

Other relevant factors.

What made Ms. Mikaelian’s case so interesting is that the defendant did not create the harm, so how did we prove that they had constructive notice? Discovery. We had to prove that defendant Glendale Galleria and the janitorial company, who contributed to the problem by not adequately cleaning the oil, knew, or should have known of this dangerous condition and they did not remedy the problem or adequately warn of the problem before someone got hurt.

When propounding discovery, it is absolutely imperative that you request any and all documents reflecting inspections. Why? Because landowners are required by law to maintain the land in their possession and control in a reasonably safe condition. (Ann. M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674.) (The shopping center coincidence did not go unnoticed by this author). It is notable that land ownership is not required. “[A] defendant’s duty to maintain land in a reasonably safe condition extends to land over which the defendant exercises control, regardless of who owns the land.” (University of Southern California v. Superior Court (2018) 30 Cal.App.5th 429, 445.) Control is key.

Now, reasonable care includes performing inspections with the intent of identifying any potentially dangerous conditions. Stats v. Vitnner’s Golf Club, LLC. (2018) 25 Cal.App.5th 826, 833, states that to comply with the duty to maintain property in a reasonably safe condition, a person who controls property must inspect [the premises] or take other proper means to ascertain its condition, and if a dangerous condition exists that would have been discovered by the exercise of reasonable care, has a duty to give adequate warning of or remedy it. (Think “wet floor” signs.)

Other items you want to gain possession of include any and all witnesses, the employees that were working at the time of the incident, persons most knowledgeable about the incident and any safety protocols, policies and procedures regarding inspections, any and all documents reflecting safety protocols, employee handbooks, incident reporting and the like, all prior and subsequent incidents, and anything else that is tailored to the facts of your case.

Policies and procedures regarding safety can be a goldmine. If there are policies and procedures in place regarding conducting inspections, and the employees (especially employees that were working for defendant’s company at the time, but are no longer working there so they do not have any fear of retaliation by the company), testify that the inspections were not regularly performed or they themselves did not routinely perform them, you arguably have constructive notice (barring exceptional circumstance).

Policies, procedures and documentation

Further, as was my experience as a defense attorney, certain companies did not require their employees to document inspections. There was always a paragraph in the employee handbook and/or in the policies and procedures that employees were expected to be performing constant visual inspections though they were not documented. This is where I always explore the issue of staffing (in depositions, typically that of the person most knowledgeable).

In the event there are staffing issues, and companies are understaffed, the employees are so overwhelmed they are not thinking about inspecting the premises and this usually turns out to be an incident waiting to happen. In Ms. Mikaelian’s case, the individuals who were tasked with the responsibility to perform inspections suffered from this exact scenario. There was only one security guard on duty that day, and the other individual who performed inspections testified she had not been in the trash room since the day prior to the incident. This is the result of understaffing issues and lack of accountability, and Ms. Mikaelian was the victim.

With respect to documentation, you would be surprised at how many companies do not maintain “sweep sheets” to ensure inspections are being performed and recorded. If your case involves a retail store like grocery stores or chain retailers that sell food and drinks in the store, there are likely going to be customers walking around with food and drinks, which naturally carries the common risk of spills. I have had many of these cases, and you would be appalled at how many companies do not document their inspections. If the inspections are not documented, how can they be sure these vital protections against dangerous conditions are actually being implemented? A company cannot be on notice of dangerous conditions with enough time to remedy them before someone gets hurt if they are not ensuring that reasonably measures are being employed to maintain their premises in a reasonably safe condition.

Other areas you want to explore in this context include attacking the common defense that inspections do not need to be documented because employees are trained to be constantly on the lookout for dangerous hazards. When faced with this defense, it is a good idea to ask the employees during their depositions specifically what they are looking for without feeding them the answers. You will also want to ask them who verified that they performed inspections with the goal of identifying these potential hazards. Was someone keeping track? This can prove that they were not even trained on what to look for that could pose the same risk that was the cause of your client’s incident, or that no one was accountable for making sure the inspections were performed.

Another typical scenario that you will want to explore are employee handbooks. Most employee handbooks have something in them about safety protocols, inspections and common hazards that pose safety risks. If the handbook you receive includes a phrase such as, “safety is our number one priority,” use that statement over and over in depositions. Get the PMK and the manager to agree that safety is the number one priority, and then attack with all the areas they failed to ensure safety in your case. Depose the employees who were on duty that day and inquire as to whether they actually read the manuals, and whether they signed them. Ask them whether anyone ensured they read the manuals. Did they follow the protocols? Were there days when they did not due to staffing issues or other issues that arose? How accountable were the managers in ensuring the inspections were performed?

“Of course you knew…”

As you can see, discovery is of vital importance when proving notice. In Ms. Mikaelian’s case, discovery unearthed that Glendale Galleria was one half of the liability equation. Glendale Galleria was, in fact, put on notice that the oil spills were a problem. An email was produced in discovery (likely to show that Glendale Galleria was addressing the problem) between Glendale Galleria and an individual who owned the grease bins.

The problem was reported, and the individual who owned the grease bins performed an inspection of the grease bins. He found that the grease bins were in fact not leaking and therefore not the problem. He concluded that the food court employees were improperly disposing of the used grease such that it would spill onto the floor. What else did discovery reveal? They did nothing about that problem. The argument at trial was that anyone who went to that room to dispose of trash was doing so at the risk of slipping and falling on this grease, as naturally happened to one unfortunate Ms. Mikaelian. The point here is that you must dig. Dig until you find the needle.

What discovery also unearthed was that the janitorial company would regularly clean that floor. However, they were cleaning the floor using water, and we all know that water does not dissolve oil. They did not use the proper products to dissolve and clean the oil, so what was left was a floor that had been washed with water, with oil remaining. Their cleaning did not address the dangerous condition that everyone knew about. So, what the jury had was knowledge of the dangerous condition on both defendants, and nothing done by Glendale Galleria, and nothing done by the janitorial company to adequately remedy the problem.

The defense expert witness

The defendants attempted to combat this notice “grenade” with their expert, who testified that while there were no documented inspections, inspections must have been performed because that’s what businesses of this type regularly do. He also testified that the standard of care is whatever the company establishes is the standard of care.

The same expert testified that, to comply with a business’s duty of reasonable care, there must be three things satisfied: there must be accountability (someone tasked with the responsibility of performing inspections), frequency (interval or timing of how often a person is actually doing the inspections/cleaning) and verification (the manager or person responsible must be verifying this is being done) with respect to maintenance procedures.

Interestingly enough, that very defense expert was the plaintiff’s expert in a case called Ortega v. K Mart Corp. (2001) 26 Cal.4th 1202. This case essentially established the standard of care with respect to inspections. In Ortega, the expert found that these things were not satisfied, and since no one could answer the question as to how long the dangerous condition existed prior to the incident, the standard of care was breached. The ultimate holding of the case was as follows: “We conclude that evidence of the owner’s failure to inspect the premises within a reasonable period of time is sufficient to allow an inference that the condition was on the floor long enough to give the owner the opportunity to discover and remedy it. (Id. at 1204). If you cannot prove how long a dangerous condition existed prior to the incident because there are no documented inspections, then you can prove that inspections were not routinely performed leading to the conclusion that the dangerous condition existed for an unreasonable amount of time.

Digging deeper into the expert’s analysis that was contradictory to the Ortega case, it is noteworthy that shortly after the Ortega case, the expert wrote an article in which he said, “In evaluation of the adequacy of the maintenance procedure, the question must be asked: ‘Who cleaned or inspected the floor last, and when was it done prior to the incident?’ If this question cannot be answered, then the maintenance procedures were inadequate and below the standard of care. (Emphasis added). In terms of determining the length of any substance or debris on the floor, the conclusion can be made that it was there for an unreasonable amount of time.”

When explaining this in the Mikaelian trial, he stated that the industry has changed, there are people hired with the sole responsibility of cleaning and inspecting, and verification is completed if they simply show up to work. Aside from the obvious deficiencies associated with this analysis, many companies assign inspections and cleaning to employees who have other responsibilities. Without written verification of the completion of inspections and cleaning, and especially in circumstances of understaffing issues, how can a company prove that the premises is being made reasonably safe? They can’t.

In Ms. Mikaelian’s case, there was no one who could testify about how long the oil had been on the floor prior to the incident and no one to testify about any inspections being performed around the time of the incident. Nonetheless, the defense expert testified that the defendants complied with the standard of care. This was not well received by the jury.

Finally, on the issue of experts, it is imperative that you retain a qualified expert who can testify as to the standard of care for inspections. Specifically, you want to know the frequency of those inspections tailored to your case. Grocery stores will be required to implement inspections at a higher frequency than a shoe store. A lot of it hinges on how likely it is for that industry that the dangerous condition your client suffered from will be present in that facility. “A store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved.” (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 448.)

Summary

When proving notice, focus on the discovery phase. Hire the appropriate and qualified expert. Get the inspection done as soon as possible. Send the preservation of evidence letters immediately. Obtain the surveillance footage for hours before and after the incident. Propound the discovery to unearth all prior and subsequent incidents, all inspections performed and all documentation associated with those inspections, all employees that were on duty on the day of the incident, the manager that was on duty on the day of the incident, all employee handbooks and training videos (and any other training materials they use), and all policies and procedures regarding safety protocols. Take the depositions of the employees, the managers and the persons most knowledgeable. Proving constructive notice is not for the lazy lawyer, but if you follow these steps, you will likely find the needle in the haystack.