Court Finds No Notice Of Dangerous Condition Or

Unsafe Condition Created By Permitting Food Sampling

As part of our continuing commitment to provide outstanding representation and to serve as an information resource, we wish to inform you of a recent decision on notice in a slip and fall case.

With most slip and fall cases, notice is always an issue.  As we know, notice may either be actual, or as most often in cases, constructive.  In Massaregli v. Costco Wholesale Corporation, ("Costco") a case which our firm defended, the Court found neither constructive notice, nor that Costco had allowed a dangerous condition to exist by allowing food sampling. 

In Massaregli v. Costco, the plaintiff had grabbed a case of water from a stack of cases resting on a pallet and was about to place it inside her shopping cart, when she took one step forward and her foot slipped.  The plaintiff fell and the case of water fell on top of her shoulder, injuring her.  According to the plaintiff, she was helped up by an unidentified male shopper who was with three young children who were all eating food at the time.  The plaintiff looked to the ground and saw what appeared to be a "smashed up food" item, which she could not identify.  It was about the size of her shoe.

In the nearby vicinity where she fell, according to plaintiff, was a food sampling station about 3 feet away where someone was giving out food samples.  There were several people in the area eating the samples.  After the fall, plaintiff's son completed an incident report.  The incident report made no mention of a food sample as the cause of the accident.  Although the Costco assistant manager could not recall if there was a food sampling station in the vicinity where plaintiff fell on the day in question, she did confirm that an outside vendor did food sampling.  The assistant manager also testified that Costco employees conduct hourly inspections to check for safety issues such as spills.  According to the assistant manager, the inspection reports indicated that no hazards were found in the area where plaintiff fell on the date of the accident before it occurred.

Costco moved for summary judgment, arguing that plaintiff had failed to demonstrate that Costco had constructive notice of the existence of the dangerous condition.  The Court found that Costco established its prima facie entitlement to judgment by demonstrating that it neither created nor had actual or constructive notice of the condition.  This was based on evidence that frequent inspections for debris and tripping hazards were performed by the store's employees on the date of the accident and prior to the accident.  In addition, the Court wrote that "the plaintiff failed to raise a triable issue of fact as to whether the defendant created or had actual or constructive notice of the condition as plaintiff submitted no proof of the length of time that the condition that is alleged to have caused the accident - food on the floor - was present".  The Court found that the evidence was just as consistent with the finding that someone had dropped the food on the floor and stepped on it shortly before the plaintiff slipped.

The Court also rejected the plaintiff's contention that Costco had created an unsafe condition by permitting food sampling to take place in a narrow and confined area where shoppers were traversing.  The Court concluded "in the absence of proof that the defendant created the dangerous condition which caused (plaintiff's) fall or had actual notice of the condition, and the absence of evidentiary facts from which a jury could infer constructive notice from the amount of time the dangerous condition existed, the complaint must be dismissed".

In any slip and fall case, it is always important to Marshall the facts so as to present the best possible set of facts that the defendant did not have constructive notice of the condition.  If this can be done, then a motion for summary judgment should be made.

Should you have any questions, please call.

Thomas M. Bona