Puddle on Floor for Three Minutes Creates Jury Issue on Notice

In Beverly v. Hardee’s Food Systems, LLC, No. E2014-02155-COA-R3-CV (Tenn. Ct. App. June 15, 2015), the Court of Appeals overturned summary judgment in a premises liability case based on the plaintiff’s potential ability to prove constructive knowledge of the dangerous condition. Here, plaintiff frequently dined at the restaurant in question. On one particular day, he came in through the side entrance to the restaurant and slipped in a puddle of vomit 19 seconds after entering. Apparently a child had vomited on the floor, and the child’s mother had not cleaned up the vomit or notified any employees. When plaintiff slipped, he was walking towards a table of his companions. These companions had seen or knew about the vomit but had also not notified any employees.

Security footage from the restaurant established that the vomit was on the floor for 3 minutes and 11 seconds before plaintiff fell. It also showed that plaintiff looked at the ground 2 seconds before he fell. The video showed that no employee was in the area of the vomit before the fall, but evidence established that “the service counter was less than 20 feet from where the child vomited and [plaintiff] fell.”

According to testimony from a witness, the vomit was in view of the employees at the service counter and “to anyone walking in the general area.” He said the puddle was approximately 12 to 15 inches in diameter. The manager of the restaurant testified that she did not know when the dining area was last inspected before the fall and that employees were “instructed to serve customers before completing any secondary tasks like cleaning.” The manager stated that employees were supposed to inspect the restaurant hourly or as permitted.

Based on all the evidence presented, the trial court granted defendant restaurant summary judgment, finding that “the evidence presented by Plaintiffs was insufficient to establish constructive knowledge on the part of the Defendant.” The trial court highlighted the fact that the dangerous condition “had only existed for three (3) minutes and eleven (11) seconds during which time its employees who might have been able to observe the condition were busy in the performance of their job duties serving other customers.” The Court of Appeals, however, overturned this ruling.

The Court pointed out that plaintiff here was relying on constructive notice based on the condition existing “for such a long period of time that the employees should have become aware of the condition.” The Court stated that in addition to time, “one must also consider the nature of the business, its size, the number of patrons, the nature of the danger, and its location along with the foreseeable consequences.” (internal quotation and citation omitted). Based on these factors, the Court determined that plaintiff here could potentially establish constructive knowledge. The Court specifically noted that the parties “knew exactly what caused the dangerous condition and the exact amount of time the condition existed prior to the fall. Additionally, numerous factors, e.g., the nature of the business, the revolving number of patrons, and the nature of the danger, its location, and foreseeable consequences, support the claim that Defendant could be charged with constructive notice of the dangerous condition.”

The Court also briefly addressed defendant’s assertion that it had no duty to warn plaintiff because the danger was open and obvious. In rejecting summary judgment on this basis, the Court found that “[h]ere, the foreseeability and gravity of harm outweighed the feasibility and availability of alternative conduct, namely performing regular inspections of the dining area rather than only performing inspections when patrons were not awaiting service at the service counter. We, like the trial court, believe that reasonable minds could differ as to whether [plaintiff] should have seen the substance on the floor in time to avoid the dangerous condition.” The Court pointed out that plaintiff was a regular customer at this restaurant and that testimony had established that the employees were usually quick to clean up spills, implying that plaintiff would not have known to be on the lookout for puddles. Accordingly, the trial court was correct in refusing summary judgment based on the “open and obvious” nature of the dangerous condition here.

This was definitely the right result in this case. There is no bright line rule for how long a dangerous condition must exist to establish constructive notice. In many cases the origin of the dangerous condition cannot be identified and, therefore, a clear timeline regarding how long the condition existed cannot be established. In a case like this, though, where evidence established exactly how long a puddle of vomit was on the floor of a restaurant, whether an employee should have discovered the puddle should be considered a question of fact. While 3 minutes might seem like a short time in some settings, in a small restaurant with a service counter within view of the hazard it might be considered enough time to establish constructive notice. This should have been considered a question of fact, making summary judgment inappropriate in this case.

Look for a Rule 11 application to be filed.