Fall-Down Case Goes to Jury

Just because a plaintiff’s actions may have arguably contributed to creating a dangerous condition does not mean summary judgment for defendant is guaranteed in a premises liability case.

In Rader v. Ruby Tuesday, Inc., No. E2016-01677-COA-R3-CV (Tenn. Ct. App. Aug. 18, 2017), plaintiff had called in a catering to-go order to defendant restaurant. The order was called in the day before and included at least one bag of ice. Per plaintiff’s normal practice when ordering catering, she gave the restaurant a pick-up time earlier than she anticipated arriving to ensure that the food would be ready. On the day of the accident, plaintiff called the restaurant when she “got off the exit,” then worked her way through “stop and go” traffic. Upon her arrival, she gave her credit card to the manager and was told the food was on the ledge. When she picked up the bags, including the bag containing the ice, water fell onto the floor and plaintiff slipped and fell. The parties agreed that there was no water on the floor when plaintiff entered and that the water came from ice that had melted and/or created condensation in the bag. Plaintiff testified that when she felt the bag of ice, it was “all water.”

Plaintiff filed this premises liability suit, and defendant moved for summary judgment. In a deposition submitted in support of summary judgment, defendant’s manager had testified that “condensation from the bag of ice that…dripped on the floor” was the cause of plaintiff’s fall. He further stated that he “assisted with setting out Plaintiff’s order” to make sure it was “ready at the time due.” He testified that the food, including the ice, “sat out for quite a while” and that plaintiff was in a hurry when she came in to pick-up the food.

In opposition to the summary judgment motion, plaintiff submitted an affidavit from a person in catering and food service who stated that defendant “was negligent…in keeping a bag of ice outside at room temperature…for a significant period of time because this would cause the ice bag to accumulate condensation and cause the ice to melt which is a safety risk…” Further, the affidavit stated that the “industry norm” for ice on a take-out order was to store the ice in a freezer until the customer arrived for pick-up. In addition, plaintiff relied on testimony from an operating partner for defendant, who stated that restaurants were kept at 72 degrees, and that “a bag of ice left at room temperature would melt, produce water, and form condensation that could drip.” This witness stated that it was normal procedure for defendant restaurant to place ice with the food when the order was “supposed to be picked up.”

The trial court granted summary judgment to defendant and “found that the injury-causing condition was the actual water on the floor of the restaurant, not the bag of ice that had been sitting on a shelf melting which allowed water to condense on the bag.” Because “the water did not drip on to the floor of the restaurant until Plaintiff picked up the bag of ice,” the trial court determined that defendant “could not have had knowledge of the injury-causing condition prior to the accident because the injury-causing condition, water on the floor, did not occur until Plaintiff picked up the bag of ice.” Further, the trial court held that defendant “did not have a duty to warn Plaintiff that the bag of ice might drip when it was lifted because the condition of the bag of ice was equally available to be noticed by both [defendant] and the plaintiff.” On appeal, summary judgment was vacated.

When analyzing whether a duty exists in a premises liability case, “the court must balance the foreseeability and gravity of the potential harm to a plaintiff against the burden imposed on the defendant in protecting against that harm.” (internal citation omitted). Even if the dangerous condition is “open or obvious,” a premises owner may still have a duty:

That a danger to the plaintiff was ‘open or obvious’ does not, ipso facto, relieve a defendant of a duty of care. Instead, the duty issue must be analyzed with regard to foreseeability and gravity of harm, and the feasibility and availability of alternative conduct that would have prevented the harm. …[I]f the foreseeability and gravity of harm posed from a defendant’s conduct, even if ‘open and obvious,’ outweighed the burden on the defendant to engage in alternative conduct to avoid the harm, there is a duty to act with reasonable care.

(internal citation and quotation omitted).

Here, the Court rejected the trial court’s findings, holding that “the trial court defined the dangerous or injury causing condition too narrowly.” The Court stated:

The dangerous or injury-causing condition was not just the water that fell on the floor after Plaintiff picked up the bag of ice. The dangerous…condition included the partially melted bag of ice with condensation on it waiting to be picked up by Plaintiff. It was this condition of the bag of ice that caused the water to fall on the floor when Plaintiff picked up the bag of ice. The undisputed facts show that only [defendant] and not Plaintiff had actual knowledge of how long the bag of ice had been sitting out at room temperature before Plaintiff arrived to pick up her order. We must balance the foreseeability and gravity of the potential harm to a customer such as Plaintiff if a bag of ice is left at room temperature ‘for quite a while’ and then drips water on to the floor when picked up by the customer against the burden imposed upon [defendant] to protect against such foreseeable harm. [Defendant] could have protected against such harm either by leaving the bag of ice in a freezer until the customer arrived or by warning the customer that the bag of ice might be dripping… The foreseeable probability and gravity of harm outweighs the burden on [defendant] to have taken steps that would have prevented the harm. …Thus, we hold that [defendant] did have a duty to Plaintiff.

Defendant asserted that despite the existence of a duty, summary judgment was nonetheless appropriate because “reasonable minds could conclude only that Plaintiff’s fault was fifty percent or greater.” The Court rejected this argument, noting specifically that defendant was the only one who knew how long the ice had been out and that “a reasonable trier of fact could find that plaintiff was justified in expecting that the bag she picked up was un-melted ice and that plaintiff was less than fifty percent at fault for picking up the bag without examining it to determine if the ice had melted causing condensation on the bag.”

Defendant also argued that public policy dictated affirming summary judgment, as denying summary judgment “would be to suggest that there is a legal duty to warn that ice melts and can develop condensation when placed in a plastic bag,” and that adopting such a holding “would create a law that mandates a restaurant must disregard the specific requests a customer makes regarding pick-up and/or affirmatively warn all customers that ice can melt.” The Court rejected this argument as well, stating that all its holding meant was that defendant “was in a superior position to know that the bag of ice involved in the accident had been sitting out at room temperature for quite a while.” The Court said that requiring a business to “either keep the bag of ice in a freezer until plaintiff arrived or to warn plaintiff that the bag of ice had been sitting out…and, therefore, could drip water…impose[d] neither an onerous nor a ridiculous burden upon [defendant].”

Having found that a duty existed, and having rejected defendants’ additional arguments, summary judgment was vacated.

The Court of Appeals correctly analyzed this case, focusing less on who was the last to touch the ice bag and more on who had knowledge that the ice bag could be dangerous. Plaintiff had clearly presented sufficient evidence to move past the summary judgment stage here.

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