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Magazine rack at checkout determined not a “dangerous condition”

Where plaintiff alleged that a magazine stand at a grocery store checkout was a dangerous condition, but she had no evidence regarding how long the condition had existed and no proof that the magazine stand had caused any other falls, summary judgment for defendant was affirmed.

In Lyon v. Castle Retail Group, LLC, No. W2019-00405-COA-R3-CV (Tenn. Ct. App. April 14, 2020), plaintiff filed a pro se premises liability action after falling in defendant’s grocery store. Plaintiff alleged that the metal foot of a magazine display rack was “protruding from the base of [the rack] in the checkout area,” and that she caught her foot on the metal, causing her to fall. After plaintiff’s fall, her companion returned to the store and took pictures of the magazine rack. He also took pictures of the rack in the years following plaintiff’s fall.

Defendant filed a motion for summary judgment asserting that it had “no actual or constructive notice of the magazine display rack’s potential to cause injury” and that “Plaintiff’s injury was not foreseeable.” The trial court granted summary judgment, and the Court of Appeals affirmed.

In premises liability cases, a plaintiff must show that the defendant had actual or constructive notice of the allegedly dangerous condition. “Unless the defendant has actual or constructive notice of a dangerous condition on its premises, it does not owe a duty to warn of or remove the dangerous condition.” (internal citation omitted). As there was no allegation of actual notice in this case, the issue was whether defendant had constructive notice of a dangerous condition caused by the magazine rack.

Plaintiff first argued that “the display rack’s dangerous condition existed for such a length of time that Defendant, in exercising reasonable care, should have noticed it.” To support this assertion, plaintiff relied on the photos taken after her fall. These photos, however, were irrelevant to the question of how long the condition had existed before plaintiff’s fall. Defendant was not aware of any previous accidents due to the racks, and plaintiff failed to present any evidence regarding how long the foot of the rack had protruded into the checkout area. The Court stated:

Without an approximate timeframe establishing how long the metal stuck out into the aisle, Plaintiff cannot establish that Defendant had constructive notice of it protruding as a dangerous condition. …Similarly, Plaintiff’s claims that the piece of metal remained protruding into the aisle after she fell only establish constructive notice for subsequent accidents in Defendant’s store.

(internal citation omitted).

Plaintiff also argued that “all of the magazine display racks in Defendant’s store collectively show a ‘pattern of conduct’ or ‘general continuing condition’ that created a dangerous condition,” but the Court ruled that plaintiff did not produce evidence to support this allegation. The Court distinguished this fact pattern from two cases cited by plaintiff, then explained:

Plaintiff’s trip and fall appears to be a random occurrence, which is insufficient to establish constructive notice. …There is no evidence that shows Defendant’s use of its magazine display racks was a ‘pattern of conduct, a recurring incident, or a general or continuing condition’ sufficient to put Defendant on constructive notice of a dangerous condition. Again, Defendant was not aware of, and there is no evidence tending to show, previous trips and falls due to the magazine display racks in its stores. …Plaintiff’s photos of the magazine racks in the years following her accident that show a ‘continuous hazardous condition’ have no bearing on the condition of the magazine rack she tripped on nor do they aid in showing that her injury was foreseeable. …While it is unfortunate Plaintiff suffered injuries as a result of her fall, a single accident, on its own, does not establish foreseeability in a negligence case.

(internal citations omitted). Summary judgment was accordingly affirmed.

As is often the case in slip and fall cases, plaintiff’s claim failed because she didn’t have evidence to show notice. When evaluating a premises liability case, it’s important to remember that evidence of a fall alone is not enough to sustain a claim.

Note:  this opinion was released by the court three months after oral argument.

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