A common point of contention in slip-and-fall cases is whether or not the business owner had “constructive knowledge” of the hazard that injured the customer. Constructive knowledge is not the same thing as actual knowledge. In other words, let us say a customer slips on a puddle of water in the aisle of a supermarket. It is likely that the store’s management did not actually know there was a spill beforehand. But the store owner may still be legally liable if the customer can prove that management “should have known” there was a spill through the exercise of due diligence.
Put another way, if the store had no policy in place to regularly inspect the aisles for potential hazards–or the employees failed to follow such an inspection policy–that can be sufficient to prove “constructive knowledge” on the part of the owner.
Orr v. Macy’s Retail Holdings, Inc.
Recently, a federal judge in Savannah addressed the legal threshold for constructive knowledge in a case in which the plaintiff sustained injuries after the door to a department store fitting room came apart and struck her in the arm, shoulder, and foot. We actually discussed a previous ruling in this same case approximately two years ago. The issue then was the defense’s request to subpoena the plaintiff’s social media history in an attempt to discredit her injury claims.
In this most recent ruling, the judge denied the department store’s motion for summary judgment, i.e. to end the case without conducting a full jury trial. The defense argued that the plaintiff failed to present sufficient evidence establish the defendant’s constructive knowledge of the defective fitting-room door. The department store pointed to its own “established procedures” that required managers to perform, “monthly, in-depth fitting room inspection,” which included an examination of “stall doors for proper operation” and “walls and stalls for damage.”
The plaintiff replied that these inspection procedures “can not be considered reasonable because they did not specifically address the inspection and maintenance of fitting room structures,” which is at the core of the plaintiff’s complaint. Even if the store’s procedures were themselves reasonable, the evidence suggested the employees did not follow them. The judge agreed that the plaintiffs identified “several deficiencies” that could lead a jury to find the store’s “policies, procedures, and employee training were neither adequate nor adhered to.”
The judge did, however, rule in the defense’s favor on some other pre-trial motions. For instance, the judge rejected the plaintiff’s demand for punitive damages. As a general rule, Georgia law does not permit the recovery of punitive damages in premises liability (slip-and-fall) cases unless there is proof “that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” Here, the judge said “a collapsing fitting room” simply did not rise to the level of a hazard warranting punitive damages.