During the coronavirus pandemic, most grocery stores have gone to great lengths to protect customers and employees from infectious diseases. But when it comes to floor and walkways safety, many of these retailers have been less diligent. Every year, grocery stores spend about $450 million to resolve slip and fall claims. Much of this money goes to fund out-of-court settlements.
The Bluegrass State probably sees more victim-friendly grocery store slip-and-fall settlements than many other states. As outlined below, Kentucky’s laws are generally stacked against insurance companies and their attorneys, at least in the grocery store fall context.
Nevertheless, most insurance companies fight such claims tooth and nail. So, without an experienced Lexington personal injury lawyer in your corner, it’s almost impossible to obtain fair compensation for serious injuries. This compensation usually includes money for economic losses, such as medical bills, and non-economic losses, such as pain and suffering.
Duty of Care
All negligence claims begin with a legal duty. In the grocery store slip and fall context, the extent of the duty usually depends on the relationship between the victim and owner.
Most grocery store slip and fall victims are invitees. These individuals have direct or indirect permission to be at the store. Usually, this permission is indirect (i.e. responding to an “open for business” sign). Additionally, because of their mere presence, invitees benefit owners. This benefit could be financial or non-financial.
In these situations, the owner has a duty of reasonable care. This duty requires the owner to ensure floor safety and frequently inspect the premises to ensure this standard is maintained.
Licensees are visitors who have permission to be on the property, but there is no benefit to the owner. Children who cut across grocery store parking lots on their way home from school are usually licensees.
Since the relationship is more distant, the duty is lower. Generally, owners must only warn licensees about latent (hidden) defects, such as a loose handrail. Warning signs only satisfy this duty in certain situations. More on this concept, which is commonly called assumption of the risk, is below.
If the victim was a trespasser, meaning there was no permission and no benefit, the owner generally has no duty. Tales of injured burglars who sued homeowners for damages are mostly urban myths.
Knowledge and Control
Legal duty is typically a question of law. Knowledge and control are fact questions which the jury must resolve. Victim/plaintiffs must establish both elements by a preponderance of the evidence (more likely than not).
Owners are only liable for fall injuries if they knew, or should have known, about the hazard which led to the fall. Direct evidence of actual knowledge includes things like “cleanup on aisle seven” announcements, restroom cleaning reports which indicate fall hazards, and previous falls on certain parts of the property.
Circumstantial evidence of constructive knowledge (should have known) usually involves the time-notice rule. If the hazard existed for more than a few minutes, an employee should have known about it and corrected it.
Control is normally only an issue in sidewalk, parking lot, and other outdoor falls which occur at grocery stores in mini-malls or shopping malls. Typically, the grocery store controls the immediate area outside its doorway. A property management company usually controls common areas, such as a parking lot far away from the supermarket.
Until 2010, the open and obvious defense reigned supreme in grocery store slip and fall claims. Anything other than a clear liquid wet spot was an open and obvious hazard. In these instances, the grocery store was not liable as a matter of law.
But the Kentucky Supreme Court has sharply limited the open and obvious defense. Now, it is little more than an offshoot of comparative fault.
Contributory negligence shifts blame for the fall from the owner to the victim. Pre-existing conditions, like a bad hip which restricts mobility, are not part of the equation. Instead, contributory negligence is essentially a “watch where you’re going” defense.
The jury divides fault on a percentage basis in these situations. Kentucky is a pure comparative fault state. Even if the victim was 99 percent responsible for the fall, the owner is liable for a proportionate share of damages.
If the owner displayed a “Caution: Wet Floor” or another warning sign, the assumption of the risk defense might apply. This legal loophole excuses liability if the victim voluntarily assumed a known risk. This defense often hinges on whether the victim saw the sign, could read the sign, and could understand what it meant.
Grocery store falls often cause serious injuries. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. Attorneys can connect victims with doctors, even if they have no insurance or money.