Stores were negligent in their practices if the danger had been there for a while, eg dirty floor broken jars case
Some states but not all, Stores will not be liable UNLESS you can prove length of time that danger was there
Business practice rule Vermont,
If business practice (like store with produce out) creates reasonable risk of harm then the defendant (store) has the burden of showing adequate steps were taken to avoid the risk (plaintiff does not have to show constructive notice)
Chiara It will apply if you can reasonable assume hazardous conditions will regularly arise, courts that adopt this can spread from produce stores, to the pizza parlor salad bar, Kmart Palattes, can keep expanding, then the exception becomes the rule if it is allowed to continue
Traditional Rule of Constructive notice has two alternatives
- Business Practice
- Mode of Operation
How does the federal court apply the Vermont Law???
Plaintiff says method of merchandise (bird seed bins) creates a reasonable method of harm
Court refuses to apply the Vermont business practice rule
Self service in general is not enough to prove, the product being served needs to create the risk.
Alternative to bus prac rule is the Mode of Operation rule (Different Jurisdiction)
Must be able to reasonably anticipate that hazzardous conditions will regularly arise
Lanier v. Wal-Mart – Employees deposed that spills of creme rinse regularly occurred.
Hazardous conditions are surely to regularly arise in every aisle of the supermarket
Should constructive notice be removed because of this risk? Because produce, pizza parlor, boxes cases all did
This would be similar to strict liability
Suppose a jury would find that a reasonable super market would inspect aisle every 30 min
But the store inspected every 1 hour
Say the banana peel fell to the ground right after inspection and the customer then slipped on it. (even if they had inspected every 30min then the P still would have fell)
Did the negligence cause the injury? NO, therefore no casual link between the negligence and the accident
This is sort of like strict liability, because you are imposing liability when the negligence didnt cause the accident.
Res Ipsa Loquitor
- the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence
- it must be caused by an agency or instrumentality within the exclusive control of the defendant
- it must not have been due to any voluntary action or contribution on the part of the plaintiff
Byrne v Boadle
Byrne walking past store, is hit in the head by a barrel and knocked out cold.
It is the duty of persons who keep barrals in a warehouse to keep the barrels secure. The barrels could not roll out unless someone was negligent
Some jurisdictions creates a mere inference, if the elements are met the jury will be told that they CAN but NEED NOT infer that negligence was present
California gives more wieght to Res Ipsa, creates an assumption affecting the burden of producing evidence. The jury will be told to find Negligence, unless def has produced enough evidennce that they might not be negligent : no evidence or less than might, then they were negligent.
At the time of Escola, cases dont make law, it is just reasoned from precedent but its not law.
No liability without fault.
Judges arernt lawmakers and dont use policy
OLD FASHIONED VIEWS