As a business owner, imagine this very common scenario – A young woman with two small children in tow enters your business establishment in order to complete her last business transaction of the day. The young woman successfully completes her business transaction and hurriedly exits your establishment, passing in the doorway an elderly gentleman who is your next customer. As the elderly gentleman walks across the floor of your business, he slips and falls in a spot of clear liquid that, unbeknownst to you, spilled from the cup of one of the children.
Traditionally, in order to prevail in a “slip and fall” case such as this, the elderly gentleman would be required to prove that the business owner or his employees either caused the foreign substance to be on the floor, or by the exercise of reasonable care, could have discovered the foreign substance and either removed it or warned of its presence prior to the fall. Absent proof that the business owner or his employees caused the foreign substance to be on the floor, the injured customer is faced with the burden of proving how long the substance had been on the floor before the accident and whether that was a sufficient length of time for notice and correction to have taken place. The Kentucky Supreme Court has found that this is a daunting and virtually insurmountable burden of proof for the customer, especially in light of the fact that it is the duty of the business owner to keep his premises in a reasonably safe condition for normal use by his customers.
In an attempt to balance the competing principles of customer notice versus business owner duty, the Kentucky Supreme Court made the determination to shift the burden of proof. Now, in the case of a slip and fall by a customer on a business owner’s premises, the customer must still prove that there was a foreign substance on the floor and that such foreign substance was a substantial factor in causing the accident or injury. However, once such proof has been presented, the burden then shifts to the business owner to prove that neither the owner nor his employees caused the foreign substance to be on the floor and that there had been an insufficient length of time in which to have discovered and removed the foreign substance or warned of the presence of the foreign substance prior to the accident.
The Kentucky Supreme Court found that both logic and fairness mandate that, as between two apparently innocent parties, one being a business proprietor having a duty to maintain his premises in a reasonably safe condition for the use of his customers, and the other being the invited customer, the burden of proof with respect to the cause of an unsafe condition of the premises should be on the one with the duty to prevent it.
The intent of the Kentucky Supreme Court was not to make business owners an insurer against all accidents on the premises. Rather, its intent was to require the business owner to prove the absence of negligence by demonstrating that the business owner exercised reasonable care in attempting to discover a foreseeable dangerous condition and to correct that condition or to warn its invited customers of the existence of the condition.
Cathy Stickels is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.
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