MEMORANDUM

TO: Tina Schlievert, A.C.P. FROM: Brandi Hintze DATE: 6/19/2012 RE: Analysis of Liability of Kroger Grocery Store in Slip and Fall Case ______________________________________________________________________________ Statement of Assignment You asked me to review the facts of Ms. Boarders case to determine whether or not case law would support finding Kroger liable for negligence for the injuries Ms. Boarder alleges she sustained while shopping at their store. Questions Presented In considering whether Kroger Grocery Store was negligent and therefore liable for injuries and damages sustained by invitee Lori Boarder when she slipped on grapes and fell on the floor of the store, the following questions must be answered: 1. Were the grapes on the floor long enough to substantiate constructive notice or create a duty to warn invitees of the danger? 2. Will the clients refusal to participate in the incident report be an issue? 3. Does the open and obvious doctrine apply?

Short Answer 1. Yes. A store can be considered negligent if an invitee meets at least one of three requirements of the three-pronged premises liability doctrine which has been established through cases such as Schon v. National Tea Co., 28 Ohio App. 2d 49 (Ohio Ct. App., Mahoning County 1971) and Fields v. Kroger Co., 1991 Ohio App. LEXIS 420 (Ohio Ct. App., Defiance County Jan. 15, 1991). 2. Probably not. It isnt realistic to expect someone in great pain to answer questions which arent essential to them at that moment. In addition, incident reports are frequently excluded as exceptions to the hearsay rule or inadmissible under the Ohio Rules of Evidence. 3. Maybe, but not likely. Case law has established that the open and obvious doctrine applies where an invitee should be watchful for a hazardous condition which is obvious and expected to exist. Sidle v.. Humphrey (1968), 13 Ohio St. 2d 45 [42 O.O.2d 96]. It is arguable that an invitee of a food store should expect to find a hazard due to food on the floor, especially if its food which the store is selling for consumption. Facts On April 5, 2010, Lori Boarder was shopping with her three young children in the produce department of Kroger Grocery Store. Lori did not see a bunch of red grapes which were knocked onto the floor by a customer approximately twenty minutes earlier. Lori slipped on the grapes. A produce employee who was in the department saw Lori fall and called for the manager, who quickly arrived. The manager attempted to fill out an incident report but Lori was

in great pain and declined to answer any questions related to the report. Lori sustained significant physical injuries, was transported to Toledo Hospital by ambulance, and remained in the hospital overnight. Discussion Constructive Notice and/or a Duty Created To prove Kroger is liable, the invitee must meet at least one of the three requirements of the rule of Premises Liability: that the store owner or its employee put the substance or item on the floor; or that the store owner or one of its employees had actual knowledge of the presence of the substance or item on the floor, but failed to remove it or to warn the invitee; or that the substance or item was on the floor long enough for the store owner to have constructive notice of its presence, thus creating a duty to warn invitees or to remove it. 76 Oh Jur Premises Liability 54 Litter, Debris, Or Other Foreign Substances on Floors: In this case, Lori establishes liability by meeting the second and third criteria. With regard to the second criteria, it can be shown that one of the store employees had knowledge of the hazard presented by the grapes on the floor but did not remove the grapes or warn Lori. An employee was stocking apples in the produce department while Lori was shopping in the same department and ultimately fell on the grapes. Reasonable minds can presume that the same vantage point which enabled the employee to fully witness Loris fall would also enable the employee to see the grapes on the floor. A conclusion can be confidently drawn that the employee had knowledge of the grapes on the floor but did not warn Lori or do anything to remove them.

Having knowledge of a hazard but failing to warn an invitee or remove the hazard is a necessary element in proving the store owners negligence. This element was proven essential in the case of Schon v. National Tea Co. in which the trial court erred when it ruled in the grocers favor in a slip and fall case. Upon appeal, the court reversed the ruling because at least one employee was aware of grapes on the floor of the store but did nothing to remove them or warn the appellant of the danger. Loris case also satisfies the third requirement of premises liability. Even if it could not be reasonably inferred that an employee was aware of the hazard but did nothing to remove it or warn shoppers, it can be shown the hazard was on the floor long enough that the store owner had constructive notice of its existence and therefore had a duty to warn shoppers or remove the hazard. In Fields v. Kroger Co., the trial court erred when it found there had been no constructive notice about a grape in an aisle near the produce department when Fields slipped and fell on the grape. The appellate court reversed the trial courts decision by reasoning that 15-20 minutes could indeed be enough time for a store owner to be on constructive notice of a hazard. In Loris case, it has been established that the bunch of grapes were on the floor for approximately 20 minutes which is enough time to constitute constructive notice. To emphasize the necessity of the invitee proving a store had direct or constructive notice of a hazard, consider the following cases: Harrison v. Andersons, Inc., 2000 Ohio App. LEXIS 2802 (Ohio Ct. App., Lucas County June 23, 2000) and Sharp v. Andersons, Inc., 2006 Ohio 4075 (Ohio Ct. App., Franklin County Aug. 8, 2006). In both of these cases, the courts ruled in favor of the stores because the appellants could not show that any employees had knowledge of

the grapes being on the floor nor could they show where the grapes came from or how long they had been on the floor and thus could not substantiate constructive knowledge. Incident Report The truthfulness of our client stating she was in significant pain can be corroborated by the fact that she remained in the hospital overnight due to her injuries. Reasonable minds would agree that being in considerable physical pain and worrying about their children would preclude most people from being in an adequate or cooperative state of mind to answer questions with potentially legal consequences. Further, an incident report is often considered hearsay, as it was in Koop v. Speedway SuperAmerica, LLC, 2009 Ohio 1734 (Ohio Ct. App., Warren County Apr. 13, 2009), unless it is appropriately incorporated into an affidavit in accordance with Ohio Civ. R. 56. If the documents authenticity cannot be confirmed, sworn to, or certified, it typically will not be admitted as an exception to hearsay because it wont meet the requirements of Ohio Civ. R. 56 regarding the Rules of Court Service. Even if an incident report is appropriately incorporated, a court may decide to still consider it hearsay, as it did in Ogden v. Raymond Corp., 1995 Ohio App. LEXIS 5796 (Ohio Ct. App., Wayne County Dec. 27, 1995). The party utilizing an incident report must establish that the facts of the case coincide appropriately with the facts presented by said party. Otherwise, the incident report can be excluded under Ohio Evid. R. 801 of the Ohio Rules of Evidence.

Open and Obvious The defense may argue from Sidle: A shopkeeper is under no duty to protect business invitees from dangers which are known to such invitee or are so obvious and apparent to such invitee that he may reasonably be expected to discover them and protect himself against them. However, in our clients case, one would not expect to find a bunch of grapes on the floor. The defense may claim the plaintiff contributed to the negligence by not being alert to where she was walking and by being distracted by her quarreling children. We can make the argument that food is not expected to be on the floor if it is expected to be purchased and consumed. Furthermore, products are placed at eye level for optimum sales and such is the inherent merchandising nature of the store that patrons are discouraged from looking on the ground for hazards that cannot be reasonably expected to exist.

Conclusion Upon review of the facts of Lori Boarders case, a court would most likely rule that Kroger was negligent and therefore liable for Lori Boarders injuries which she sustained after slipping on a bunch of grapes in their produce department. Her case satisfies more than one of the requirements of the rule of Premises Liability which are necessary to show liability. Her case is also strongly supported by case law in Schon v. National Tea Co. regarding an employees knowledge of the hazard and also Fields v. Kroger Co. which establishes constructive notice.

Additionally, case law from Harrison v. Andersons, Inc., and Sharp v. Andersons, Inc., shows the necessity of establishing a store owner or employee has direct or constructive knowledge of a hazard and fails to remove it or warn the customer, or else the store owner cannot be held liable for negligence. Loris case establishes direct and constructive knowledge of the hazard and the shows the store failed to exercise reasonable care. Further, the issue of our client not participating in answering the incident report should not be of consequence since as we saw in Koop and Ogden, incident reports are often considered hearsay and are held to strict standards of admissibility. Lastly, we have a strong argument against the open and obvious doctrine in Sidle which stipulates the business owner is not liable for injuries caused by a open and obvious hazard which the invitee should expect to find or can be expected to discover. A customer should not be expected to find the hazard of an immediately consumable food product on the floor of a grocery store, especially when the invitees attention is drawn intentionally away from the floor by the deliberate merchandising of the store. I confidently recommend accepting Ms. Boarders case because it is strongly supported by numerous examples of case law which will establish and ultimately prove our clients claim that Kroger was negligent and therefore liable.