Ortega v. Kmart

Supreme Court of California · Torts

TortsPremises liabilitySlip-and-fallConstructive noticepremises liabilitybusiness inviteestore owner dutyreasonable inspection

Facts

Plaintiff slipped on a puddle of milk on the floor next to a refrigerator in a Kmart store and injured his knee. He had no direct evidence showing how long the milk had been there and could not say whether it appeared fresh, odorous, warm, or cold. Kmart's former store manager testified that employees were trained to look for spills, that the aisle was usually walked every 15 to 30 minutes, but that on the day of the accident management would not have known whether the aisle had been inspected at all. The manager also admitted the milk could have been on the floor for as long as two hours.

Issue

When a plaintiff cannot show the source of a dangerous condition or exactly how long it existed, may the plaintiff rely on evidence that the store failed to inspect the premises within a reasonable period before the accident to support an inference that the condition existed long enough to give the store constructive notice?

Rule

A store owner owes business invitees a duty to exercise reasonable care to keep premises reasonably safe, including making reasonable inspections of areas open to customers. To establish liability for a dangerous condition, the plaintiff must show the owner had actual or constructive notice in sufficient time to correct it, but that fact may be proved by circumstantial evidence. Evidence that no inspection was made within a reasonable period before the accident may support an inference that the dangerous condition existed long enough that a reasonably careful owner would have discovered and remedied it.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

Nina Patel was shopping in a self-service home goods store in Sacramento when she slipped on a puddle of dish soap in a main aisle. No witness knew when the soap first hit the floor, but the store manager testified the aisle had not been checked for at least 70 minutes before Nina fell, even though customers routinely opened and compared bottles there.

If Nina offers no direct evidence of how long the soap was on the floor, which is the strongest argument that she can still reach the jury on constructive notice?

Explanation. A store owner is not an insurer, but must use reasonable care, including reasonable inspections of customer areas. Under the majority rule, a plaintiff may prove duration circumstantially: evidence that the area was not inspected within a reasonable period before the accident permits, but does not compel, an inference that the condition existed long enough to be discovered and corrected. That is enough to avoid judgment as a matter of law and present the issue to the jury.