Ortega v. Kmart Corporation

Court of Appeal of California, Second District, Division One · 2000 · Torts

99 Cal. Rptr. 2d 451 (2000)

Updated July 23, 2026

TortsPremises LiabilitySlip and FallConstructive Noticeinspection dutymerchant liabilitydangerous conditionreasonable inspection

Facts

Plaintiff and his fiancee were shopping in defendant's market when plaintiff placed a carton of milk in his cart and immediately slipped on a puddle of milk in the milk aisle. He suffered significant knee injuries, including ligament tears. Neither side presented evidence showing how long the milk had been on the floor. Defendant's general manager testified that no single employee was responsible for inspecting for spills, all employees were expected to watch for hazards, no written records of spills or inspections were kept, management was not told when inspections occurred, and a spill could conceivably go undetected for two hours.

Issue

When there is no direct evidence showing how long a spill was on the floor before a customer's fall, may a jury infer constructive notice from evidence that the store's inspection and cleanup practices were inadequate? Specifically, can inadequate inspection practices substitute for proof of the duration of the dangerous condition?

Rule

A premises owner is not liable for injury from a dangerous condition of which it had no knowledge unless the condition existed long enough that, had the owner exercised reasonable care in inspecting the premises, it would have discovered the condition in time to remedy it or warn. Under Sapp and Bridgman, evidence that an inspection had not been made within a reasonable time before the accident may warrant an inference that the dangerous condition existed long enough that a person exercising reasonable care would have discovered it; thus, a plaintiff may be relieved of proving exactly how long the substance was on the floor if the plaintiff shows the site was not inspected within a reasonable time.

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

At a self-service discount store in Fresno, Dana Ruiz slipped on a pool of orange soda in the household-cleaners aisle and fractured her wrist. No witness knew when the spill occurred, and the store manager testified that employees were generally told to watch for hazards but no one was assigned to inspect that aisle, no inspection records were kept, and a spill might go unnoticed for up to 90 minutes.

If Dana sues the store for negligence and the store argues she cannot prove how long the soda was on the floor, how should the court rule on whether the case may go to the jury on constructive notice?

Explanation. Under the majority opinion, a premises owner is not liable absent knowledge unless the condition existed long enough that reasonable inspection would have discovered it in time to remedy or warn. But the plaintiff need not prove the exact duration if the evidence shows the site was not inspected within a reasonable time before the accident. Testimony showing no assigned responsibility, no records, and the possibility that a spill could remain unnoticed for a long period supports an inference of constructive notice.