Defects in Stores and Other Commercial Premises

One who operates a store and invites people into his/her premises to transact business must exercise ordinary care to maintain the premises in a reasonably safe condition so that his/her customers will not be unnecessarily and unreasonably exposed to danger[i].

However, a merchant is not required to maintain the premises in such a condition that no accident could happen to a patron using them[ii].

Similarly, a store owner has no duty to warn its invitees of an unsafe condition that is open and obvious to a person exercising ordinary care, one that the business invitee is aware of or should have been aware of through the use of reasonable care[iii].

Although the owner’s lack of knowledge is not a defense, to impose liability for injuries suffered by an invitee due to a defective condition of the premises, the owner or occupier must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises[iv].

To recover damages for injuries caused by a dangerous or defective condition on a storekeeper’s premises, the plaintiff must show either[v]:

  • that the injury was caused by a specific act of the respondent which created the dangerous condition; or
  • that the respondent had actual or constructive knowledge of the dangerous condition and failed to remedy it.

 

A store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved[vi].

A storekeeper is also liable for the negligence of its own employees who fail to keep the store in a reasonably safe condition[vii].  Similarly, the general duty of a store owner to keep the premises in a reasonably safe condition for customers continues while repairs are being made upon the premises[viii].

If a store owner operates a self-service grocery store, where customers are invited to inspect, remove, and replace goods on shelves, the exercise of ordinary care may require the owner to take greater precautions and make more frequent inspections than would otherwise be needed to safeguard against the possibility that such a customer may create a dangerous condition by disarranging the merchandise and creating potentially hazardous conditions[ix].

The owner of a store or other commercial premises not only must maintain his/her premises in a condition reasonably safe for the well and strong, but s/he must also exercise due care to keep such premises reasonably safe for the elderly, the infirm, and the disabled, and such owner may owe a special duty to warn them of hazards which are more dangerous to them because of their infirmity.

A merchant, who invites the public to his /her store, knowing that children will frequently accompany their parents, is under a duty to extend to the child the protection of an invitee[x].  The known characteristics of children, including their childish propensities to intermeddle, must be taken into consideration in determining whether ordinary care for the safety of a child has been exercised under particular circumstances[xi].

[i] Campbell v. Hughes Provision Co., 153 Ohio St. 9 (Ohio 1950).

[ii] Garvin v. Bi-Lo, Inc., 343 S.C. 625 (S.C. 2001).

[iii] Howard v. Andy’s Store for Men, 757 So. 2d 1208 (Ala. Civ. App. 2000).

[iv] Ortega v. Kmart Corp., 26 Cal. 4th 1200 (Cal. 2001).

[v] Garvin v. Bi-Lo, Inc., 343 S.C. 625 (S.C. 2001).

[vi] Ortega v. Kmart Corp., 26 Cal. 4th 1200 (Cal. 2001).

[vii] Lipman Wolfe & Co. v. Teeples & Thatcher, Inc., 268 Ore. 578 (Or. 1974).

[viii] Id.

[ix] Ortega v. Kmart Corp., 26 Cal. 4th 1200 (Cal. 2001).

[x] Wal-Mart Stores, Inc. v. Lerma, 749 S.W.2d 572 (Tex. App. Corpus Christi 1988).

[xi] Orr v. First Nat’l Stores, Inc., 280 A.2d 785 (Me. 1971).


Inside Defects in Stores and Other Commercial Premises