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Mae Tom went to Kresge’s store on November 15, 1977, slipped, and fell on a clear substance on the floor.   No one ever determined what the substance was, but Kresge’s did sell soft drinks in the store, and customers could walk around with their drinks.   Ms. Tom wishes to recover for her injuries.   Can she do so? [Tom v. S.S. Kresge Co., Inc., 633 P2d 439 (Ariz. Ap. 1981]

The five elements of the Tort of Negligence are duty, breach of duty, causation, proximate cause and damages. These are the elements which Ms. Tom must prove for her suit based on tort to prosper.  On the other hand the three defenses of negligence which the store can use against Ms. Tom in case a suit is filed against them are contributory negligence, comparative negligence, and assumption of risk.

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First of all tort must be defined.  What is a tort? A tort is simply defined as “A negligent or intentional civil wrong not arising out of contract or statute.”

In the case of Ms. Tom the first element is duty.  The store has the duty to ensure with reasonable diligence that the store is safe for its customers.  This applies to all stores, but the standards may differ depending on the type of store.  Since a self service store is involved, continuous monitoring should be made by the store staff to ensure that no untoward accidents such as Ms. Tom’s slipping on a pool of clear liquid should not happen.

The next element is a breach of this duty, the duty to ensure the safety of the store for the customers.  Since Ms. Tom slipped, there is automatically a breach of this duty as she would not have slipped if there was no clear liquid on the stores floor.

Another necessary element is causation.  What caused her to slip?  Here the cause of her slipping was the clear liquid on the floor.  Directly related to causation is the proximate cause.  But what is proximate cause?  Proximate cause defined as “An act from which an injury results as a natural, direct, uninterrupted consequence and without which the injury would not have occurred.”  Here the proximate cause is the negligence of the store in not seeing the clear liquid, and taking appropriate measures to wipe off the spilt liquid from the floor.  This resulted in Ms. Tom’s slip, making them liable for the injuries that she sustained.

The final element is that damages were sustained.  Clearly damages were sustained by Ms. Tom as she suffered bodily injury which is why she has filed the case in the first place.

For its defense the store Kresge can invoke contributory negligence, comparative negligence, and assumption of risk.

Contributory negligence is defined as “Behavior by the plaintiff that contributes to the harm resulting from the defendant’s negligence.”  Where there is contributory negligence, the damages that may be awarded to the plaintiff can be lowered, depending on the amount of contributory negligence. Applying this to the case, the store does not deny it was negligent, but it claims that Ms. Tom if she were more careful should have seen the clear liquid on the floor and avoided it.  However, the Arizona Court of Appeals ruled that:

“An owner of a self-service establishment has actual notice that his mode of operation creates certain risks of harm to his customers. Since a self-service operation involves the reasonable probability that these risks will occur, these risks are foreseeable. Thus, it is not necessary to show actual or constructive notice of the specific hazard causing injury, and it becomes the task of the jury to determine whether the proprietor has taken all reasonable precautions necessary to protect his invitees from these foreseeable risks.”

Thus, contributory negligence must be ruled out.

Comparative negligence on the other hand is a rule of law applied in accident cases to determine responsibility and damages based on the negligence of every party involved in the accident.  This likewise was not applied by the Arizona Court of Appeals.

Another defense that could have possibly been used by the store is “assumption of risk” which means that plaintiff voluntarily accepted or exposed himself to a risk of damage, injury, or loss, after appreciating that the condition or situation was clearly dangerous, and nonetheless made the decision to act.  Once again this was ruled inapplicable by the Arizona Court of Appeals.  The Arizona Court held that:

“The showing that appellee provided soft drinks for its patrons in a self-service store provides the requisite level of anticipation of patrons’ carelessness for the application of the “mode of operation” rule. It is easily foreseeable that appellee’s patrons could spill soft drinks while carrying them through the store. It does not appear that appellee restricted the consumption of soft drinks to certain areas in the store, and apparently sold the drinks so its patrons could enjoy them while shopping. Among the established facts is a statement by the store manager in his written report of the accident that the “floor was wet from a spill . . . soft drink probably.”

Thus, assumption of risk should not apply as it is the duty of the store to ensure and anticipate anything that may cause their customer’s injury and take steps to prevent any injuries and accidents from happening.

Based on these facts I agree with the Arizona Court of Appeals, and would make the Kresge store liable for any injuries and damages suffered by Ms. Mae Tom.

References

Tom v. S.S. Kresge Co., Inc., 633 P2d 439 (Ariz. Ap. 1981)

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