Southern District of West Virginia Holds That Without Knowledge of Dangerous Condition, Negligence Cannot Arise

plastic bagOf all of the personal injury claims that may arise when an individual is injured, the most common is a claim of negligence. Negligence occurs when one party has a duty to ensure the reasonable safety and care of another party but fails to fulfill that duty and, as a result, causes the injuries of the other party. Negligence arises when one individual knows that a dangerous condition or situation exists but fails to do anything about it. Negligence does not arise simply because a victim is injured or a dangerous condition existed. Instead, someone must be aware of that dangerous condition. A recent case before the Southern District of West Virginia addressed precisely this issue in a recent case involving a grocery store fall.

R.S. and her husband, B.S., brought a lawsuit against Kroger Supermarkets after R.S. was injured in a fall that occurred at her local store. As R.S. was checking out with her groceries, she stepped on a plastic bag that was lying on the floor. The plastic bag caused her to slip, and she fell, landing on her back. The fall caused her to break a rib, led to contusions in her chest and abdomen, and also caused neck and back pain. R.S. was taken to the hospital and treated for her injuries. According to the lawsuit that R.S. later filed, a nearby cashier, K.P., noticed the plastic bag on the ground shortly before R.S.’s fall but did not do anything about the bag. K.P. admitted that he did notice the bag but said that it was not moving when he noticed it and that he became aware of it only an instance before R.S. fell. R.S. argued that Kroger was negligent in failing to clean up the bag. Prior to trial, Kroger moved for summary judgment on R.S.’s claims, arguing that it had no knowledge of the bag on the floor in time to clean it up. The lower court ultimately agreed. It found that while R.S. was a visitor to the store, and Kroger owed her a duty of reasonable care, this duty extended only to dangers or conditions of which Kroger had actual or constructive knowledge. Here, it held that R.S. had not presented any evidence that Kroger had knowledge of the bag, such that it could have cleaned it up or removed it before R.S.’s fall. R.S. appealed.

On appeal, R.S. argued that Kroger had a maintenance and clean up policy that should have caused store employees to pick up the bag, but, since the store did not follow its own policy, the bag was not addressed. However, as the court explained, the presence of the bag on the ground and Kroger’s maintenance policy alone do not create negligence. Instead, Kroger had to have actual or constructive knowledge that there was a bag on the ground that did not get cleaned up pursuant to policy and that this bag posed a threat to customers. Moreover, this notice must have been received with sufficient time for Kroger to address the dangerous bag before R.S. fell. Here, while R.S. alleged facts to show that K.P. noticed the bag, this notice occurred only moments before R.S.’s fall and without enough time for Kroger to respond. The Southern District concluded that this simply did not amount to actual or constructive knowledge of the bag. To hold Kroger responsible in this situation would impose an “unachievable standard” on the company.

If you have a family member who was recently injured or killed as a result of a dangerous condition, it is important to consider whether anyone was or should have been on actual notice of that condition. Our West Virginia personal injury lawyers have been assisting clients with negligence, personal injury, and wrongful death claims throughout the state for more than 25 years. Located in Elkins, West Virginia, the firm represents clients in a wide range of injury, criminal defense, and bankruptcy matters. Call us at 1-877-637-5756 or contact us online for a free consultation.

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