Pink Milkshake On the Floor For Less Than Ten Minutes Before Slip-and-Fall Is Not Constructive Notice
REID v. KOHL’S DEPARTMENT STORES, INC. (September 16, 2008)
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On a December afternoon, Lenora Reid and a friend were shopping for men's shirts at Kohl’s Department Store. As they moved through the store from a carpeted section into a tiled section, she slipped and fell. Reid noticed a pink milkshake and cup lying in a pool on the floor. A manager arrived to assist and also noticed the spill. The manager had passed through the same area ten minutes earlier and had not seen a spill. Reid brought a negligence action against Kohl’s. On Kohl’s motion, the court granted summary judgment. The court found that (a) Kohl’s had no actual or constructive notice of the spill, and (b) the spilled shake was an open and obvious condition that created no duty on the part of Kohl’s. Reid appeals.
In their opinion, Judges Bauer, Wood, and Williams affirmed. The Court restated the Illinois law that business owners owe their invitees a duty to keep their physical premises in a reasonably safe condition. Liability is found for a slip-and-fall on a foreign substance if the invitee establishes that the business had actual or constructive knowledge of a dangerous condition. Reid attempted to establish constructive knowledge. The Court held that Reid needed to present evidence on how long the foreign substance had been on the floor. She presented evidence only of a photograph of the scene and her and her friend’s lay opinion testimony. The Court found none of that evidence strong enough to support even an inference of any measurable length of time. Conversely, the manager testified that she was in the area ten minutes before the fall and that the spill had not been there at the time. The Court observed that Illinois law does not employ a bright line test but considers the circumstances of the case to determine the existence of constructive notice. Considering the circumstances here, including Kohl’s internal procedures for monitoring for dangerous conditions and the actual monitoring done in an “almost empty” store, the Court held that no reasonable person could conclude that ten minutes is constructive notice.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select