3065

At about 3.15 pm on November 15, 1995, plaintiff, Jason Love, and his mother, Billye Ann Love, went to the Hardee’s Restaurant in Arnold, Missouri, owned by defendant, Hardee’s Food Systems, Inc. There were no other customers in the restaurant between 3.00 pm and 4.00 pm, but two or three workmen were in the back doing construction. The workmen reported that they did not use the restroom and did not see anyone use the restroom. When Jason went to use the restroom, he slipped on water on the restroom floor. He fell backwards, hit his head, and felt a shooting pain down his right leg. He found himself lying in an area of dirty water, which soaked his clothes. There were no barricades, warning cones, or anything else that would either restrict access to the bathroom or warn of the danger.

Jason stated after the fall that his back and leg were “hurting pretty bad.” His mother reported the fall. The supervisor filled out an accident report form, which reported that the accident occurred at 3.50 pm. The supervisor testified that the water appeared to have come from someone shaking his hands after washing them. The supervisor could not recall the last time the restroom had been checked. Jason was taken to a hospital emergency room. As a result of his injuries, he underwent two back surgeries, missed substantial time from work, and suffered from continuing pain and limitations on his physical activities.

Hardee’s had a policy requiring that the restroom be checked and cleaned every hour by a maintenance person, who was scheduled to work until 3.00 pm, but normally left at 1.00 pm. The supervisor could not recall whether the maintenance person left at 1.00 pm or 3.00 pm on November 15, and the defendant was unable to produce the time clock report for that day.

It was also a store policy that whenever employees cleaned the tables, they would check the restroom. If an employee had

to use the restroom, then that employee was also supposed to check the restroom. The restaurant supervisor did not ask if any employees had been in the restroom, or if they had checked it in the hour prior to the accident, and did not know if the restroom was actually inspected or cleaned at 3.00 pm. The restaurant had shift inspection checklists on which the manager would report on the cleanliness of the restrooms and whether the floors were clean and dry. However, the checklists for November 15 were thrown away. Jason Love filed a lawsuit against Hardee’s Food Systems, Inc. to recover damages for negligence. The jury returned a verdict in the plaintiff’s favor in the amount of $125,000.

DECISION The judgment of the trial court is affirmed.

OPINION In order to have made a submissible case, the plaintiff had to show that defendant knew or, by using ordinary care, could have known of the dangerous condition and failed to use ordinary care to remove it, barricade it, or warn of it, and plaintiff sustained damage as a direct result of such failure. In order to establish constructive notice, the condition must have existed for a sufficient length of time or the facts must be such that the defendant should have reasonably known of its presence.

In this case the accident took place in the restaurant’s restroom, which is provided for the use of employees and customers. The cause of the accident was water, which is provided in the restroom. The restaurant owner could reasonably foresee that anyone using the restroom, customers or employees, would use the tap water provided in the restroom and could spill, drop, or splash water on the floor. Accordingly, the restaurant owner was under a duty to use due care to guard against danger from water on the floor.

There was substantial evidence to support submissibility. First, there was evidence that the water came from the use of the restroom. It was on the floor of the restroom and the supervisor testified it appeared that someone had shaken water from his hands on the floor. If the water was caused by a nonemployee, the water was on the floor for at least fifty minutes, or longer, because no other customers were in the store to use the restroom after 3.00 pm and the workmen on the site had not used the restroom. In addition, the defendant’s employees had the opportunity to observe the hazard. The restroom was to be used by the employees and was supposed to be checked by them when they used it; employees cleaning tables were supposed to check the restroom when they cleaned the tables; and a maintenance man was supposed to check and clean the restroom every hour.

There was evidence that the maintenance man charged with cleaning the restroom every hour did not clean the restroom at 3.00 pm as scheduled on the day of the accident. There was testimony that the maintenance man usually left at 1.00 pm. The supervisor could not recall what time the maintenance man left that day and defendant was unable to produce the time clock reports for that day, which would have shown when the maintenance man clocked out. This could have created a span of two hours and fifty minutes during which there was no employee working at the restaurant whose primary responsibility was to clean the restroom.

INTERPRETATION The owner or possessor of property is liable to an invitee if the owner knew or, by using ordinary care, could have known of the dangerous condition and failed to use ordinary care to remove it, barricade it, or warn of it, and the invitee sustained damage as a direct result of such failure.

CRITICAL THINKING QUESTION Should customers be required to look for dangers?