Margaret Benjamin was shopping at a Wal-Mart store in the pet department. Unknown to her, there was loose bird seed on the floor.

Mrs. Benjamin slipped and fell on the bird seed, allegedly suffering severe injuries to her chest, left knee and left side. She brought this lawsuit for negligence by Wal-Mart, the department manager, and an employee who was checking inventory nearby. Her husband filed a separate lawsuit alleging loss of consortium.

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The department manager and employee sought to be dismissed as defendants from the lawsuit. But Benjamin argued they ran the department so they had a duty to prevent injury to her from slipping on the bird seed.

If you were the judge would you rule the store employees had a duty to prevent a slip-and-fall injury to Mrs. Benjamin?

The judge said no!

“In order to establish a claim for negligence, plaintiffs must present evidence of a legal duty owed by the defendants to Mrs. Benjamin, a breach of that duty by a negligent act or omission, and damages that were proximately caused by that breach,” the judge began.

“While not an insurer of the safety of his customers, a store owner owes a duty to keep aisles and passageways in a reasonably safe condition and is liable for any injury resulting from the breach of this duty,” he continued.

“This duty includes a duty to reasonably inspect the premises and to remove debris that could cause the customer to fall. This storekeeper liability is founded upon the duty of care a possessor of land owes to an invitee,” the judge explained.

However, an employee does not have an affirmative duty to maintain safe premises of a store merely by being an employee unless there is evidence of a more substantial level of control of the business, he emphasized.

In this case, there is no legal possibility of a successful claim against the pet department manager or the inventory clerk because there was no evidence they negligently caused the dangerous condition of the bird seed on the floor, the judge ruled. Therefore, in the absence of proof of negligent hiring, training or supervision of the employees, they cannot be held liable for Mrs. Benjamin’s alleged injuries, the judge concluded.

Based on the 2006 U.S. District Court decision in Benjamin v. Wal-Mart, 413 Fed.Supp.2d 652.

(For more information on Bob Bruss publications, visit his
Real Estate Center
).

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