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Ortega vs. Kmart

The expert witness testimony of Balian & Associates was instrumental in the outcome of Ortega v. Kmart, 26 Cal.4th 1200, a 2001 decision by the Supreme Court of California which changed the law in California regarding constructive notice and premises liability for a retail establishment.

This case involved a personal injury claim which arose when a Kmart customer slipped on a puddle of milk in the store, severely injuring his knee. A key element in assigning liability in such cases is proving how long the dangerous condition existed before the plaintiff was injured. Store owners have a duty to inspect their premises regularly; therefore, any spills should be discovered and cleaned up in a timely manner, and store owners can be held liable for injuries occurring after the time that the spill was known of or should have been discovered through reasonable care.

The plaintiff in the Ortega case could not produce any evidence to show how long the puddle had been there, although he was able to show that the premises had not been inspected for quite some time before the accident. The jury inferred from this that the spill should have been discovered and found in favor of the plaintiff.

The defendant appealed, claiming that plaintiff had to show how long the milk had been on the floor and could not meet that burden simply by showing that the floor had not been inspected within a reasonable period of time prior to the accident. The Court of Appeals disagreed and upheld the jury verdict.

The case was further appealed to the California Supreme Court, with the defendant again arguing that just because it hadn’t inspected the premises is not the same as having either actual or constructive notice that a dangerous condition existed. The Supreme Court affirmed the lower courts’ decisions, holding that the fact that the premises had not been inspected within a particular period is enough to allow a jury to infer that the dangerous condition existed long enough that it should have been discovered if the store owner was exercising reasonable care.

Testimony by the store manager in this case revealed that the store did not keep written inspection records, and that while employees were trained to look for spills and an employee usually walked the aisles every 15 to 30 minutes, the milk could have been on the floor for as long as two hours prior to plaintiff’s slip and fall.

The testimony of Alex J. Balian, retained by the plaintiff as a maintenance expert, was quoted by the Supreme Court in its opinion. Mr. Balian testified that stores like Kmart should implement three basic management tools regarding floor maintenance:

  • Accountability – identifying the name of the person who performs the inspection
  • Frequency – management should know how often the floor is inspected
  • Verification – written record or some other form of verification presented to management

In light of the store manager’s testimony cited above, which showed Kmart to be deficient in having these tools in place or implementing them consistently, Mr. Balian’s testimony was especially relevant to the court’s decision upholding the inference of the store’s negligence.

This case changed the face of constructive notice in premises liability in California. Jury instructions since Ortega have also been changed to reflect the permissible inferences which may be drawn in such an instance.

Alex J. Balian has testified in courts across the country on behalf of both plaintiff and defense attorneys. If your case requires objective, expert testimony regarding the proper procedures, standards, or operations in the retail industry, contact Balian & Associates today for assistance.

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