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Author: Timothy M. Johnson
In Correa v. Woodman’s Food Market, 2020 WI 43, the Wisconsin Supreme Court clarified that to proceed on a claim under the safe place statute of an unsafe condition, a plaintiff need not show evidence sufficient to determine when the condition first existed. Rather, the court explained the plaintiff need only show evidence sufficient to establish the defendant had notice or should have had notice of the unsafe condition and failed to respond to the condition in a reasonable time.
The plaintiff injured his wrist when he slipped and fell on an unknown substance in an aisle at the defendant grocery store. Not only was the substance unknown, but the length of time the substance was on the floor was unknown. Much of the oral argument focused on the 90 minutes of security video showing nothing indicating the store should have responded to this aisle to clean anything up before the plaintiff fell. Nonetheless, based upon the plaintiff’s slip and fall in that area, the plaintiff’s wiping of a substance off his shoe after he fell, an employee’s testimony that there may have been drops of a substance in that area visible right after the fall, and the video footage that showed no indication of the origin of the unknown substance for approximately 90 minutes (implying the substance may have been on the floor for more than 90 minutes), the court found reasonable inferences supporting the plaintiff’s theory of liability – that the store had sufficient time to be on notice of and respond to the unsafe condition.
The import of this decision is that whether an alleged unsafe condition under the safe place statute will survive summary judgment or a directed verdict will depend on whether the plaintiff can establish, based upon the nature of the unsafe condition and the nature of the defendant’s business, whether the defendant had notice of the condition or should have had notice such that a response to the condition should have occurred under reasonable circumstances. This means there is no bright line rule for how long an alleged unsafe condition has to last for a defendant business to be considered on notice of it; the particular amount of time will depend on the circumstances, like the nature of alleged condition and the nature of the business and its practices.