“How could the arena possibly have patrolled the entire facility to be on guard for something such as a spilled french fry?”
Hon. Gregory A. Peterson
The Strack exception does not permit an arena to be found liable when a patron slipped on a french fry, without a showing of notice on the arenas part, the Wisconsin Court of Appeals held on Oct. 7.
On Feb. 6, 1998, Nancy Megal attended an ice show at the Brown County Veterans Memorial Arena. The arena has 61,000 square feet on three floors. It has the capacity to hold 5,248 people, and on this night, 4,220 tickets were sold.
After the show ended, Megal was exiting by walking down a stairway. The stairs were crowded and she could not see the stairs in front of her. She slipped on a two- or three-inch ketchup-soaked french fry on one of the stairs, fracturing an ankle.
She did not see the french fry before she slipped on it, nor did she know how long the french fry had been on the step.
The arena sells concessions and there are no restrictions on where patrons can take their concessions in the arena. During ice show performances, there are usually two people responsible for cleaning spills throughout the arena and for maintaining the restrooms.
There are no formal, written procedures for inspection of the premises. The employees clean the bathrooms and dust mop the floor near the concession stand, but they usually only clean up spills outside these areas when a customer or other arena employee reports them.
Megal sued the arena, alleging a violation of the safe-place statute, sec. 101.11, and common law negligence. The arena moved for summary judgment, and Brown County Circuit Court Judge William M. Atkinson granted the motion.
With respect to the safe-place violation, the court determined Megal could not prove the arena had actual or constructive notice of the dangerous condition. With respect to the negligence claim, the court concluded it was pure speculation to argue any procedure or inspection pattern or number of personnel would have been able to locate, remove, and clean up the french fry.
Megal appealed, but the court of appeals affirmed in a decision written by Judge Gregory A. Peterson and joined by Judge Michael W. Hoover. Judge Thomas Cane dissented.
The court concluded that Megal could not show that the arena had notice of the french fry, either actual or constructive, and that knowledge couldnt be imputed to the arena through the Strack exception (or mode-of-operation rule).
The safe-place statute requires a place of employment to be kept as safe as the nature of the premises reasonably permits. To recover, a plaintiff must show either actual notice of the unsafe condition that caused injury, or constructive notice, which exists when the hazard existed for sufficient time that a vigilant owner would have discovered and remedied the condition.
The Wisconsin Supreme Court created an exception to these rules in Strack v. Great Atl. & Pac. Tea Co., 35 Wis.2d 51, 54, 150 N.W.2d 361 (1967).
The Strack exception applies only when there is a reasonable probability that an unsafe condition will occur because of the nature of the business and the manner in which it is conducted. Strack, 35 Wis. 2d at 57-58. Under those circumstances, an injured person does not have to prove the dangerous condition existed for a sufficient period of time to allow an owner to correct the condition. Id. Rather, a much shorter period of time, and possibly no appreciable period of time under some circumstances, need exist to constitute constructive notice. Id. at 54-55.
In Strack, a customer at a grocery store with a self-serve produce department slipped and fell on a prune that had fallen to the floor. The store had a policy of checking the aisles for debris every ten minutes, but the produce manager did not know when the aisles had last been checked.
Hon. Thomas Cane
The Supreme Court held that the method of operation required periodic inspection, and a jury could infer that, had the aisle been inspected or swept within a reasonable time, the injury would not have occurred, and therefore, the store could be held to have constructive notice, even absent any evidence as to the length of time the condition existed.
Strack was followed by Steinhorst v. H.C. Prange Co., 48 Wis.2d 679, 180 N.W.2d 525 (1970). In that case, the plaintiff slipped and fell on shaving cream on the floor of a self-serve mens cosmetics counter. Applying Strack, the Supreme Court held that the nature of the self-serve counter called for periodic inspection.
Because the store did not engage in such inspection, the court held it could be held to have constructive notice, even though, as in Strack, the plaintiff could not offer any evidence how long the dangerous condition was present.
The Supreme Court distinguished Strack in Low v. Siewart, 54 Wis.2d 251, 195 N.W.2d 451 (1972), holding the exception does not apply to a burned out light in a parking lot.
The court of appeals previously has distinguished Strack, also, in Kaufman v. State St. Ltd. Pship, 187 Wis.2d 54, 522 N.W.2d 249 (Ct.App.1994). In Kaufman, the court held that the exception does not apply where a plaintiff slipped on a banana in a grocery store parking lot, when the store did not have exclusive control over the lot.
It was indisputed that Megal could not prove how long the french fry was on the stair. The french fry could have been there for the entire show, or could have been dropped just seconds before she stepped on it. Accordingly, Megal could not prevail unless the case falls within the Strack exception.
Megal argued that it does, because a jury could find that her injuries were due to the arenas method of operation, which allowed patrons to take concessions anywhere in the arena. Megal argued that a jury could conclude that this creates foreseeable danger, because it is a reasonable assumption that patrons would drop food at some time. Thus, the jury then could conclude it was incumbent on the arena to employ sufficient custodial persons and to create and follow clean-up procedures in order to ensure the premises were as safe as their nature reasonably permits.
The court distinguished Strack and Steinhorst, however, calling the exception very narrow. The court noted that both cases involved a self-service situation, and the condition was present in the immediate area where the dangerous condition was created. Here, however, the french fry was removed from the area where it was purchased.
What the court held
Case: Nancy Megal v. Green Bay Area Visitor & Convention Bureau, No. 02-2932.
Issue: Does the Strack exception to the safe place statute apply to a food spill in an arena?
Holding: No. It would be unreasonable to impute constructive notice of every food spill in an arena hosting a sporting event.
Counsel: John C. Peterson, Appleton; Mary T. Lokensgard, Appleton; for appellant; William J. Ewald, Green Bay; Tina M. Dahle, Green Bay; Kenneth E. Rusch, Greenfield; Steven M. Biskupic, Milwaukee, for respondent.
The court reasoned, If we were to apply Strack here, the exception would swallow the rule. This is a 61,000 square foot arena with seating for over 5,000 people on three levels. Patrons were free to take food and drink anywhere in the arena. How could the arena possibly have patrolled the entire facility to be on guard for something such as a spilled french fry? With thousands of patrons exiting at the end of the show, Megal has not provided a principled and reasonable response to this circumstance that would prevent the injury she sustained.
The court added, This exception would then apply to stadiums, theaters, restaurants, shopping malls. The list is endless. Imagine, for example, the consequences for Lambeau Field when more than 70,000 people are trying to exit at the end of a football game. Are they all required to sit in their seats until custodians have inspected all the stairways, hallways, aisles and rows? How many custodians must t
he stadium employ? If we applied Strack here, every time someone slipped and fell on a foreign substance in a public place, a jury would have to decide whether an owner or operator would be exposed to liability even if the owner or operator did not know about the substance or have time to discover it.
Accordingly, the court affirmed the grant of summary judgment in favor of the arena.
Judge Cane dissented, citing four reasons: first, whether constructive notice of an unsafe condition may be charged to the arena is a fact question for the jury; second, the majority opinion rewrites the Strack exception; third, the majority opinion is improperly driven by policy considerations; and, finally, our standard of review requires reversal of summary judgment.
Applying Strack, Cane found all elements of the exception were met: First, it cannot seriously be refuted that the nature of the arenas business in part was to sell food. Second, the arenas method of operation was as follows: patrons were allowed to take their food anywhere in the arena; the arena employed as few as two janitorial employees, with possibly only one working on the night of Megals injury, to monitor the entire facility; there are no formal written procedures for inspection of the premises; and the employees do not conduct regular sweeps of the stairs or concourse areas to ensure they are clear of spills or other unsafe conditions because they usually only clean up spills outside the concession area when someone reports them. Third, the injury occurred on the stairway inside the arenas premises. This is an area under the exclusive control of the owner or operator of the premises.
Cane criticized the majority opinion as limiting Strack to the following situations: (1) the nature of the business must be merchandising or retail, or presumably some other similar venture, (2) its method of operation must be self-service or other similar mode of operation that allows carelessness of patrons, and (3) the location of the unsafe condition must be nearby the area where the dangerous condition is created.
Because none of these limitations is found in Strack or Steinhorst, Cane called them unwarranted.
Cane also criticized the majority opinion as appearing to be primarily driven by public policy considerations. Cane concluded, Of course the majority is correct that the arena could not possibly have patrolled the entire facility to be on guard for something such as a spilled french fry. Nothing in the law requires it to be held to such a standard. All that owners and operators of premises are required to do is ensure their premises are as safe as the nature of the premises reasonably permits. (cite omitted).
Cane called the public policy reasons specious, stating, [all arenas, stadiums, theaters, restaurants, and shopping malls] sell concessions, and they should anticipate spills; yet, they need only adopt a method of operation that provides for reasonable clean-up in a reasonable amount of time.
Cane added, followed to its logical conclusion … the majority has effectively granted immunity to large-scale entertainment venues from lawsuits arising out of slip-and-falls on temporary or transitory unsafe conditions that occur on their premises. These businesses now have no incentive to monitor their premises to ensure they are reasonably free of debris or other unsafe conditions. Indeed, the opposite is true.
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