You’ve all seen those sample tables at the end of the aisles at Costco stores. In our case today, Lilyan Hussaine was shopping at a Costco store in San Diego. Club Demonstration Services (CDS), an independent contractor who operated food sample tables within the store, was serving samples of butternut squash kale ravioli. Sounds yummy, although for some reason I don’t try those end-of-aisle samples.
SLIP AND FALL IN SAN DIEGO COSTCO
On the evening of October 19, 2018, Hussaine was walking down an aisle when she slipped and fell. A Costco surveillance video captured the incident, which showed a dark spot near where her shopping cart had been stopped for a brief period of time.
Long story short, Hussaine later retuned to the same aisle and slipped and fell on the dark substance, which was likely liquid soap that leaked out of a Soft-Soap twin pack carried in her shopping cart. Hussaine sued Costco and CDS.
SAMPLE TABLE CONTRACT WITH COSTCO
Costco had a contract with CDS providing all of the terms and details of CDS providing samples to Costco customers at its various sample tables. One relevant contract term defined the work area as the “12-foot radius of the demonstration workstation” within which CDS was responsible. Hussaine fell just outside of that 12-foot area.
CDS defended its lawsuit claiming that in its contract with Costco, it was responsible only for the area within the 12-foot perimeter, not outside that area where Hussaine had fallen.
The trial court ruled for CDS opining that CDS could not, in its contract with Costco, limit its general tort duties of protecting shoppers in the Costco store.
DUTY OF CARE
Under Civil Code section 1714, and a gazillion cases interpreting that code, an owner of a store or possessor (e.g. CDS) has a duty to “exercise ordinary care and prudence to keep the aisles and passageways of the premises… in a reasonably safe condition so as not to necessarily expose the customer to danger or accident.”
In the context of shopping in stores, a plaintiff who has fallen must show that the dangerous condition existed for at least a sufficient time to be discovered by ordinary care and inspection. “For example, a banana peel lying on a floor for a minute and a half could not give rise to tort liability following a customer’s fall.” So said the Forth Appellate District Court of Appeal.
COURT OF APPEAL RULING
The Court of Appeal reversed the trial court’s ruling favoring CDS and Costco and sent the matter back to be tried before a jury because there was evidence that a CDS and a Costco employee may have seen the spill and not taken any action to clean it up.
The video showed that a CDS employee twice walked past the spill, which is enough to create a jury question as to whether CDS was negligent for not noticing and cleaning up the spill. Seems like a long shot, but Hussaine is entitled to take her case to a jury.
Jim Porter is an attorney with Porter Simon licensed in California, with offices in Truckee and Tahoe City, California, and Reno, Nevada. These are Jim’s personal opinions. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at email@example.com or www.portersimon.com. Like us on Facebook. ©2022