Customer's fall accident at a mall and operating company's liability for torts

The following shows a case where a customer who slipped on ice cream on the floor in a mall and became disabled with aftereffects claimed for damages for torts against a company operating the mall.

The court affirmed part of the claim for damages, recognizing the company's breach of duty for safety management. (Judgment by the Okayama District Court on March 14, 2013)

• Page 99 of Hanrei Jiho No.2196

Summary of the case

Plaintiff:

X (consumer)

Defendant:

Y (shopping center)

Around 20:10 on October 31, 2009, X (then-71-year-old woman) was pushing a big shopping cart loaded with shopping bags along the aisle in front of an ice cream counter (hereinafter called "counter") on the first floor in a mall. At that time, ice cream had been dropped and left on the floor, on which X slipped with her left foot and fell.

On that day of the accident, some of the ice cream was sold at a discount at the counter. Since it was Halloween, many customers gathered there. There was a queue of about 20 customers at the time of the accident.

The shoes X was wearing then were not particularly in a slick condition. The counter was located in the middle of the first floor of the mall and along the main aisle connecting the central entrance and the perishable food section.

Due to the fall accident, X suffered a right femur supracondylar fracture and a second lumbar compression fracture. X was hospitalized for 92 days and got outpatient treatment for 85 days at several hospitals. X was left with serious functional disability in one of the three major joints of a leg, which was fixed.

X claimed against Y for damages in torts in neglecting safety management in the mall under Article 709 of the Civil Code and for damages accrued due to the slippery floor left as it is based on liability of possessor and owner of structure on land under Article 717 (1) of the Civil Code.

In response, Y stated that Y was not liable, and that even if Y was liable at all, at least 90% of the compensation should be borne by X based on the comparative negligence.

Reason

1. Liability of Y

(a) Safety management system

In the mall, cleaning was outsourced to a cleaning company till 18:00. Afterwards, 3 or 4 employees of Y were supposed to make random rounds across the mall, not only at their responsible counters. They were supposed to clean if any dirt was found or if they were paged over a P.A. system. When the accident occurred, at least 3 employees were making the rounds.

(b) Factors of the accident

The accident occurred on the aisle in front of the ice cream counter. There was a purple stain remained on the floor right behind the position where X fell. The counter was selling purple ice cream as well. In addition, it was recognized that ice cream and the like sometimes had fallen on the floor near the counter and that the shoes X was wearing on the day of the accident were not particularly in a slick condition.
Considering these facts comprehensively, it can be presumed that X fell due to slipping on ice cream on the aisle in front of the counter.

(c) Liability in torts

The mall aims to make a profit from providing many and unspecified customers (a wide range of ages, different sexes) with a space to choose and purchase products prepared by shops therein. The mall is liable for ensuring safety for many and unspecified customers based on generally expected conditions of their shoes and actions as a duty of parties gathering the said customers and having social contact under the principle of good faith.
It is easy to predict that a customer who is walking and eating ice cream he/she bought at the counter may drop part of the ice cream, as a result of which the floor of the aisle would be slippery. Moreover, some of the ice cream was sold at a discount on the day and Y could predict that many customers would visit the counter. Therefore, Y was obliged to take due care to keep the floor clean around the counter, for instance, by making enough eating space near the counter and guiding customers there, extending the outsourced-cleaning time till the closing time of the counter, and/or by enhancing the patrol around the counter by Y's employees.

2. Comparative negligence

While X failed in her duty to pay attention to the floor in walking the aisle in front of the counter when X could predict that part of ice cream might drop on the aisle near the counter and the floor might be slippery, X was pushing a shopping cart loaded with shopping bags and it was hard to see the floor ahead of her. In light of these facts, X's fault ratio should be up to 20%.

Explanation

1. Fall at a convenience store

In a case where a customer slipped and got injured due to a wet condition of the floor after being wiped with a damp cloth, the original judgment (reference precedent (3)) denied liability of the convenience store, construing that it was a self-inflicted accident. In contrast, appeal court decision (reference precedent (4)) affirmed liability of the convenience store which had neglected wiping the floor with a dry cloth after wiping with a damp cloth, generalizing as follows: "Under the principle of good faith, the store is obliged to ensure safety for many and unspecified people as a duty among the parties who gather many and unspecified people and have social contact, based on daily expected conditions of their clothes, shoes, actions, etc. For instance, it is natural for the store to assume that soles of their shoes might be worn down, or they might walk briskly when shopping" (comparative negligence: 50%).

2. Fall on a frozen outdoor stairs at a super market in a cold region

In a reference precedent (2) on a case where a customer fell due to the frozen condition of the outdoor stairs at a super market, the court affirmed both liability of possessor and owner of structure on land under Article 717 of the Civil Code and damages in torts under Article 709 of the Civil Code, stating as follows: "Although the defendant had a duty of care to ensure and manage safety for pedestrians not to slip on the outdoor stairs which may be covered with snow or ice, the defendant let the plaintiff use the iced stairs without fully controlling temperature setting of the road-heating facility installed there, as a result of which the fall accident occurred"(comparative negligence: 50%).

3. Fall at an entrance of a mass clothing outlet on a rainy day

In a reference precedent (5) on a case where a customer (then-62-year-old woman) who visited a mass clothing outlet on a rainy day fell near the wet umbrella bag stand located close to the automatic door and broken her right leg near her thigh, the court affirmed liability of the outlet, stating as follows: "Obviously there was a risk that customers may slip and fall there. The outlet left the slick condition as it is" (comparative negligence: 65%).

4. Slip on soup spilled by another customer at a company cafeteria operated by a mutual aid association

The reference precedent (1) is the sole judgment which denied liability of the defendant. Concerning the fall accident of a customer who slipped on soup spilled by another customer at a self-service company cafeteria, the court denied the fault of the mutual aid association who was managing the company cafeteria, giving reasons as follows: "The floor of the cafeteria made of artificial stone has not always been slippery. The cafeteria is a company cafeteria for staff members. No fall accident had occurred before the case. It was not predictable that user's fall would cause serious consequences".

5. Evaluation of the judgment

In the case here, the court stated the generality almost similar to that of the reference precedent (3) and added that "the mall aims to make a profit". Both in the reference precedents (1) and (5), the court attributed the accident to an action by another customer. In the reference precedent (5), the court severely affirmed a duty of the business and coordinated the fault ratio under the rule of comparative negligence. In the reference precedent (1), a big factor was the fact that the company cafeteria is operated by the mutual aid association, while the self-service method was also taken into account.

It is not unjust that the judgment affirmed Y's liability more severely in comparison to the past precedents. It is not unreasonable that the court determined 20% fault ratio of X under the rule of comparative negligence. Fall accidents with serious aftereffects often occur outdoors. If a customer slips on a floor wet with rain, the customer should take responsibility for the slip unless there is any particular circumstance (e.g. The floor was made of slippery tile). Problematic cases are fall accidents at places where something slippery left as it is or places covered with snow without being removed. Judgment depends on seriousness and frequency of the fall accidents and "predictability" thereof, existence of "duty to avoid risk" to prevent fall, and the level of safety management required based on the duty.

Reference precedents

1. Judgment by Tokyo High Court on September 28, 1988
   (Page 37 of Hanrei Jiho No.1294)
2. Judgment by Sapporo District Court on November 17, 1999
   (Page 150 of Hanrei Jiho No.1707)
3. Judgment by Osaka District Court on October 31, 2000 (not published)
4. Judgment by Osaka District Court on July 31, 2001
   (Page 64 of Hanrei Jiho No.1764)
5. Judgment by Kokura Branch of Fukuoka District Court on November 28, 2011 (not published)