Feazle-Hurt v. Target Corp., 3:12–CV–00997–AC, 2013 WL 5797601 (D. Or. Oct. 28, 2013)
Why This Case Is Important
This case recognizes and reinforces the burden plaintiffs must meet when claiming negligence in a slip-and-fall case.
Feazle-Hurt v. Target clarifies two important points: First, under Oregon law, the requirement that a substance involved in a slip-and-fall incident "was placed there" by the business refers to the scene of the incident—it is insufficient that a business merely brings that substance into its store. Second, the absence of an official policy or procedure for inspecting storeroom floors does not, by itself, mean that a store has failed to put itself on notice of a potentially hazardous condition.
Large retail chains and smaller businesses that rent space in larger commercial shopping centers should take note of this case because it highlights the importance of fact investigation in the early stages of slip-and-fall cases. A thorough fact analysis at the outset will produce greater efficiency at the summary judgment level of litigation.
On May 5, 2010, Plaintiff Feazle-Hurt slipped and fell in a Target Store at Cascade Station, a large shopping center in northeast Portland. A brief investigation of the area surrounding the fall revealed a stray merchandise tag that had detached from a "puffy ball" children's toy on display near the store's entrance. Feazle-Hurt argued that she must have slipped on that tag, though she had not seen it before or after her fall.
Feazle-Hurt filed a negligence claim against Target Corporation in Oregon State Court, and Target moved the case to federal District Court based on diversity jurisdiction. Target filed a motion for summary judgment on all claims under Oregon State tort law.
At issue was whether Target knew or should have known about the "danger" posed by a detached merchandise tag on its floor. The District Court noted that under Oregon law regarding slip-and-fall cases, a business may be liable to an invitee who falls on a foreign substance on the business's floor if the plaintiff can prove that (1) the substance "was placed there" by the business, (2) the business knew that the substance was there and failed to use reasonable care to remove it, or (3) the foreign substance had been there for such a length of time that the business should have discovered and removed it. Feazle-Hurt argued all three theories of liability as follows:
(1) The substance was placed there by the business: Feazle-Hurt argued that Target was liable because the tag "was placed there" by Target, interpreting "there" to mean "in the store";
(2) The business knew that the substance was there and failed to use reasonable care to remove it: Here, she argued that Target was on notice that its merchandise tags were prone to falling onto the floor and creating a risk for slip-and-fall accidents because the use of tags on merchandise, coupled with customers' abilities to access that merchandise, generally posed a storewide danger of which Target should have been aware;
While Feazle-Hurt offered no evidence that the particular "puffy ball" display posed a risk about which Target should have known, she offered expert testimony that the tag on the floor created an unreasonably hazardous condition which Target should have discovered. The expert opined that Target operated below the industry standard because it did not have any formal policies or procedures for floor inspections like Wal–Mart and Safeway, and so the tag went undiscovered in the absence of such a policy; and
(3) The substance had been there for long enough that the business should have discovered and removed it: Feazle-Hurt argued that a jury could make a reasonable inference that the tag had been on the floor long enough that a Target employee should have discovered it.
The court soundly rejected all three of Feazle-Hurt's arguments and granted summary judgment for Target.
(1) With respect to the argument that the substance was placed "there" by the business, the court rejected Feazle-Hurt's argument that Target was liable because it brought the tag into the store. The court stated that she mistakenly interpreted "there" to refer to the premises generally, when Oregonlaw was clear that "there" means the scene of the incident. It was, therefore, entirely irrelevant whether Target brought the tag into the Cascade Station store's walls; the only relevant issue was whether Target placed the tag on the ground where Feazle-Hurt fell. As Feazle-Hurt offered no evidence that Target had done so, the court dismissed her argument on that issue.
(2) Regarding the argument that the business knew that the substance was there and failed to use reasonable care to remove, the court rejected the argument that Target's lack of particular procedure or policy akin to Wal–Mart's or Safeway's regarding floor inspections led to a failure to put itself on notice that the tag was on the floor. The court found no direct link between Target's lack of a particular policy and Feazle-Hurt's fall. In fact, a Target employee had scanned the area of the fall just ten minutes prior to
the incident and did not see the tag.
(3) Finally, as to the theory that the substance had been there for so long that the business should have discovered and removed it, the court found insufficient evidence to establish a reasonable inference under prong (3) as to how long the tag was on the floor. Where the court found that it was just as likely that the tag fell seconds before Feazle-Hurt walked by as it was that it had been there for hours, the court could not impose any reasonable inference as to time.