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The Standard of Care in Slip and Fall Cases

In Virginia, a plaintiff must prove that a premises owner had actual or constructive notice of a spill or other dangerous condition. In other words, a plaintiff must prove that the owner either actually knew, or should have known, that there was a dangerous condition on its premises. A premises owner has actual notice where she actually knows of a dangerous condition. Alternatively , a premises owner is presumed to have constructive knowledge when the hazardous condition has existed for such a length of time such that the owner, in the ordinary exercise of due care, would have discovered the condition. Oft en, when liability is based on constructive notice, the plaintiff must demonstrate when the condition developed.

There is a line of cases in Virginia where the court has adopted a “foreseeability” (as opposed to notice) analysis. In theses case, the store created the “genesis of the danger” which led to the dangerous condition. The issue is whether a defendant knew or should have known that its activities would create a foreseeable risk of danger. For example, if a store in Chesterfield County moves a plant from the outdoor garden area to a desk on display inside the store to make it more attractive. The store neglects to water the plant or give it proper sunlight. The leaves fall from the plant, and a customer slips on the leaves and falls. The store did not know that the leaves had fallen from the plant, and there is no evidence of when they fell from the plant. Nevertheless, the plaintiff may be entitled to recover because the store created the “genesis of the danger” by moving the plant. The issue is whether an ordinarily prudent person, given the facts that the owner knew or should have known, could have foreseen the risk of danger, then the store owner had a duty to exercise reasonable care to avoid the genesis of the danger.