Whether from spilled soda at the drink station, grease spots near the kitchen, or peanut shells carelessly tossed on the floor by the last customer, busy restaurants are at risk for a seemingly unlimited number of hazards—many of which are just lawsuits waiting to happen. In order for would-be plaintiffs to recover money damages for injuries sustained in a slip-and-fall, they must prove that restaurant employees had actual or constructive knowledge of the hazard, and that they themselves lacked knowledge of the hazard despite their exercise of ordinary care for their own safety. Put another way, to impose liability and damages on the restaurant owner, the injured party must demonstrate that the defendant had “superior knowledge” of the hazard.
To establish that the restaurant had actual knowledge, plaintiffs need only present evidence that the defendant’s employees actually knew that a hazard was present. For example, an employee mops the bathroom floor and then leaves the area unattended while he goes to look for some wet floor signs. Before the employee returns with the signs, an unsuspecting elderly man enters the bathroom and slips on the unmarked wet floor. On the other hand, to demonstrate constructive knowledge, plaintiffs must show that the alleged hazard remained on the floor long enough that ordinary diligence by the restaurant employees conducting reasonable inspections would have discovered the hazard. For example, a child drops her ice cream just inside of the rear door to the restaurant, and it is captured on video. An hour later, a woman in high heels enters through that door and slips on the ice cream, fracturing her femur. Constructive knowledge of the hazard will be attributed to the restaurant owner for either the failure to institute policies and procedures for periodic inspections, which presumably would have detected the spill, or for the restaurant’s employees’ failure to actually perform the inspections.
On the football field, the best defense is a good offense, and the same is true in the restaurant business. The best way to prevent slip/trip-and-falls or to defend against lawsuits filed as a result is also a good offense: thorough inspections at reasonable intervals. What is reasonable may vary from state to state, but in the case of a high volume fast food establishment, every 20 to 30 minutes should suffice.
Typically, in these cases, restaurants have good written policies and even checklists for regular inspections, but problems arise in the execution of those policies. Often dependent on transient, low-wage employees to perform the inspections, restaurants find themselves with scant, if any, documentation of inspections, particularly by the time a lawsuit is filed—which can be two or three years after an incident occurs. When faced with a suit and the responsible employee long gone, restaurant owners are left without proof that an inspection was ever done or have to scramble to locate a checklist that may have been completed and tossed in a drawer before the last renovation. Two problems then arise: the restaurant is left without a potentially valuable tool to defend the case, and if a form or checklist was completed and lost, the restaurant risks sanctions for the “spoliation” (destruction or failure to preserve evidence), whichcan result in court-imposed sanctions. These sanctions are sometimes severe, depending on the conduct leading to the disappearance of the document.
To avoid sanctions for spoliation and put up the best defense possible (assuming that the restaurant staff did not have actual or constructive knowledge of a hazard and failed to warn the public of that hazard) restaurants must have policies that mandate thorough inspections at reasonable intervals and diligent follow-through by restaurant employees. The question then becomes how to best preserve that information in the time, sometimes years, which elapses between the injury and the lawsuit in an industry with rapid employee turnover. The answer lies in the effective use of modern digital technologies that can not only track inspections but preserve exculpatory evidence that can easily be accessed at the push of a button.
As the saying goes, a picture is worth a thousand words. Time-stamped inspection photographs cataloged in an easily accessible format, using digital and mobile technology, are powerful tools in the restaurant’s toolbox when defending a slip-and-fall case—not to mention when negotiating with a city health inspector, refuting bad Yelp reviews, or addressing customer complaints. The ability to access time-stamped photographs to prove that a hazard had not been present for very long, or that the appropriate warning signs were in place at the time of the plaintiff’s injury or illness, can play a major role in reducing insurance premiums and litigation costs.
