South-Western Legal Studies in Business

Burden Shifted to Business Property Owner in Slip-and-Fall Cases in Kentucky
Description The Kentucky high court joined some other states in shifting some of the burden of proof in slip-and-fall cases away from being part of the evidence that the plaintiff must establish to instead become an affirmative defense on the part of the property owner to show that there was no negligence in maintenance of safe premises.
Topic Torts
Key Words Premises Liability; Slip-and-Fall; Negligence; Defenses
C A S E   S U M M A R Y
Facts Lanier sued Wal-Mart for damages for injuries sustained when she slipped and fell on a wet spot in a Wal-Mart store in Kentucky. Wal-Mart was granted summary judgment on the ground that Lanier could not prove negligence on the part of Wal-Mart. Lanier could not prove how long the spot had been wet or if Wal-Mart employees had notice of it. She appealed.
Decision

Reversed. The rule that the burden is on the customer to prove the origins of a substance and how long it had been present creates a very heavy burden for the plaintiff, which various states have modified. In a premises liability case involving a business visitor, a person invited to enter the property, the issues of causation and notice are to be treated not as elements of the customer’s case, but as affirmative defenses of the proprietor. The customer has the burden of proving that there was a foreign substance on the floor and that it was a substantial factor in causing the accident. Such proof shifts to the business the burden of proving that employees did not cause the substance to be on the floor and that it had not been there for a sufficient length of time to have been discovered and removed.

Citation Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431 (Sup. Ct., Ky., 2003)

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