Pressing the need to take affirmative
steps to correct potential hazards should
be frequently emphasized to the store associates, and the liability to the store for
not doing so. While retailers often have
periodic sweep schedules, employees
should also be encouraged to keep their
eyes open for hazards. Keeping the business open and minimizing its liability
affects all concerned. While it is easy to
state that a periodic sweep schedule is
policy, it is much better to have the records confirming it. Should a matter go
to trial, the judge or jury decides liability
based on the evidence presented. Carefully kept records of sweep schedules may
be extremely valuable.
The author was also involved in the
defense of a liability claim against a major retailer. The claim resulted from a
customer slipping and falling, sustaining claimed injury, on the store premises.
What allegedly caused that slip and fall?
A clothing hanger lying on the sales floor.
While a business cannot simply post
an individual to constantly watch an area
to the exclusion of all else, it can certain-
ly highlight the importance of paying
attention to problems. Major emphasis
on inspection while involved in other
duties is always good; look for possible
problems while pursuing one’s regular
duties. If a problem appears, correct it or
call for assistance to do so. Losses for the
employer affect the employees, as they
increase operating costs such as insur-
ance premiums and if taken too far, may
cause a shut down.
Suppose that a problem has been discovered, but no appreciable action was
taken to rectify it? Consider guests staying
in a hotel with valuable property in their
room. The lock on the sliding glass door
is found to be broken and is reported, but
no immediate action is taken by the hotel to repair the problem. Subsequently,
when the guests leave to go out, the room
is entered by a thief thru the unlocked
glass sliding door and property is stolen.
The guests then make a claim against the
hotel for the value of the property.
Most likely the hotel should have taken
action upon being notified of the problem. In such a scenario there are multiple
ways the door may have been secured.
Many hardware stores have simple de-
vices available to attach to tracks to pre-
vent the door from opening until the lock
could be repaired. Even a suitable length
of wood or a pipe in the track could pre-
vent the door from sliding open.
In a situation like this there are a few
other considerations. For example, many
states have statutes attempting to limit a
hotel’s liability for loss or theft of prop-
erty from rooms and require notice if
safes are available. This can definitely
affect outcome. But, suppose it was not
loss of property, but rather an intruder
who caused personal injury to the oc-
cupants. Potentially a very serious mat-
ter, especially if little action was taken or
the guests were not relocated to another
room. Liability could be great.
Preventing any and all problems is simply not possible, but adjusters and risk
managers can encourage clients to think
and act in advance. Creating a proactive
mindset may help to reduce liability, if
not eliminate it.
John Gregory Service is an attorney
based in Boca Raton, Fla. He has been a
member of the Florida Bar since 1974 and
is also a Florida Supreme Court Certified
Circuit and County Court mediator. He has
been involved in mediation and arbitration as alternative methods of dispute
resolution for more than 20 years and has
extensive experience as a mediator in the
circuit and county courts of Palm Beach
County, Florida, and Broward County.
While retailers often
have periodic sweep
should also be
encouraged to keep their
eyes open for hazards.