What Facts Support the Element of Duty for Premises Liability in California?

This question was answered in the recent case of Hassaine v. Club Demonstration Services, Inc., and is a cautionary tale about being careful while shopping at Cosco or another business.

While shopping at the Carmel Mountain Ranch location of Costco Wholesale Warehouse Corporation (Costco) in San Diego, plaintiff Lilyan Hassaine slipped and fell on a slippery substance that she believed was liquid soap.

Claiming serious injuries from the fall, she sued Costco and Club Demonstration Services (CDS), an independent contractor that operated food sample tables within the store.

The trial court granted a motion for summary judgment filed by CDS, concluding that the company owed Hassaine no duty of care.

In the trial court’s view, it was dispositive that CDS’s contract with Costco limited its maintenance obligations to a 12-foot perimeter around each sample table, and that Hassaine’s fall occurred outside that boundary.

The appellate court decided the trial court erred in concluding that CDS’s contract with Costco delineated the scope of its duty of care to business invitees under general principles of tort law.

Businesses have a common law duty of ordinary care to their customers that extends to every area of the store in which they are likely to shop.

While the CDS-Costco agreement may allocate responsibility and liability as a matter of contract between those parties, it does not limit the scope of CDS’s common law duty to customers.

Although CDS protested that this outcome would impose an unreasonable duty covering the entire Costco warehouse, its argument conflates the legal question of duty and the (generally) factual question of whether that duty was breached.

Despite having a duty of ordinary care, CDS would have no liability so long as its conduct was reasonable under the circumstances, which include the distance between CDS personnel and the hazard.

In short, CDS owed Hassaine the usual duty of ordinary care codified in Civil Code section 1714. Breach and causation present triable factual issues precluding summary judgment on those grounds. Accordingly, the judgment was reversed.

On the evening of October 19, 2018, Hassaine was shopping with her sister-in-law at Costco. While walking down an aisle, she slipped and fell. A Costco surveillance video captured the incident.

Hassaine entered the aisle where she would later fall, walking beside her sister-in-law, who pushed a shopping cart. No foreign substance appeared on the floor. The two women stayed in the aisle for about a minute and a half, pulling out various grocery items from the refrigerated display case as they conversed. After they moved on, a dark spot can be seen near where the cart had been located.

Over the next several minutes various people proceeded to walk through the aisle and past the dark spot, including an aproned CDS employee and a Costco employee wearing a baseball cap.

Less than seven minutes after leaving the aisle, Hassaine and her sister-in-law returned. The sister-in-law pushed the shopping cart past the spill, as Hassaine walked behind her with items in her hands. As Hassaine stepped near the spill, she fell flat on her back. Her sister-in-law helped her up. Several Costco employees arrived to assist her and wipe the floor.

Believing she slipped on liquid soap that leaked out of a Softsoap twin- pack carried in the shopping cart, Hassaine sued Costco and CDS for negligence and premises liability, seeking compensatory damages for her injuries.

CDS moved for summary judgment, arguing that it owed no duty to inspect or maintain the location where Hassaine fell.

To the extent a duty did exist, CDS maintained that Hassaine could not prove breach where only seven minutes elapsed between the spill and her fall. CDS also claimed Hassaine could not demonstrate that any alleged negligence caused her fall where she could not identify what substance caused her to slip or provide evidence that this substance was in any way related to CDS.

In other words, CDS claimed that Hassaine could not establish the essential elements of duty, breach, or causation required to prove negligence and premises liability.

Supporting its motion, CDS lodged a portion of the surveillance video, the “Agreement for Demonstration Services” between Costco and CDS, and excerpts of various depositions and discovery responses.

Its lack-of-duty argument turned entirely on the Costco-CDS agreement, which named CDS as an “independent contractor” tasked with providing “demonstration and/or consumer sampling of food and non-food merchandise” within Costco warehouses. The contract defined the “ ‘Work Area’ ” that CDS had to safely maintain as “a Demo workstation and the adjacent 12 [foot] vicinity.”

Witnesses testified that based on measurements, Hassaine fell somewhere between 16 and 17 feet from the nearest CDS sample table.

Hassaine challenged CDS on both the law and the facts, arguing that CDS owed its invitees a duty of reasonable care irrespective of anything in its private agreement with Costco.

Factually, she suggested there remained triable issues of fact as to whether CDS and Costco employees in practice acted as mutual agents for ensuring floor safety; whether the spill had migrated to within a 12-foot perimeter by the time she fell; and whether Costco and CDS’s conduct was reasonable under the circumstances.

Hassaine offered deposition testimony by several Costco and CDS employees who confirmed that CDS employees typically notified Costco of any visible spills and acknowledged that the video showed a CDS employee twice walked past the spill in the seven minutes before Hassaine fell.

Following oral argument, the trial court entered a written order granting CDS’s motion for summary judgment, concluding Hassaine could not establish that CDS owed her any duty of care: Here, Costco contracted with CDS to provide product demonstration services.  The contract between CDS and Costco defines the "work area" as the 12-foot radius of the "Demo workstation."

Thus, the trial court ruled, based upon the terms of the contract, CDS is reasonably responsible for the area within 12- feet of the workstation. Here, it is undisputed that the area where Hassaine fell was more than 12-feet away from the center of the workstation. Thus, based upon the undisputed material facts, CDS did not owe Hassaine a duty.

Hassaine contended the trial court erred as a matter of law in concluding that the Costco-CDS Agreement limited the scope of its duty of care.

The appellate court agreed.

CDS’s duty of reasonable care was not limited to its contractually defined work area, but also extended to the areas where its customers could be expected to shop.

Whether CDS’s conduct was reasonable under all the circumstances presented a jury question, as did whether inaction by CDS was a substantial factor in causing her fall.

Accordingly, summary judgment was not proper on grounds of duty, breach, or causation.

The essential elements for both negligence and premises liability are duty, breach, causation, and damages.

The trial court concluded that Hassaine was defeated by the first element because CDS did not owe her any duty of care.  Duty, being a question of law, is particularly amenable to resolution by summary judgment.

Whether a duty exists is a question of law to be resolved by the court.

Because the trial court granted summary judgment on the basis of no duty, it did not reach CDS’s alternative arguments regarding breach and causation. But regardless of the court’s stated reasons, the appellate court was compelled to affirm the judgment if it was correct on any ground the parties had an adequate opportunity to address below. As the appellate court explained, summary judgment was unwarranted on any of the three asserted grounds.

The question of whether one owes another a legal ‘duty’ so as to face tort liability upon breach is not really a question at all. It is instead a shorthand statement of a conclusion—only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.

Here, CDS had a special relationship with Hassaine that gave rise to a common law duty of reasonable care. This duty was not constrained by its contractual arrangement with Costco defining the scope of its work area and cleanup responsibilities.

It is a basic precept of tort law that each person has a duty to exercise ordinary care and is liable for injuries resulting from a failure to act reasonably under the circumstances—Civil Code section 1714 reflects this default rule.

Courts depart from this general rule only where a statute creates an exception, or the policy considerations articulated in Rowland v. Christian require the courts to create one.

Applying these concepts in another case ,the court concluded that a major grocery store chain owed a common law duty of reasonable care to fellow motorists and therefore could be liable for negligence following an accident that occurred alongside an interstate highway after one of its truck drivers pulled over to eat a snack. No considerations of foreseeability or extrinsic policy under Rowland justified departure from the general rule that the grocery chain owed other motorists a duty of care.

Civil Code section 1714, subdivision (a) provides: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.”

Under Rowland, a court might depart from the default duty rule by balancing factors such as the foreseeability of harm, certainty that plaintiff suffered injury, connection between defendant’s conduct and injury, moral blame attached to defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to community of imposing a duty to exercise care with resulting liability for breach, and availability, cost and prevalence of insurance for risk involved.

While broad, the default duty rule also has limits. It typically applies only where it is the defendant who created the risk of harm to the plaintiff; the law does not impose the same duty on a defendant who did not contribute to the risk that the plaintiff would suffer the harm alleged.

Even where a person discovers another in peril and is in a position to help, that person is generally not liable in tort for failing to protect the potential victim if he or she did not contribute to creating the risk.

As a rule, one has no duty to come to the aid of another. A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act. Despite criticism that this “no-duty-to-protect” rule produces seemingly repugnant outcomes, it is grounded in various policy reasons.

Perhaps because of its harsh results, the no-duty-to-protect rule is not absolute.”

Where there is a special relationship between the parties that gives the victim a right to expect protection from the defendant, the law imposes an affirmative duty to protect.

The nature of the parties’ relationship puts the defendant in a unique position to protect the plaintiff from injury, and the law requires the defendant to use this position accordingly.

One such special relationship exists between businesses and their invitees: a business or other possessor of land that holds its premises open to the public owes a duty of reasonable care to those who are lawfully on the premises regarding risks that arise within the scope of their relationship.

Although a store owner is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe.

By inviting the public to its store, an owner or possessor has the duty to exercise ordinary care and prudence to keep the aisles and passageways of the premises in and through which, by their location and arrangement, a customer in making purchases is induced to go, in a reasonably safe condition so as not unnecessarily to expose the customer to danger or accident.

This duty extends to all parts of the premises over which the business proprietor has control. A restaurant has a duty to maintain a common passageway outside the leased premises, over which it exercised control.

Irrespective of control, it also extends to all property the proprietor impliedly adopts and invites others to use.

By California law, an invitee is one who by express or implied invitation is brought or comes on to the premises for the land possessor’s advantage, or their mutual benefit or common interest.

As a general matter, a business invites its customers to all parts of the store where its customers would be expected to go. 

The question of duty focuses on the general category of negligent conduct alleged by the plaintiff, without regard to the particular facts or evidence.

In other words, do third party sample vendors generally owe a store’s customers a duty of care?

Although there is generally no duty to protect another from a peril the alleged tortfeasor did not help create, a well-recognized exception to this “no- duty-to-protect” rule applies to the special relationship that exists between a business and its customers.

Accordingly, the question was whether CDS is part of the business enterprise—which by virtue of its special relationship to its customers bears an affirmative duty to protect them even if a third party created the peril—or is more akin to fellow Costco shoppers— who would owe no duty to warn even if they saw the liquid on the floor and could have prevented Hassaine’s fall.

Framed in this manner, it is readily apparent that CDS was part of the business enterprise and thus owed Costco shoppers a duty of reasonable care to provide a safe shopping facility.

It would be up to a jury to assess whether any given failure to protect by CDS was reasonable under the circumstances.

The duty of reasonable care is the same under all these circumstances; what varies with the specific facts of the case is whether the defendant breached that duty. That question is generally one to be decided by the jury, not the court.

Finding a special relationship giving rise to a duty of reasonable care is not the end of the inquiry. Even when a special relationship gives rise to an affirmative duty to protect, a court must still consider whether the policy considerations set out in Rowland warrant a departure from that duty in the relevant category of cases.

In other words, is there some special reason in this case not to impose the duty to act reasonably that we recognize and apply in virtually every other case? CDS maintained there was, pointing to the terms of its contract with Costco. The appellate court disagreed.

On the day of the incident, CDS was serving samples of butternut squash kale ravioli to Costco customers at the end of the aisle where Hassaine fell. CDS’s contract with Costco stated that it was an “independently established business separate and apart from Costco,” but nonetheless required CDS demonstrators “to be gracious, helpful and courteous to all Costco members, and to maintain their work area and a reasonable vicinity adjacent thereto in a safe and sanitary condition.” The contract expressly required CDS to maintain its workstation and the adjacent area within a 12-foot perimeter in a safe and sanitary condition.

Notwithstanding the general rule that businesses owe a duty to their customers to keep the premises reasonably safe, CDS argued that an exception should be recognized, and no duty imposed on independent contractors whose responsibility for the premises is limited by their contract with the business.

On the particular facts of this case, CDS maintained that it owed customers no duty to address hazards outside the 12-foot perimeter specified in the contract. Accepting this argument, the trial court decided that CDS’s contract with Costco limited the scope of its legal duty.

Simply put, CDS’s argument confuses two different legal theories that are based on distinct sources of legal obligations. The terms of an agreement can certainly affect the scope of a party’s obligation under a contract and its liability for breach.

But the duty to use reasonable care arises not from contract, but from the common law of torts as codified in California in Civil Code section 1714.

There is no legal basis to permit two participants in a business enterprise and potential defendants—here, CDS and Costco—to contractually limit between themselves the scope of the tort duty that one of them owes to a third-party plaintiff/victim who was not a party to the contract.

CDS had a contract that limited the floor area it was responsible for maintaining. But nothing in that contract with Costco limits the scope of its common law duty to Hassaine.

By positioning itself inside a Costco store and offering product samples to Costco shoppers traversing store aisles, CDS had a special relationship with its Costco shopper-invitees that gave rise to a duty to exercise ordinary care.

That duty encompassed not solely the 12-foot “work area” defined in the Costco-CDS contract but extended to all areas that shoppers would reasonably be expected to use—i.e., the entire Costco store.

Its lack of a contractual responsibility to maintain the property outside the 12-foot perimeter is not determinative, as CDS impliedly adopted Costco’s premises and invited its customers to use the Costco aisles.

If CDS personnel became aware of a hazard in a different part of the store, they could at a minimum advise an appropriate Costco employee. Even after customers moved on to another part of the store, it cannot be said that CDS’s invitation to them ceased.

Deciding that the special relationship between CDS and Costco shoppers is unaffected by limitations in the CDS-Costco contract does not end the duty inquiry, and the court must also consider whether any special foreseeability concerns or policy considerations set forth in Rowland otherwise require a departure from the usual duty to exercise reasonable care.

The Rowland factors fall into two categories. Three factors—foreseeability, certainty, and the connection between the plaintiff and the defendant—address the foreseeability of the relevant injury, while the other four—moral blame, preventing future harm, burden to the defendant, and availability of insurance—take into account public policy concerns that might support excluding certain kinds of plaintiffs or injuries from relief.

The most important factor to consider in determining whether to create an exception to the general duty to exercise ordinary care articulated by section 1714 is whether the injury in question was foreseeable.

The court's task is not to decide whether a particular injury was reasonably foreseeable, but rather whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm the plaintiff experienced to warrant imposing liability.

Here, it is not only foreseeable but a matter of common experience that shoppers walking the aisles of a Costco warehouse might slip and fall on a substance spilled on the concrete floor. The very existence of food and beverage samples at tables scattered throughout the store amplifies the risk that a Costco shopper might create a hazard somewhere else in the store.

In summary, by virtue of its special relationship with Costco customers, CDS owed a duty of reasonable care consistent with Civil Code section 1714. Unlike customers who have no affirmative duty to protect their fellow shoppers, CDS (along with Costco) invited customers to use the public areas of the store as they looked at the merchandise being offered for sale and tasted the various samples being offered by CDS.

CDS’s common law duty to Costco shoppers was not defined or constrained by CDS’s separate contractual agreement with Costco.

Because CDS owed Costco shoppers a duty of ordinary care to protect against hazards in the store, it is immaterial whether there is evidence that this substance was in any way related to CDS or proof that CDS was in any way involved in the cause of Hassaine's fall.

LESSONS:

1.         The essential elements for both negligence and premises liability are duty, breach, causation, and damages.

2.         Whether a duty exists is a question of law to be resolved by the court.

3.         It is a basic precept of tort law that each person has a duty to exercise ordinary care and is liable for injuries resulting from a failure to act reasonably under the circumstances—Civil Code section 1714 reflects this default rule.

4.         The duty to use reasonable care arises not from contract, but from the common law of torts as codified in California in Civil Code section 1714. There is no legal basis to permit two participants in a business enterprise and potential defendants—here, CDS and Costco—to contractually limit between themselves the scope of the tort duty that one of them owes to a third-party plaintiff/victim who was not a party to the contract.

5.         Business employees should be alert to slip and fall hazards, and it may have influenced the appellate court that an aproned CDS employee and a Costco employee wearing a baseball cap proceeded to walk through the aisle and past the dark spot without cleaning it.