French%20Fry%20Case - JUANITA MOORE Plaintiff and...

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JUANITA MOORE, Plaintiff and Respondent, v. WAL-MART STORES, INC., Defendant and Appellant. COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT 111 Cal. App. 4th 472; 3 Cal. Rptr. 3d 813; 2003 Cal. App. LEXIS 1275; 2003 Cal. Daily Op. Service 7533 August 19, 2003, Filed SUBSEQUENT HISTORY: [***1] Rehearing denied by Moore v. Wal-Mart Stores, 2003 Cal. App. LEXIS 1409 (Cal. App. 5th Dist., Sept. 5, 2003) Review denied by Moore v. Wal-Mart Stores, 2003 Cal. LEXIS 8689 (Cal., Nov. 12, 2003) PRIOR HISTORY: APPEAL from an order of the Superior Court of Stanislaus County No. 274971. Terry K. Cole, Judge. The jury found the store owner negligent and returned a verdict in favor of the injured patron. (Superior Court of Stanislaus County, No. 274971, Terry K. Cole, Judge.) DISPOSITION: The judgment is reversed. Costs on appeal are awarded to appellant. COUNSEL: Phillips, Spallas & Fotouhi, and Robert K. Phillips for Defendant and Appellant. Law Offices of Mark S. Nelson and Mark S. Nelson; Law Offices of Tony J. Tanke and Tony J. Tanke; Ringhoff & Toledo, Stephen J. Ringhoff and Theressa Y. Toledo for Plaintiff and Respondent. JUDGES: Levy, J.; Dibiaso, Acting P.J.; and Cornell, J., concurred. OPINIONBY: Levy OPINION: [**815] [*474] Levy, J.--Respondent, Juanita Moore, slipped on a french fry in one of appellant Wal-Mart Stores, Inc.'s (Wal-Mart) retail outlets. Moore sustained significant personal injuries for which a jury returned a verdict in her favor. This appeal challenges the judgment on the ground that the jury was incorrectly instructed on liability. Although established California law imposes liability only if the owner had actual or constructive knowledge of the dangerous [***2] condition that precipitated the fall, the trial court omitted this notice requirement from the jury instructions. Rather, the court took the position that, by incorporating a fast food [*475] restaurant within the store, Wal-Mart could reasonably anticipate that such a dangerous condition would regularly arise. Consequently, Moore recovered without
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proving notice. Several of our sister states have embraced the trial court's viewpoint. Nevertheless, it is not the law in California. Consequently, the judgment will be reversed. STATEMENT OF THE CASE AND FACTS Wal-Mart's store in Ceres, California, leases space to a McDonald's franchise. A sign posted by McDonald's asks customers to enjoy their food and drink inside the restaurant. Approximately once an hour Wal-Mart makes a similar request through an announcement over the store's intercom system. Nevertheless, customers regularly consume food and beverages without interference while they browse and shop. When Wal-Mart employees witness such behavior, they do not ask these customers to refrain from eating outside of the designated areas. The maintenance crew at the Ceres Wal-Mart completes a safety sweep of the entire [***3] store every one and one-half hours. Additionally, all employees are trained to regularly check their departments for hazards and to immediately clean up merchandise and other items they see on the floors.
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