The classic routine in which a hapless person “slips on a banana peel” has been a staple of comedy guaranteed to elicit laughter from an audience. Unfortunately, there is nothing funny about watching a similar scene unfold in real life, especially when the person falling down is a patron being seated for dinner or picking up food from a take-out counter.

Transitory foreign substances – banana peels, if you will – pose a significant risk to patrons in the front of the house and are a leading cause of slips and falls. Unlike other businesses, food service establishments play host to many conditions that exponentially increase the risk of slips and falls, including constant food and beverage service, hurried service personnel, and inattentive patrons. Although it is unlikely that a banana peel will be the culprit, the presence of slippery conditions should place all food service establishments on high alert for potential slip-and-fall situations.

A patron injured in a slip-and-fall accident will often file a negligence lawsuit against a food service establishment, and it is not uncommon for a successful plaintiff to obtain a judgment in excess of $100,000. Given such significant risk exposure, food service establishments must know their duties under the law with regard to protecting their patrons from hazardous conditions, as well as take the steps necessary to protect their bottom line from adverse judgments.

Slip-and-fall cases are traditionally based on the duty that a possessor of land owes to a business visitor who is invited to enter the premises for the purpose of conducting business with the possessor of the land. Legally speaking, such a person is considered an invitee, and, under common law, a possessor of land owes a legal duty to protect invitees from hazardous conditions.

Although each state’s common law may have its own peculiarities with respect to defining the precise duty a possessor of land has to protect its invitees, the general duty can be restated in the following manner:

A possessor of land (in this case, a food service establishment) is subject to liability for physical harm caused to his invitees (patrons) by a condition on the land only if:

  • he knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk to such invitees; and
  • he should expect that they will not discover or realize the danger, or will fail to protect themselves against it; and
  • he fails to exercise reasonable care to protect them against the danger.

In the context of a transitory foreign substance, such as a spilled beverage or a spot of grease that has not been cleaned up properly, it is fair to assume that in many cases, the substance will create an unreasonable risk to patrons that they would not discover unless it is brought to their attention, thereby typically satisfying the second element. Similarly, if the establishment were to fail to clean up the slippery substance, or otherwise fail to warn patrons of the dangerous condition despite knowing of its existence, it is fair to say that the third element would also be satisfied.

That leaves the first element: whether the food service establishment knows of, or by the exercise of reasonable care would discover, the dangerous condition. In most cases, food service establishments have a policy of cleaning up slippery surfaces immediately after discovering the condition. Therefore, determining whether an establishment cleaned up a known transitory foreign substance is usually not a matter of significant debate. Yet, should a food service establishment be shown not to have a practice of cleaning up slippery surfaces upon discovery, it may find itself in quite a lot of trouble.

The stickiest issue, then, is usually the determination of whether the food service establishment should have discovered the dangerous condition before it caused injury to a patron. In turn, this issue raises another: a possessor of land’s duty to inspect the premises. Generally speaking, the possessor of land must act reasonably to inspect the premises to discover dangerous conditions. Precisely what is considered reasonable in any given situation depends on the circumstances.

For example, consider a crowded restaurant/bar packed with people on a weekend evening. It may be reasonably assumed that its restrooms will receive significant traffic, thus increasing the likelihood of wet or slippery floors. If a patron were to slip and fall in the restroom, the establishment would have a difficult time defending its position if the restrooms had not been inspected or cleaned since opening for business earlier that day because such a lapse would likely not be considered the exercise of reasonable care to discover dangerous conditions. Conversely, an establishment that takes seriously its duty to protect its patrons would likely implement a policy of inspecting the restrooms several times during the night, with more frequent inspections during the busiest hours.

A food service establishment’s duty to protect its patrons, including the duty to reasonably inspect the premises, may also be found in a state’s statutes. For example, Florida’s statute provides that “the person or entity in possession or control of business premises owes a duty of reasonable care to maintain the premises in a reasonably safe condition… which includes reasonable efforts to keep the premises free from transitory foreign objects or substances that might foreseeably give rise to loss, injury, or damage.” Louisiana has a similar statute requiring reasonable efforts to keep the premises free of any hazardous conditions. Both of these statutes implicitly require reasonable inspections to discover dangerous conditions as soon as is reasonably possible.

According to common law or in some instances state statutes, a food service establishment is required to remove a dangerous transitory foreign substance immediately upon discovery, or at least place adequate signs warning patrons of the dangerous condition. Such long-standing requirements have been widely acknowledged, if not always followed. Of equal importance, though often overlooked, however, is the duty to inspect the premises to discover dangerous conditions before an injury occurs. It is in precisely this circumstance that many owners find that they have failed in their duty, and, consequently, where juries typically decide that a judgment in favor of the injured patron is warranted. For operators of food establishments, when it comes to transitory foreign substances, what you don’t know can actually hurt you.