Kummer v. Fred Meyer Stores, Inc.

In order to survive summary judgment under a constructive knowledge theory for a premises liability claim, the plaintiff must produce evidence that shows how long the hazard was there for.

Plaintiff brought this premises liability claim after she slipped and fell in a Fred Meyer store on a soap-like substance. The trial court granted Defendant’s motion for summary judgment on the grounds that Plaintiff failed to present evidence about the length of time the substance was on the ground. Plaintiff relied on a constructive knowledge standard which required her to prove the foreign substance had been on the floor “for such a length of time that the occupant should, by the exercise of reasonable diligence, have discovered and removed it.” On appeal, Plaintiff claimed she was prepared to provide expert testimony that showed the store breached its industry standard of care by failing to adhere to the correct cleaning and inspection schedule, and that the trial court erred in granting summary judgment to Defendant. The Oregon Court of Appeals affirmed the trial court’s decision, finding that the record on summary judgment did not contain any evidence from which a jury could find that the substance on the floor had been there for a sufficient amount of time to permit a finding that Defendant should have known of its presence. The expert testimony that there was a deviation from industry standard was not sufficient. The trial court’s decision was affirmed.