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Guarding against 'banana skin' lawsuits

01 October 2008 Garlicke & Bousfield Inc.

In a recent case decided in Pietermaritzburg the presiding judge stated:

“The duty on the keeper of a supermarket to take reasonable steps is not so onerous as to require that every spillage must be discovered and cleared up as soon as it occurs. Nevertheless it does require a system which will ensure that spillages are not allowed to create potential hazards for any material length of time, and that they will be discovered, and the floor made safe, with reasonable promptitude.”

Not infrequently the courts are called upon to decide cases where people slip, fall and injure themselves, often quite badly. Sometimes these accidents occur on pavements, sometimes in commercial or residential buildings and most often, it would seem, in shops. Moreover, from the cases which come before the courts for decision, the most dangerous place in any shop or supermarket appears to be the fresh produce section where cabbage leaves or other forms of vegetable matter or bits of fruit may fall and provide a trap for the unwary shopper. What, then must the shop-owner do to protect himself against claims which can be very substantial depending upon the nature of the injury suffered by the customer?

It is obviously not possible, having regard to the nature of the goods that are displayed and sold in the fresh produce section, to ensure that nothing ever falls to the floor to create a hidden danger. For instance, one customer might carelessly dislodge an item of produce that the following customer immediately treads upon and slips. Accordingly, what the law requires is that the shop-owner has in place an adequate system to ensure that any potential hazards are cleared up with reasonable promptitude. It is, however, not merely the length of time that the hazard remains undetected which will decide whether the shop-keeper’s system is adequate but whether reasonable steps have been taken to guard against the possibility of the particular “banana skin” causing harm to customers.

Facts which have to be taken into account in this regard are, therefore, the number of cleaners whose job it is to sweep up or mop up potential hazards in relation to the size and configuration of the store and the nature of both their duties and the duties of other employees in the shop or store who must deal with a spillage before the dedicated cleaners are able to attend to the problem.

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