Valley attorney trio achieve a significant trial and Appellate victory in a premises liability

Kenneth Moskow, Jennifer Anderson and Doug Cullins, (Submitted Photo)

Jones, Skelton and Hochuli attorneys Doug Cullins, Jennifer Anderson and Kenneth Moskow achieved a significant trial and appellate victory in a premises liability case where the plaintiff invoked the “mode-of-operation rule” and “res ipsa loquitur” doctrine.

Plaintiff Kathleen Shafer alleged that while shopping at a Walgreen store, she removed a glass air freshener refill from a shelf and the product fell from its packaging, according to a press release.

The glass refill landed on Ms. Shafer’s foot, the release stated, lacerating her left big toe. Shafer did not notice anything wrong with the refill’s packaging when she picked it up.

Walgreen store employees testified it was common for customers to open products and put them back on shelves. If employees saw an open product during the day, they would remove it.

In addition, Walgreen employees inspected all store products every evening while straightening shelved merchandise and would remove products with opened or damaged packaging. There was no evidence other store customers had ever been injured by a product falling from its packaging.

Ms. Shafer sued Walgreen for negligence and sought more than $3 million in damages. Walgreen moved for summary judgment on the ground there was no evidence its employees: created the allegedly dangerous condition or had actual or constructive knowledge of it.

Ms. Shafer argued in response that she was not required to prove notice under the “mode-of-operation rule,” a release states.

This rule excuses the “notice” requirement of a premises liability claim against a business only where the business could reasonably anticipate that under its particular mode of operation, hazardous conditions would “regularly occur.”

Ms. Shafer also argued she was excused from proving notice under the “res ipsa loquitur” doctrine.

The first element of this doctrine requires the plaintiff to prove that the accident at issue is a type that ordinarily does not occur in the absence of negligence. After the trial court rejected Shafer’s arguments and granted summary judgment to Walgreen, Shafer appealed.

Following oral argument, the Arizona Court of Appeals affirmed in a memorandum decision filed Tuesday, June 5. The appellate court agreed with Walgreen that, that store could not reasonably anticipate the regular occurrence of a hazardous condition where no customers had ever been injured by falling products before.

The mode-of-operation rule therefore did not excuse Shafer from having to prove Walgreen’s actual or constructive knowledge of a dangerous condition. The court also affirmed the trial court’s rejection of “res ipsa loquitur” because Shafer presented no evidence to support the first element of that doctrine. Summary judgment for Walgreen was therefore appropriate.

Mr. Cullins joined JSH in 2003 and became a partner in 2011. He practices in the areas of medical malpractice, nursing home and pharmacy defense, and commercial litigation.

Ms. Anderson handles federal and state appeals concerning a wide range of issues, including commercial law, torts, insurance, governmental liability, employment, workers’ compensation and family law.

Mr. Moskow focuses his practice on medical malpractice and nursing home defense, section 1983 defense, wrongful death and personal injury defense, premises liability defense and transportation defense.

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