The Adequacy of the Warning

How many times have you read the news and thought, how stupid must that person have been to ignore that warning sign?   Some ignored signs that have made recent news include the “Don’t Feed the Buffalo” and “No Swimming, Alligators” signs that have resulted in national attention and ended in tragedy. But what constitutes adequate warning when it comes to the legal responsibility of a premise owner?

Premise Liability Law Basics

The area of law that pertains to the legal responsibility of a property owner to people visiting the property is known as premise liability law. Under modern premise liability law, a landowner is charged with a specific duty of care to people on the property that is initially determined by the status of the visitor. If the visitor is a trespasser or a person there solely for his own benefit (since as a salesman), then the duty of care is much lower than if the property is open to the public and the visitor is there as a customer. The duty to the former is to warn of known dangers whereas the duty to the latter is to warn of dangers that they knew or should have known of. The “should have known” language imposes a duty to conduct reasonable inspections of the property.

The Duty to Warn and Adequacy of the Warning

Once a duty is established, there are generally two ways to meet the obligation of that duty 1) to remedy the defective and dangerous condition or 2) to warn the visitor of the dangerous condition. A warning can come in many forms. For an ongoing condition like dangerous animals in a pool, a permanent warning sign may be an adequate warning.  For a spill in a grocery store, an adequate warning might be a sign placed in front of the spill. But the issue in these cases is not always just “was there a warning?” it is whether the warning is adequate to appraise a reasonably prudent patron of the danger and, if it is not obvious, how to avoid the danger.

Adequacy of the Warning

adequate warning signIn determining whether a warning is adequate, one must take into consideration the intended visitor and what they are likely to understand as well as see. In some situations, a warning sign may be adequate for some but not others. For example, if you run a children’s daycare at the beach, a warning sign that reads “no swimming dangerous undertow” is not likely to be an adequate warning to protect you from liability whereas it might be adequate in a place where only adults or children accompanied by adults are expected.

The Grocery Store Warning Sign

Obviously, if a warning sign is not placed where is likely to be seen, it fails to serve its purpose. For this reason, the adequacy of warning signs in grocery stores is often hotly contested. In these cases, an additional factor must be considered: conspicuity.

What is Conspicuity?

Conspicuity is the state of standing out so as to be clearly visible.  Conspicuity takes into account the design of the warning sign itself, the location of the sign, and whether it stands out from its surroundings so as to attract attention.

How Does Conspicuity Factor into a Slip and Fall Accident?

Failure to make a warning sign conspicuous results in an inadequate warning that fails to discharge the duty to warn. Whether a warning sign is conspicuous is a factor a jury must consider in determining whether the premise owner discharged his duty to provide a reasonable warning. A folding orange warning sign in an open walk area may be perfectly conspicuous whereas if it is around a corner or in a hard-to-see place it may not. In a slip and fall case against a grocery store that I once handled, we were able to convince the grocery store that they needed to pay to settle a claim where their employee had placed a folding orange “wet floor” sign near a spill. The problem was that the spill was between two of the flat, open-top coolers (where frozen drinks and meats are often displayed) so that when a shopper pushing her cart came around the corner, she could not see the wet floor sign until it was too late. Had the sign been out away from the coolers instead of tucked between them, she would have likely seen it and avoided the spill.

The Shoppers Duty

As a shopper, you have a duty to keep a proper lookout as you are walking. But the displays in grocery stores are designed to attract your attention off the store floor. This created a need and arguably extra duty on the part of the stores to make sure any warning sign they chose to place is adequate to attract attention. You cannot simply ignore a sign you see, but it needs to be where you are likely to see it.  If you find yourself in the unfortunate position of being injured in a slip and fall accident, talk to a personal injury attorney to determine your rights.

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