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Tis the Season for Retailers to Know their Premises Liability Risks

Nothing says Happy Holidays like the hustle and bustle of Christmastime commerce. Crowded stores, congested parking lots and package-laden shoppers are a welcomed tradition to retail outfits that realize roughly twenty percent of annual sales during the holiday season. But with all the hustle and bustle also comes the increased risk of incidents: the combination of lots of shoppers and lots of merchandise means a greater chance of spills and tumbles (of products and people). The last thing stores want to do is curb retail activity, but how do they keep tabs on potential dangers that could lead to customer injury and legal liability?

Fortunately, South Carolina retailers operate in a state that recognizes customer responsibility to avoid injury where the risk is obvious: “The owner of property owes no duty to use reasonable care to take precautions against or to warn guests of open and obvious dangers. In such situations, the guests themselves have a duty to discover and avoid the danger.” Hackworth v. United States, 366 F. Supp. 2d 326, 330 (D.S.C. 2005). This business-friendly approach to premises liability was recently confirmed by a federal court in South Carolina that dismissed a slip and fall claim arising from a rain-based accident. Lucas v. Sysco Columbia, LLC, 2014 WL 4976509 (D.S.C. October 3, 2014). The court in Lucas went as far as to distinguish between what might be considered “sound practice” and actual legal duty: “While the Court believes it is a sound practice to place mats on the floor of an establishment during inclement weather to avoid accidents such as this, South Carolina law does not impose such a duty.”

This does not mean that retailers can let their stores turn into virtual obstacle courses and ice skate through liability-free. Stores still have a duty to exercise ordinary care and to keep their premises reasonably safe. Under South Carolina law, a retailer may be found liable for injuries sustained on the property where the injured customer can show (1) the injury was caused by a specific act by the retailer that created the danger or (2) the retailer knew or should have known of a “less than obvious” danger and failed to remedy it. So if you precariously stack boxes of Singing Olafs a mile high and they tumble on a shopper, you could be liable. Or if a child, inspired by the mass of Frozen paraphernalia, decides to “let it go” and make a puddle, you could be responsible for any follow-on slip and fall injuries if you let the puddle remain too long. Also, retailers have a legal obligation to warn customers of any hidden dangers about which the retailer knows (or should know).

The bottom line is that, provided you are reasonably thoughtful about not creating hazards and provided you are reasonably responsive to potentially dangerous conditions that may arise amid the bustle, you can worry less about crowd control and focus more on peace, joy and happy shopping.

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