Holloway didn’t actually fall but rather says that he twisted his body and hit his false teeth on an object.
PetSmart has insisted in its answer that customers know that pets are welcomed at its stores and that these accidents are a common reality.
Generally, stores are obligated to make reasonable efforts at inspection and to make safe conditions in a store for business invitees. Holloway insists that it was negligent to allow “animals to enter the premises and deposit feces in such a manner as to create a dangerous and hazardous condition.” He further alleges that the staff should have detected the poop and cleaned it up before he took the fall. To make matters worse, he insists that this particular dog produced poop that blended into this particular color of floor tile.
He has a strong case under existing law. While the false teeth raise some interesting question, he is also claiming a back injury that required surgery. He admits that he had a pre-existing injury but insisted that the twisting made it worse.
The claim presents an interesting flip side to the recent Canadian case where an attorney was awarded damages for a fall in a bar despite that fact that she had a later accident that aggravated her condition. She claimed that, “but for” the fall, she would not have received such serious injuries in the car accident. Here Holloway is suing on the basis of the later accident as opposed to the pre-existing condition.
PetSmart succeeded in having the case transfered from the Norfolk court to the federal court — presumably under diversity jurisdiction.
The store is following the same course as a lawsuit in 2008 when it was sued for a slip and fall on dog urine. U.S. District Judge Jerome B. Friedman dismissed that lawsuit on the grounds that the female plaintiffs could not show that any store employee knew there was urine on the floor. That would appear to downplay the need for reasonable inspections under common law.
Source: Hampton Roads
Jonathan Turley