After using a gasoline station in McLean, Virginia for years, I noticed for the first time this sign tucked away on the side on station. It is a sign that would seem to ignore reality since drivers routinely use cell phone and electrical devices (such as car radio, tablets, readers, and video players at gasoline stations. In light of such observed and common practice, what legal value does this sign have for the station.
Such signs are routinely posted to create a legal defense by triggering assumption of the risk or claiming that the sign makes accidents less foreseeable. In states that have decreased or eliminated the use of assumption of the risk in light of the rise of comparative negligence principles, such signs are often cited as a basis for the reduction of any award based on plaintiff’s conduct. It can also be cited as fulfilling a duty to warn business invitees of a latent risk.
However, if it is dangerous to use cellphones at gasoline stations, is this enough given the almost universal practice of making calls while pumping gas?
In Casas v. Wal-Mart Stores, Inc., 201 F.3d 435, the Fourth Circuit considered a slip and fall where a warning was given in the form of a sign on the wet floor of the store. However, the Fourth Circuit noted that the court must still determine “whether the warning given was adequate under the circumstances.” This requires a consideration of “the number, location, and adequacy of the warnings given by defendant.” Is one sign sufficient warning? Indeed, is any sign sufficient warning if there is widespread violations of the rule? Clearly, the danger is not high given the extent of violations that can be observed at most stations.
This danger has been downplayed despite occasional stories of fires involving cellphone use.