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A new judgment from the Supreme Court of Appeal (SCA) in Bloemfontein should concentrate the minds of all who own or manage spaces accessible to the public – particularly as they prepare for the wet Cape winters. The SCA had to consider whether the owners of a mall and the cleaning company they hired were liable to compensate a woman shopper who lost her balance on a floor made slippery by rain and was “walked in” by other shoppers, then fell and broke her elbow.

Read judgment

The case concerns Nicolene Holtzhauzen, 31, who went shopping one rainy Saturday morning at a mall in Goodwood. She wanted to draw cash from an ATM, but on the way to the machine, she slipped and fell on the tiled floor inside the mall, breaking her elbow.

That prompted a claim for damages at the high court in Cape Town, where she sued the management company in charge of the mall (Cenprop Real Estate) as well as the owners at the time, Naheel Investments. In terms of the agreement between these two parties, Cenprop had to maintain the buildings and grounds “in good condition,” though cash flow “pressures” were to be a factor.

When the high court dismissed Holtzhauzen’s claim against the owners and the management company, she appealed to a full bench of the high court, which found in her favour. The disappointed owner and management company then took the matter to the SCA, hoping it would rule in their favour. Five appeal judges heard the matter, and they have now given their unanimous decision: once again judgment was in favour of Holtzhauzen.

Danger for members of the public

When the case was heard by the SCA in Bloemfontein, Holtzhauzen said that the management company and the owner knew that the floor’s surface was slippery when it became wet and that there was thus a danger for members of the public. She added that the owner and managing company failed to make sure that the surface did not become slippery, and they allowed the floor to “remain slippery” even though they knew that members of the public used the area when they entered and left the mall.

But Cenprop and Naheel denied they were negligent. They said the incident was caused by one problem only: Holtzhauzen’s negligence. She didn’t keep a proper lookout, and she didn’t take “reasonable care,” they said.

Naheel took the matter even further, saying that Cenprop had been employed to manage and make regular, physical inspections of the premises, particularly after any contractors had worked there. Cenproper was also to help with maintenance, including the surface area of the floors. In other words, according to Naheel, Cenprop was “at all material times in control of the premises.”

Rubber-soled shoes

The court heard that on the day Holtzhauzen slipped, the floor in the passage where she entered the mall was wet because it was raining. But while the tiles would have been slippery, there was a “wet floor” sign to warn customers walking into the building. There was also a liability disclaimer where shoppers entered or exited the mall. Whether the sign would have been visible to the public, however, became a matter of further dispute.

The evidence from Holtzhauzen was that she had been wearing rubber-soled boots. She said she’d walked slowly and carefully along the corridor as the floor was wet. Despite her caution, however, she fell just 20 paces from the entrance. At the time of the fall, she was carrying her 11-month-old baby and was walking with two other children.

Dangerously slippery when wet

One piece of crucial evidence was given by an architect, called as an expert witness by Holtzhauzen. According to his testimony, the tiles used in the mall weren’t appropriate because they weren’t non-slip. They were smooth and would be dangerously slippery when wet. The arrangements at the entrance weren’t adequate to keep water from being brought into the mall on the shoes of shoppers. Given the kind of tiles that were in place, it would have taken someone cleaning behind every person to keep the floor entirely dry, he said. Those tiles are undoubtedly slippery when wet, and it would be almost impossible to keep them sufficiently dry so as not to be slippery in wet weather.

The shopping centre manager testified for Cenprop, spelling out his experience, his duties, and the details of the work that the cleaning company was supposed to do. He said he physically inspected the mall daily to see if anything, over and above the normal cleaning, needed to be done.

He agreed that it was possible for water to be “walked in” and that the mall had disclaimer signs, warning shoppers that they entered at their own risk. Photos of the disclaimer showed, however, that it was hidden behind goods in a hardware store, although the court noted that the photos were taken some months after Holtzhauzen fell.

Additional hazard

The court found it had three issues to resolve. Was Holtzhauzen negligent? Had the mall and the cleaning company shown a proper duty of care by employing a suitable, independent contractor? And did the disclaimer indemnify the cleaning company from liability for her injuries?

On the basis of her negligence, the owners claimed it wasn’t the wet floor that caused the problem and that there wasn’t anything more they should have done to prevent her fall. No one else had fallen for the previous three and a half years, and no one else seemed to have fallen on the day that Holtzhauzen slipped.

The two steps suggested by the full bench of the high court were therefore not necessary or even reasonable: these suggestions were to stop the public from coming into the part of the mall that got wet when it rained (essentially closing the mall on rainy days) or, alternatively, to put down different and longer walking mats at the entrance, an idea that an expert said would create an additional hazard.

But the appeal court judges disagreed: there was no basis to find that Holtzhauzen had been in any way negligent, they said.

“Rainy weather posed a special and foreseeable situation that ought to have been mitigated.”

The SCA also rejected the argument that the owners of the mall weren’t liable because they had employed an independent cleaning company to ensure the floors were clean, dry, and safe. Given the experts’ agreement that the tiles used in the mall weren’t safe when it rained, the owners had to take reasonable measures to ensure members of the public didn’t slip. On its own, hiring a cleaning company wasn’t enough to discharge that duty.

Given that the tiles got slippery, spillages were not unexpected; they were reasonably foreseeable when it rained. Against that background, the contract with the cleaning company ought to have stipulated what steps to take on wet days. There wasn’t anything on this subject in the contract, however.

Unlike accidental spillages that might unexpectedly affect the floor surface at the mall, “rainy weather posed a special and foreseeable situation that ought to have been mitigated.” The contract didn’t anywhere stipulate the extra attention required to keep the floors dry during rainy conditions, despite the fact that rainy conditions made it reasonably foreseeable that there might be harm and danger to shoppers.

Another reason the cleaning company couldn’t be held liable was that the choice of tiles was the responsibility of the owners, not the cleaning company.

Disclaimer hidden

What about the notice disclaiming liability? Though the owners said there were such disclaimers, Holtzhauzen said she had never seen them. The court held that in any case, they wouldn’t absolve the owners of liability. These notices reflected the names of a previous owner of the mall, not the owners at the time of the incident. There was also no evidence that the signs were there when the incident took place. And there was further evidence that the signs were hidden by merchandise and weren’t easily visible to shoppers.

This meant that the owners and the cleaning company lost their appeal, and the matter must now go back to court to work out the amount of compensatory damages that should be paid to Holtzhauzen.

It’s a judgment that owners of all buildings used by the public need to study. The Western Cape’s long, wet winters loom – and with them, the reasonably foreseeable chance that someone will fall if the floor surfaces are slippery.