## Facts

- Richard M. Ortega was shopping in a Kmart store in Torrance, California.
- Ortega slipped on a puddle of milk on the floor adjacent to dairy refrigerators and sustained significant knee injuries, including ligament tears.
- Ortega could not identify how the milk got on the floor or how long it had been there, and he could not describe its condition (e.g., temperature or odor).
- A former store manager testified employees were trained to look for and clean spills and that an employee would typically pass down the aisle every 15–30 minutes.
- The manager also acknowledged it was possible the milk could have been on the floor for up to two hours.
- Kmart did not keep written records of floor inspections.
- Ortega sued Kmart for negligence; a jury awarded Ortega $47,200.
- The Court of Appeal affirmed; Kmart sought review challenging the sufficiency of evidence and the constructive-notice instruction.

## Issues

1. Whether a plaintiff who lacks evidence of the source of a dangerous condition or its precise duration may establish constructive notice solely through evidence that the owner failed to inspect the area within a reasonable period of time.
2. Whether such evidence permits a jury inference (rather than a mandatory presumption) that the condition existed long enough to be discovered and remedied through ordinary care.

## Decision

- The California Supreme Court affirmed the judgment for Ortega.
- The court held that evidence of a failure to inspect within a reasonable period of time can support an inference that the dangerous condition existed long enough to provide an opportunity for discovery and remediation.
- The court concluded the evidence permitted a reasonable jury to find constructive notice, given the lack of inspection records and testimony that the aisle might have gone uninspected for an extended period.

## Legal Principles

- A premises owner is liable for injuries caused by a dangerous condition only if the owner had actual or constructive notice of the condition in time to correct it.
- The plaintiff bears the burden to prove actual or constructive notice sufficient to permit corrective action.
- Constructive notice may be proven circumstantially by showing the area was not inspected within a reasonable period of time, allowing a factfinder to infer the condition existed long enough to be discovered through ordinary care.
- The inference arising from an unreasonable inspection lapse is permissive, not mandatory; it supports a prima facie case and is generally for the jury to assess.
- No fixed minimum time is required to show constructive notice; reasonableness depends on the circumstances, including the nature of the premises and the expected risk in a self-service retail setting.

## Conclusion

The court upheld a jury verdict for an injured customer, holding that a retailer’s unreasonable failure to inspect an area open to customers may permit a jury to infer constructive notice of a spill even when the plaintiff cannot prove how the spill occurred or its exact duration.


Ortega v. Kmart Corp., 26 Cal. 4th 1200 (Cal. 2001)