Yoonnie and the tea in the Mall
Darnestown Malls, Inc. (DMI) owns and operates a mall in a U.S. state. During the holiday season, as is customary for malls nationwide, DMI allows independent vendors to rent space in its common areas so that they can sell their wares to mall shoppers. Each independent vendor pays DMI rent in exchange for space. DMI provides no insurance coverage or any guarantees for services to these independent vendors. Vendors provide their own carts, displays, products, services, signs and all related business materials. Vendors agree to keep their areas clean and to place all trash in large bins DMI provides. In turn, DMI in tum provides cleaning services for the common areas. DMI also employs on-site staff who provide maintenance, customer support, emergency health, and security
Over the past six months DMI, like many businesses, suffered major financial losses. Retail sales had been down, and projections for the holiday season were that income would be significantly lower in 2008 than in the past. As a result, DMI laid off a number of its staff, retaining only a very limited number of employees to provide essential services. By significantly reducing its staff, DMI was operating its mall with fewer service employees than was customary for similarly-sized malls.
Starting in December 2 008, Yoonnie, who had immigrated to the US from Laos in November, rented space from DMI to sell Laotian products she had imported. Yoonnie sold handicrafts and accessories such as carved figurines, dishes, and jewelry. Yoonnie followed the custom of some of her business colleagues in Laos and other parts of Asia, providing shoppers with a small cup of herbal tea as they looked over the products in Yoonnie's cart. Yoonnie brewed the tea at home, bringing a large insulated container with her to the mall every day. As the holiday season progressed, increasingly large numbers of people shopped at the DMI mall. Because Yoonnie's cart displayed wonderful colors, had unique and relatively inexpensive handicrafts and accessories, and Yoonnie herself always looked happy, Many people at the mall were attracted to her cart, stopped and bought items from her. Most of these shoppers willingly accepted Yoonnie's offer of tea, which Yoonnie provided in a small cardboard cup.
Starting on Saturday, December 13, 2008, the mall became particularly busy--surprisingly so, given the economic recession-and Yoonnie was doing a lot of business. Almost all of Yoonnie's customers gratefully accepted the cup of warm tea, and then continued on to do other errands in the mall, carrying the cup of tea with them. Yoonnie had a trash can at her cart, and customers who finished their tea at her cart tossed the empty cardboard cups in it. Those who continued down the mall carrying their cups usually placed their empty cups in a large public trash container fifty feet away from Yoonnie's cart (Bin A).
On December 17, all the trash bins in the mall, including Bin A, were filling quickly, given the large numbers of people at the mall. DMI's small number of employees performing security, maintenance, cleaning, and customer care services were extremely busy. By 11 :30 a.m., Kelly, a security officer, whose duty it was to patrol throughout the mall, noticed that the mall trash bins were quickly filling. She knew that her job was to tell her supervisor so that her supervisor could send someone to empty the trash; alternatively she knew that she was supposed to empty them herself if she was not
actively engaged in some security or other emergency issue. Kelly, however, did not want to take out the trash. Even when, at 12:15 p.m. she saw that Bin A was overflowing with trash starting to pile up around it, she decided to wait for someone else to clean it up.
Kelly continued to patrol the mall all afternoon. She noticed the overflowing trash, but did not further notify her supervisor, correctly thinking that if she mentioned the trash problem again, her supervisor would direct her to take care of it.
At 6: 15 p.m. the same day, Patki, a fitness instructor and personal trainer, was shopping at the mall when he slipped and fell on some trash near Bin A. Much of the trash on the floor contained discarded cardboard cups from Yoonnie's customers. Leftover tea had come from the mostly-empty and discarded cups and spread to other trash and along the floor. The mall's tile floor was slippery when wet, and when Patki stepped on the sodden trash, he fell down hard. Patki was wearing running shoes and comfortable clothing. Patki broke his pelvis in the fall and had to be in a wheelchair for 8 weeks. He was out of work for 3 months, and lost a number of individual clients because of it. Within 4 months, Patki had completely recovered.
Yoonnie has hired you to advise her about her liability for Patki's injuries. She saw the commotion when Patki fell and heard Kelly and others talking about she shouldn't be providing tea to her customers. A neighboring vendor also made her worried because a state law prohibits anyone from selling food or beverages without a license. The act is contained in a section on Health and Safety-Food and Drug.
Please examine the case and advise Yoonnie. Indicate if any party can seek damages and the type of damages likely to be sought.