What makes this case interesting is that Judge Strassburger published a concurring opinion in which he suggested that the plaintiff could not prove that the dangerous condition was the result of Chester Downs' negligence, or that Chester Downs had notice of the condition. Under Pennsylvania law, this is a necessary element of a slip-and-fall case.
Judge Strassburger suggested, however, that:
Where a customer has sustained injuries although neither the customer nor the store has [potentially] behaved negligently, it would be more fair to hold the store responsible than to place the risk on the consumer. Accidents such as these are foreseeable risks of conducting this type of business, and commercial businesses are in a far better financial position to absorb the cost by spreading the risk among thousands of customers. Between these two [potentially] innocent parties, fairness should require the store to pay as a cost of operating its business.Of course, there are flaws in this logic. If Bill Gates were to slip-and-fall at a mom-and-pop grocery store, clearly he, and not the store, would be in the better position to absorb the cost. Put another way, Judge Strassburger's opinion is premised on the assumption that corporations will usually have more disposable income than individuals. This is not always the case. An additional concern is that, by imposing a strict-liability standard on corporations, the cost of liability insurance would skyrocket. There is, moreover, an intrinsic appeal to the argument that, where the corporation is not actually at fault, the risk should be placed on the party most able to avoid it by just, well, watching out.
On the other hand, Judge Strassburger's assumption-that stores usually are better equipped to absorb catastrophic medical bills than their customers-is frequently correct. And there's a large gap between instances in which stores have behaved negligently, and in which even the most skillful attorney can prove it. Judge Strassburger's suggestion would narrow that gap and, in economics-speak, avoid some of the deadweight losses. There's something to be said for that.
Regardless, even the hint that the Court is considering a move away from the bedrock principle of Pennsylvania slip-and-fall law is an exciting one. It's also something that's worth putting in front of a trial court judge in narrow cases.
