


	Under California law, could a customer that was injured after slipping and falling on an applesauce spill in a grocery store be awarded punitive damages by showing the store manager acted with malice because he was informed twice of the spill and failed to have it cleaned for a half-hour because he was eating dinner?
	A judge is not likely to summarily dismiss Jennifer Palmer’s punitive damage claim. To state a claim that an award of punitive damages is justified a plaintiff must present evidence that the defendant’s actions were committed with a willful and conscious disregard for the probable harm that would result from the conduct, as well as showing that the conduct was despicable. Palmer will be able to argue that Martin should have known the probable harm of not cleaning a spill because multiple D&D customers were injured from slipping in the months prior to Palmer’s accident; and despite this knowledge he still failed to have the spill cleaned. Palmer’s argument that Martin’s actions were despicable are less persuasive, but are still reasonable given the facts that six slip-and-fall incidents had occurred in 2009 and Martin still failed to take appropriate actions to maintain the safety of his store 
	On October 13, 2009 at 5:00 pm, Rich Wayne an employee of D&D Markets informed his manager, Paul Martin that there was an applesauce spill in an aisle. Martin told Wayne that he was on dinner break and “didn’t have time to deal with customer complaints.” At 5: 15 pm, another employee, Mary J. Haddigan also notified Mr. Martin of the spill, and Martin responded the same way.  At 5:30 pm on the thirteenth, the plaintiff, Jennifer Palmer slipped and fell on the spill and sustained a serious back injury. Prior to Palmer’s accident five different slip-and-fall incidents had been reported at D&D’s in the year 2009. Palmer is now suing D&D for compensatory and punitive damages related to her injury, and we are examining whether to file a motion for partial summary against the punitive damage claim. 
	In California, a plaintiff can recover punitive damages for a breach of an obligation not arising out of a contract if the defendant acted with “oppression, fraud or malice.” Cal. Civ. Code, § 3294(a) (Lexis 2010). The statute defines malice as conduct that intended to cause harm, or absent intent, the conduct must be “despicable” and committed with “a willful and conscious disregard of the rights or safety of others.” id. at § (c)(1). Courts have characterized conduct as malicious when committed with a conscious disregard of the plaintiff’s rights when the defendant “was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” Taylor v. Super. Ct. of Los Angeles Co., 598 P. 2d 853, 856 (Cal. 1979). 