Johnny arrives at the restaurant one morning to discover Marshall breaking in through the back door. Johnny yells out and Marshall tries to run away. On the previous evening, one of Johnny's waiters left a mop and bucket on the path that leads from the back door to the back gate. While running away, Marshall steps into the bucket, trips and falls at on his face and breaks his nose. He is still lying on the path and moaning when the police arrive. Marshall is now threatening to sue Johnny in the tort of negligence for the cost of his injuries. Is Marshall likely to succeed