Slip Slidin’ Away – The Difficulty of Slip and Fall Cases

Underneath the heading of “personal injury” comes many types of cases, but typically the two most common are car accident cases and slip and fall cases. While they may both result in injuries, they are very different legal beasts.

Car crash cases are generally uncomplicated: There are two wrecked cars, usually one driver has gotten a ticket which establishes fault, and the other driver is now injured as a result of this explosive impact. Since liability is established and causation of injury is as well, a personal injury attorney’s main task is to maximize the value of a client’s case with the insurance company. In other words, with two legal issues already proven, lawyers can hone in on the last element of the case – damages. Simple enough!

The so-called “premises liability” cases, are made up of slip-and-fall and trip-and-fall cases. There is much to prove and often nothing is a given.

Take the case of “Martha” who went food shopping alone at a big chain store in Palm Harbor.  She was there to pick up just a few things, so she got a basket to carry, rather than a push cart. Maybe in a bit of a hurry since she had just gotten off of work, she dashed off to produce to get some peppers for tonight’s stir-fry. Before getting to the veggies, she walked through the fruit department. Unbeknownst to Martha, a number of grapes had fallen off the vine and fell to the floor some time prior. Martha didn’t see the already squashed grape, stepped right on top of it with her heel and before she knew it was airborne and came down right on her butt.

Because it was close to dinner time, the grocery store was somewhat empty. In fact, nobody saw Martha fall. Wanting to keep it that way, Martha picked herself up, brushed herself off and limped out of the store feeling terribly embarrassed even though she wasn’t seen.

A few hours later, Martha felt awful. Her low back was in severe spasm, the back of her head was aching where it hit the floor and she felt bruised everywhere.  She returned to the store, asked for a manager and had him fill out an incident report about her fall which he did, dutifully.

With this, Martha felt she did her best to report the fall and could now get the medical treatment she needed and hire a personal injury lawyer in case she sustained a serious injury as a result of the grocery chain’s carelessness.

Good case? Hardly! Where to begin?

Proof of Being There: Many, many people go food shopping alone, so there often isn’t somebody close by to see the mechanics of the fall. Often well intentioned witnesses would help Martha up, but then leave the scene without advising of their name. In this case, Martha slipped in and out (pun intended) without anyone seeing her. Is she caught on surveillance cameras? Maybe, but the cameras typically don’t canvass 100% of the store and the images are also regularly erased if nobody requests the store to preserve the images (also known as “spoliation of the evidence”). How can Martha even prove she was there? Simply put, she cannot.

Martha as a Claimant: Martha might think, “I was there, I fell and I’m hurt. I’m a good person and I wouldn’t lie. What’s the problem?”  Oh Martha, where to begin?  Martha had just gotten off of work, was late to get home to prepare dinner, was in a bit of a rush to pick up that pepper, failed to see a  grape on the floor and, still in her work clothes, was wearing high heel shoes. That formula: Being late, rushing through a store, not paying attention to the floor and wearing heels is a typical set-up by the defense for comparative negligence. In other words, a jury could find Martha guilty of a percentage of responsibility for her own fall. The jury could find the store’s responsibility is, say, 60%, and her fault for rushing around in heels to be 40%. Or 50-50. Or anywhere in between there.

Did the Store Employees Screw Up? Just because Martha fell doesn’t mean it is the store’s fault. A claimant has to prove that the store knew or should have known of the existence of a condition that might have caused one to fall, and that they neglected this responsibility.  Martha fell, not on a fresh whole grape that may have just fallen off the shelf, but on an already squashed grape. Believe it or not, a good case vs. a bad case comes down to elements of time. Was the transient object down for a sufficient time for the store to have known of the need for a clean-up? A bright yellow banana peel may only have been on the floor for seconds; a brown banana peel with cart tire tracks on it most likely has been on the floor for long enough for a responsible retail store to have discovered it, picked it up and cleaned the floor. An argument can be made by a competent attorney that Martha falling on an already squashed grape at least passes the test for a minimum amount of time to have passed. Most supermarkets do a visual “sweep” of each aisle every 20 minutes. This seems to be the standard for most markets.

The reality is in Martha’s case, she probably doesn’t have much of a case because she didn’t track down someone at the market, show him what she fell on, and immediately document the fall with the manager. So, lawyers everywhere always advise clients that despite the embarrassment, despite the desire to flee after a fall, document, document, document! If you’re injured it may make the difference between having a viable case or not.

One Response to “Slip Slidin’ Away – The Difficulty of Slip and Fall Cases”

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