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Perfecting slip-and-fall litigation: by selecting a strong case, hiring the right experts, and allocating fault appropriately, you can obtain justice for injured plaintiffs.

Many plaintiff lawyers refuse to take slip-and-fall cases. They argue that these claims are too time-consuming and costly to prepare. But with the right case-screening criteria and premises liability experts, you can defeat many of the legal defenses that often prevent these cases from going before a jury, making it well worth your time and effort to handle them.

Jurors have been receptive to slip-and-fall cases where the injuries are serious and the liability has Been clearly established by reliable, credible experts. Appropriate screening criteria will help you identify clients who have extensive, permanent injuries--not just connective-tissue injuries. (It is often difficult to convince jurors that a plaintiff with a connective-tissue injury is severely hurt.)

Well-selected cases involve issues of corporate responsibility, which jurors can readily understand, having experienced many business-premises hazards as consumers. With the right facts and presentation, jurors may embrace the plaintiff's corporate-responsibility argument and award appropriate damages for pain and suffering, loss of enjoyment of life, and permanent impairment.

Most slip-and-fall cases involve one of the following safety hazards:

* Defect on business premises. Examples include merchandise that has been stacked too high or left on the floor by employees, flooring defects, and improperly attached safety bars in showers.

* Dangerous condition or process. Examples include food spilled on the floor around a self-serve salad bar, liquid leaking from a machine, misplaced floor mats, and an unfenced pool.

* Failure to properly maintain an otherwise safe property, leading to dangerous conditions. Examples include loose handrails and wooden stairs that need to be replaced.

Ask the following questions as you consider whether to accept a slip-and-fall case.

Did the defendant cause or create the defect or dangerous condition? This may sound simple, but clients often do not know what made them fall. The plaintiff must know or must have a witness who can identify the defect or danger. If the potential client does not know why he or she fell, reject the case.

If the defendant did not create the defect or danger, or if the defect or danger is not a common occurrence--a spill on a floor versus a condition that the defendant would probably not notice--avoid the case, because it would be based only on the theory of constructive notice. You should still try to prove constructive notice even when it is clear that the defendant created the hazard, but generally do not accept cases based on that theory alone. Seek to prove both the cause of the defect and constructive notice of it.

Did the plaintiff suffer serious injuries? If you take cases involving only serious injuries, you can avoid many jurors' perception that slip-and-fall injuries are minor and that the plaintiffs deserve less compensation than plaintiffs in other cases.

For every potential case, use a two-step approach. First, determine whether the injuries are serious enough to hold jurors' attention and evoke their sympathy. If so, you will probably be able to maintain the jury's attention while you tackle the second step--proving liability. If the injuries are not severe, jurors may not consider the fault issues seriously or fairly, as some of them may be biased against both connective-tissue injuries and premises cases.

Was the injury immediately reported to the defendant's management? If not, issues arise that could be fatal to the plaintiff's case: His or her credibility may be called into question, and you may lose the opportunity to develop certain evidence against a defendant.

For example, how many times have you seen an incident report that documented an employee's verbal admission that the hazard existed at the time of the client's fall? If the plaintiff fails to report the slip and fall at the same time, the potential to use these "excited utterances" to the plaintiffs advantage is lost. An employee may be genuinely affected when the injury happens and may not have time to reflect coolly or be silenced by his or her employer.

Is the defendant a corporation or other business entity? Avoid cases against individuals, like homeowners. Most jurors can identify with a homeowner, and many reasonable duties of a business owner do not apply to an individual.

Corporations, however, spend significant sums on maintenance and safety, and jurors hold businesses to a higher standard of care. Corporate policies and practices often set the standard of care for a business owner. But jurors will remain sympathetic to a homeowner-defendant who ignores maintenance.

Has the potential client clearly explained the defect or danger? If not, you will have trouble explaining it to the jury. Consider asking an expert to explain the defect or danger. If he or she has difficulty simplifying it, reject the case. Jurors must be able to instantly and easily grasp the liability aspect or the case is a loser. This is not to say that experts don't play an important role in handling premises liability cases. Their role is explained below.

Call in the experts

Although many slip-and-fall cases involve safety hazards that can be proven with testimony from lay witnesses or the defendant's employees and management, it is wise to hire an expert witness who can analyze liability issues. The fields of potential expert witnesses range from engineering to aquatic safety to retail merchandising.

Why should you hire an expert? He or she can analyze the defect and danger, determine the applicability of government codes and regulations, and help establish the duty of a reasonable business owner. The liability issues in these cases may be difficult, and the defense is certain to file a motion for summary judgment with supporting affidavits from the defendant's employees. If you have no expert and leave these issues to a judge, you run a substantial risk that your client's case will be dismissed. State law books are full of such cases. (1)

An expert's analysis and, if necessary, an affidavit establishing the defendant's duty and breach of that duty may help you overcome a motion to dismiss. Without an expert, you have only your client's affidavit and the hope that the trial judge will let a jury hear the case. Don't hope. Hire the expert.

Without experts, you must rely on discovery of facts and information that are usually within the sole control of the defendant. Employees are often encouraged to say that they had no notice of a dangerous condition, which helps their employers avoid liability. Further, many corporate defendants in premises liability cases stonewall in discovery to keep critical information out of plaintiffs' hands. (2)

An expert can also help you deflect the comparative-fault defense. If a danger is such that the defendant knew or should have known about it, defense counsel may argue that it was an open and obvious defect and that any reasonable consumer would have noticed and avoided it.

An expert can help you establish patterns of consumer behavior that business owners foresee--or should. For instance, a retail expert can explain that stores display the most profitable merchandise at eye level because shoppers are drawn to items displayed there and pay less attention to floor-level items.

Why do warehouse retailers stack merchandise so high when they know that customers generally do not ask for help reaching items? Why do retail employees check store aisles every 15 minutes? They know that items may fall on the floor and that customers may trip over or slip on them. What percentage of customers will spill food at a self-service food bar? Does a building meet safety and building codes?

The answers can help you explain why the defect was not so obvious and how it was created by the business owner.

An expert witness proved indispensable, for example, in a case our firm handled. A 54-year-old woman had tripped at a restaurant while walking to the restroom. She hit her head and suffered a detached retina, eventually losing 99 percent of the vision in her dominant eye.

Investigation revealed that the restaurant had been flooded two years earlier and that three floor tiles had been damaged. The tiles were removed but not replaced, leaving a rise in the floor of less than half an inch. The restaurant management had placed a mat over the missing tiles (preventing customers from noticing the change in elevation) and placed a sign warning "Watch Your Step" in the general area.

Discovery of information from restaurant employees showed that other customers and restaurant workers had stumbled in the area, but none had fallen. Was this evidence sufficient to establish liability? Rather than rely on this testimony, we hired a safety engineer who examined the site, photographed and videotaped it, and evaluated applicable building codes. He also prepared a computer-generated animation of our client's trip, stumble, and fall.

The engineer kept his analysis simple. He determined that there was a tripping hazard at the restaurant the day our client had been injured, and that reasonable restaurant management should have been aware of it. The expert said the missing tiles caused the plaintiff to fall, the flooring defect violated building codes, and the warning sign was misplaced and insufficient.

Replacing the tiles would have cost only $10, he testified, adding that he had often consulted with major restaurant corporations and that this type of hazard had to be repaired immediately to prevent major, foreseeable injuries to consumers. The analysis appeared straightforward and irrefutable.

The defendant hired its own expert, who concluded that missing tiles did not violate any codes and that the mat had corrected any flooring defect. He also testified that the restaurant management did not need to replace the missing tiles because a sign warning "Watch Your Step" was sufficient. The plaintiff, he said, fell because she had dragged her feet while walking.

The jury concluded that the plaintiff was 10 percent at fault and the defendant, 90 percent. (3)

Though we might have prevailed without an expert, the safety engineer's analysis gave the jury a solid basis for concluding that the defendant had breached its duty of reasonable care and had known of the condition long enough to have corrected it. Without that testimony, the jury would have heard only our legal arguments--and the testimony would have added weight to the verdict if the defense had filed an appeal.

Be aware that some trial judges can be hesitant to let experts testify about premises liability issues they feel the jury can understand and evaluate themselves. Judges must be persuaded that experts are necessary because duty and breach of duty can no longer be determined by the "reasonable person" standard that many trial judges have applied in the past. (4) Maintaining property and keeping customers safe involves government regulations and codes, engineering principles, and safety factors beyond the knowledge of most laypeople.

Placing the blame

Typically, the defendant is the best party to prevent a customer from slipping and falling on its premises. Still, the defense that a plaintiff's comparative fault was the legal cause can be effective. Commenting on this defense in a case involving a hazardous sidewalk, a Tennessee court held that "there is a certain amount of care that the Good Lord intended for all of us to take in regard to where we plant our feet, for the world is not flat." (5)

It is possible to overcome the comparative-fault defense. For example, in Kingsul Theatres, Inc. v. Quillen, plaintiff counsel presented the theories of "momentary forgetfulness" and "momentary distraction" to argue that the plaintiff's fault had not caused the fall. The plaintiff successfully argued that she had been momentarily distracted when she turned to look for her daughter. She fell over a six-inch step that she had seen earlier. (6)

In some jurisdictions, courts and juries are required to balance the foreseeability and gravity of harm--even if the danger is open and obvious--against the defendant's burden, to remedy the harm. (7) The Tennessee Supreme Court held that the risk of harm from a deviation in a sidewalk was unreasonable despite its being open and obvious. The court noted that the defendant had actual knowledge of the deviation and that corrective action was available but that it took no steps to warn of the danger. Before courts accepted this balancing test, the plaintiff's fault barred recovery if the danger was open and obvious. Some jurisdictions still follow this rule. (8)

The plaintiff's experts must be able to address, from a business standpoint, defenses asserting the openness and obviousness of a hazard and the plaintiffs duty to look where he or she is walking. For example, as noted above, an expert can tell the jury why a store displays merchandise at eye level and how that prevents customers from seeing floor-level dangers.

Without that testimony, these commonsense defense arguments are effective before a judge and jury. Business owners spend millions of dollars on advertising. Often, those ads encourage consumers to visit the premises, and there are few warnings that the consumer should anticipate or expect dangers.

Consumers injured on business property need representation. By applying strong screening criteria, using qualified experts, and preparing to meet the comparative-fault defense, you can hold businesses accountable for failing to provide safe premises.

Notes

(1.) See, e.g., Bailes v. Public Bldg. Auth., No. 03A01-9605-CV-00157, 1996 WL 722042 (Tenn. Ct. App. Dec. 17, 1996); Rice v. Knoxville Utils. Bd., No. 03A01-9606-CV-00209, 1996 WL 732477 (Tenn. Ct. App. Dec. 23, 1996); Tracy v. Exxon Corp., No. 02401-9512-CV-00277, 1996 WL 741876 (Tenn. Ct. App. Dec. 31, 1996).

(2.) See Gilbert T. Adams III & Alto V. Watson III, Big Box Retailers: Discovery Abuse, TRIAL, Apr. 2000, at 38; see also Bruce S. Kramer & Elaine Sheng, Busting Open the Big Box, on page 26 of this issue.

(3.) Sanders v. Jenkins Rest. & Deli, No. V-99-716 (Tenn., Bradley County Cir. Ct. Jan. 24, 2001).

(4.) See Clifford Britt, Getting Your Security Expert Over the Daubert Hurdle, on page 31 of this issue.

(5.) Coln v. City of Savannah, No. 02A01-9507-CV-00152, 1996 WL 544652 at * 4 (Tenn. Ct. App. Sept. 25, 1996), rev'd by 966 S.W.2d 34 (Tenn. 1998).

(6.) 196 S.W.2d 316 (Tenn. Ct. App. 1946). See also Keller v. Vermeer Mfg., 360 N.W.2d 502 (N.D. 1984); Soileau v. S. Cent. Bell Tel. Co., 406 So. 2d 182 (La. 1981).

(7.) See, e.g., Coln, 966 S.W.2d 34.

(8.) See Bennett v. Stanley, 748 N.E.2d 41 (Ohio 2001); Dowen v. Hall, 548 N.E.2d 346 (Ill. App. Ct. 1989).

John D. McMahan and G. Brent Burks are partners in the McMahan Law Firm in Chattanooga, Tennessee.
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Author:Burks, G. Brent
Publication:Trial
Geographic Code:1USA
Date:Dec 1, 2001
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