In addition to motor vehicle collisions, another type of case commonly seen by personal injuries attorneys is the “slip and fall.” First, I don’t call them slips and falls; that is too general and carries a negative connotation with some of the general public and especially with tort reformers. Plus, many “slip and fall” injuries are really trip and fall injuries or fall-in-a-hole-and-break-your-ankle-and-fall injuries. I call them what they truly are, a Fall and Injury. It is much more accurate.
Fall and injury cases can be very difficult to prove, but not impossible. In the case of a slip on a wet surface, you may have to prove the following:
- What you slipped on;
- How the substance got there;
- How long the substance was there;
- Who owns or controls the area;
- Was there a warning;
- What is the standard of care for that area or defect; and/or
- Is there insurance.
Although late night television may joke about “slip and fall lawyers”, the truth is, the deck is stacked against you when you fall, and your attorney has a lot of work to do.
Owners of a business, for example, are liable for your fall and injury if you slip on a wet surface and they have actual or constructive notice of the wet surface and they fail to warn or protect the customer. They have actually knowledge generally, if they know the defect is there, or if they create the defect. Examples include employees of the company mopping a floor; if there is a spill that the company or its employees know of; if there is a hazardous condition such as a leaky refrigerator the company knows of. The store has constructive knowledge, meaning even though they did not know of a hazard, they should have known of the hazard due to its characteristics, if the hazard has been in place so long that they should have discovered it. An example is a spill in a grocery store that a surveillance camera shows was present on the floor for an hour, but no one cleaned it up.
Proving your case can be difficult. It helps to have an employee admit fault at the scene before someone tells them to be quiet. For example, after a patron falls at a restaurant, an employee says, “I am sorry, I spilled that water, but I have not had a chance to mop it up.” It also helps to have a video showing an employee mopping a floor, but without a wet floor sign. Often, the insurer for the store or business will deny these claims, and it will be up to a judge or jury to decide who is telling the truth.
Proving constructive notice can be even more difficult. Stores, businesses, and their respective insurers will NOT give you their video surveillance. To obtain this evidence, you must put the company on notice that they must retain it, and then subpoena the materials once you have filed a lawsuit. Many lawyers do not wish to take a case that can only be proven after a lawsuit is filed. It helps to have a witness who can testify to the condition and how long it is present. I was able to convince an insurance adjustor that a defect had been present because my client took a photograph at the scene. In that case, the client slipped and fell on a soft drink. The photograph, taken immediately after her fall, showed that the borders of the puddle had dried. I successfully argued that the drying of the puddle indicated that the puddle had been present for a prolonged time.
Even if you can prove who caused the spill or that there was knowledge, you must watch out for the insurer’s defenses. Remember, that in Maryland, if you contributed to your injury by just 1%, you are forever barred from recovering, no matter how serious the injury or how obvious the negligence of the other party. Because of that, insurers love to tell you that the defect or hazard was open and obvious. This means that the injured customer was negligent for not seeing the hazard and for not avoiding it. The problem with that defense is that people do not look down at their feet when they walk, nor are we required to. The Maryland Court of Special Appeals really hit the nail on the head in a 1997 decision in which it addressed customers looking at a store’s shelves rather than at their own feet:
“The storekeeper expects and intends that his customers shall look not at the floor but at the goods which he displays to attract their attention and which he hopes they will buy. He at least ought not to complain, if they look at the goods displayed instead of at the floor to discover possible pitfalls, obstructions, or other dangers, or if their purchases so encumber them as to prevent them from seeing dangers which might otherwise be apparent. Patrons are entitled therefore to rely to some extent at least upon the presumption that the proprietor will see that the passage ways provided for their use are unobstructed and reasonably safe.”
Tennant v. Shoppers Food Warehouse Md. Corp., 115 Md. App. 381, 392 (1997).
In short, public opinion and prejudice against people that makes claims after a fall, and Maryland Law, make fall and injury claims difficult, but not impossible. Also, remember that the store owner has a special and elevated duty to find hazards and to make them safe. This, unsurprisingly, is not the same for municipalities and state or county owned property. I will address falls on sidewalks and the like in a separate entry.