Find Your Footing: Don’t Stumble When it Comes to Slip-and-Fall Claims

Carie Hall | Rumberger Kirk

Some regard slip-and-fall claims as nuisance litigation and often make billboard plaintiffs’ lawyers the butt of jokes. But, occasionally, these claims represent catastrophic injuries with verdicts to match, and even garden variety slip-and-fall claims expose companies to expense and aggravation.

Slip-and-fall accidents are by far the most prevalent accidents for both guests and employees in the hospitality industry. It is surprising how many restaurants, hotels, resorts, and other businesses have high foot traffic but have not exercised vigilance in protecting themselves from this common claim.

When it comes to slip-and-fall claims, prevention is the first step. Make sure your flooring meets industry standards when dry or wet. This starts with looking at the coefficient of friction, a mathematical expression of the ratio between the force necessary to move an object horizontally over another surface and the pressure between the two surfaces. Results can range from near zero (think of ice skates on ice) to greater than one (rubber on rubber).

It can be more complex to assess the real-world slip potential of a floor. Most experts will testify that flooring testing at .5 or better is reasonably safe. Do not depend on your own judgment or that of a floor-material salesperson, or even a product specification sheet. Get an expert opinion when selecting new flooring. Additional consideration is needed if a finish is added to the flooring material after installation. Is it worth having a glossy finish for aesthetic reasons if it reduces the coefficient of friction and increases the potential for accidents?

Another recent trend involves claims that involve a transition between surface materials (e.g., from carpet to tile). Plaintiffs’ attorneys may argue that going from the sure-footed grip of an office carpet to the smooth lobby marble creates a hazard. Aesthetic considerations come into play here, but consider whether the change is too abrupt for the particular use of the area. There may be engineering fixes for such transitions, or perhaps a contrasting color or intermediate surface that prepares people for the change. In some cases, signage may be appropriate.

Prevention protocols should also include how to maintain and monitor a floor that is expected to get wet, such as a lobby when it rains outside. Wet floor signs have become ubiquitous, but many businesses go a step further and have mats available to roll out and absorb water tracked in by guests. Of course, these mats will need to be in good condition to prevent trip hazards or slippage of the mats themselves.

Many slips in restaurants and hotels result from spills, so the first step in prevention is to pay attention and promptly clean them up. Having a timely inspection regimen and documentation that proves it was followed will bolster a defense.

This gets to the legal principle of “knew or should have known,” which closely correlates with the legal determination of what is reasonable. If someone slips on beer that was spilled an hour ago, then that scenario would likely fall into the “should have known” category. However, most courts and jurors would not expect you to detect a spilled beer within seconds or even a few minutes. The reasonableness standard is also affected by the venue. The dining room in a senior center will have a different standard of reasonableness compared to that of a restroom adjacent to a pool or splash park.

After the Fall

The welfare of customers or employees should be your first concern. Once an appropriate party has attended to their needs and, if necessary, called for aid, your staff must do its best to document everything. Take photos from every angle, both close up and broad views for context. Document anything the person said after the incident. (“I wasn’t paying attention,” will not be something a claimant remembers saying by the time you start taking depositions.) Because people scatter quickly, an important, often overlooked step is taking statements from witnesses. The guest who was skipping across the lobby with a beer in each hand or who created the spill that caused her own fall will not remember it that way, making witness statements vital. Document their statements and remember to get contact information for the witnesses.

Documentation should always include the type of shoes the person wore and details about what they were doing at the time. If a claimant was wearing high heels or $1 flip flops from a discount store, talking on a cell phone, and carrying six packages, then it is important information. Most falls are affected by both human behavior and floor conditions, and many states allow for comparative-negligence verdicts in which damages are apportioned accordingly. For example, a careless plaintiff may have been 50 percent at fault for an accident, which means a jury award is reduced by 50 percent. Another guest who carelessly dropped a drink on the floor, even if the person cannot be identified, may be assigned part of the fault, again reducing the amount of potential damages.

Preserve any video evidence. Most public venues have cameras, but many record on a loop that erases everything on a 24-hour or 48-hour cycle. In some states, the evidence you gather during an investigation, such as witness statements and photographs, may be privileged as work product, but that is not the case everywhere. An attorney or insurance carrier can advise on how a state’s law will affect a specific response to accidents. Surveillance video capturing the accident is not likely privileged, but it is better to preserve the video than risk an allegation of spoliation of evidence, which could result in sanctions including an instruction to the jury that they can assume the evidence was not favorable to the party that lost or destroyed it.

If the accident results in a claim, bring in an expert right away to assess the floor surface. Given that litigation may take years to develop, it is imperative that you analyze and document the condition of the surface. Also, be aware that replacing flooring, even for reasons unrelated to the accident, can be detrimental to the claim without proper analysis. Never make any changes to the floor after a claim is made without the advice of your attorney. If a claimant is not offered an opportunity to inspect the floor, that may also give rise to a claim of spoliation of evidence.

Finally, designate someone on staff as the internal slip-and-fall expert. This person should constantly be on the lookout for hazards, keep up with new technology in floor surfaces, execute inspections, and train others in both prevention and response to hazards. With vigilance, you can reduce your exposure to slip-and-fall claims and ensure the safety of guests and employees.

Policyholders and Contractors Unite Against Wrongful Insurance Company Claims Practices

Chip Merlin | Property Insurance Coverage Law Blog | December 5, 2019

While working on and researching for answers to questions posed by Professor Feinman regarding the growing insurance coverage gaps crisis, I came across a very pointed article published about how modern insurance company claims practices are destroying the construction restoration industry.

In Cleaning & Restoration (Quarter 1, 2019) an article, “Our Greatest Need—The Case For, And Path To, Industry Advocacy For The Restoration Industry,” by the Restoration Industry Association (RIA) Board member Mark Springer, stated the following:

In a previous C&R article…. I described a situation where an insurance carrier refused any payment on a water mitigation claim due to a technicality in document upload. It is not my intent to relitigate that argument but rather to expand on some of the issues that restoration contractors face. In that article, I stated a thesis that poses a somewhat grim outlook for the restoration industry. However, with each passing month, I continue to see challenges emerge that reinforce this position. The thesis is this:

‘If restoration companies are unwilling to unite, advocate for sustainable claims practices and take a proactive approach with insurance carrier claims policies, then the restoration industry as we know it will cease to exist within a decade.’

I agree. The significance is that leadership from the largest and most longstanding restoration construction association is promoting this “call to arms” in its own battle with the property insurance claims handlers. It is not only policyholders suffering from catastrophic physical damage to their businesses and homes, the insurance claims industry has focused its claims techniques on those contractors repairing and rebuilding those structures.

Springer made his point further:

‘Claims policies’ go much deeper than the specific policies that a carrier dictates to issue payment. The issues we face are many, and they all impact the entire claims process that a property restoration company must navigate in the course of their day-to-day operations. What follows are some examples of the challenges and threats we face. Realistically, each of these areas, or sectors of concern, are not only necessary but essential in the claims environment. However, there are some key questions that each restorer, and the industry at large, should be examining if we are going be able to operate our businesses sustainably. These questions are not rhetorical; they are not intended to be presented sarcastically or with bias. This isn’t a time for conspiracy theories, but we would be exceptionally naive if we were to think that the largest fiduciaries in the world, who incidentally are the repositories of the largest quantities of data in the world, were looking out for any interest other than their own and that of their shareholders.

Springer provided several examples of methods the insurance claims Industry is leveraging lower claims payments through wrongful claims practices, which are often involving partners of the insurance companies.

  1. Pricing and Scoping platforms found in Xactware, which is operated by Verisk—a company owned primarily by insurance companies until it went public.
  2. Non-adjuster insurance company construction consultants who often delay and raise roadblocks to payment without legitimate reason. The RIA named JS Held as an insurance industry partner consultant that RIA leaders need to have “talks” with.
  3. Third-Party Administrators Growing Influence and Expanded Role in claims adjustment.
  4. Government regulations and rules not under insurance carrier claims rules. Indeed, Springer notes that the result is that less affluent contractors breaking the law will get paid by insurers for the illegal construction, which is performed, but not caught by, government regulators.

Certainly, the insurance company will claim that many contractors overprice materials and labor. They will also point to those that over-scope the damage and method of repair so that Xactware performs a very valuable function in the claims process. They will also point out that expert consultants can help prevent contractors from “gaming” the claims payment system and prevent unreasonable overpayments payments. These are two legitimate concerns. Still, two wrongs never make a right.

I am not certain how insurers get away from the refusal to pay government safety laws for construction workers. Of course, insurance claims managers just saying “no” and then conspiring with financial support for those that break the law is one way to do it, as Springer noted. I am certain that the audit committees checking on governmental compliance for the publicly traded insurers would not like to read these accusations by Springer.

I would suggest that contractors and those concerned about what they can do to help stop the growing trends of wrongful claims practices of the insurance claims industry read the various articles archived by the RIA and support many of their efforts. The RIA has over 1,200 member firms and has been in existence for over 70 years advocating for restoration contractors.

Policyholder interests for high standards of ethical construction practices and fair and ethical claims practices are aligned with the RIA—so should the insurance industry.

Gobble Gobble First and Then You Can Put Up the Christmas Tree. Well, Kinda.

Matthew DeVries | Best Practices Construction Law | November 26, 2019

As we enter the holiday season, some people have strict guidelines about when the Christmas tree or other holiday decorations are allowed to takeover our daily lives, offices, and homes.  The red and white ribbons and the colored lights of Christmas cannot be hung until after the orange pumpkins, brown leaves and turkey carcasses are thrown away.  In other words, it is premature to celebrate one holiday before the other holiday has occurred.  In the world of construction claims, according to one court, these same rules apply—it is premature to award damages before the claim has been considered and either approved or rejected.

In VVM Builders, LLC v. Atkins Construction Group, LLC, No. CV195021541S (Oct. 31, 2019), the Superior Court of Connecticut squarely addressed this precise issue in a case involving a change order dispute between a contractor and subcontractor.  The subcontractor filed a demand for arbitration against the contractor, seeking both its contract balance and approximately $40,000 in extra and/or change order work.  The parties’ contract provided that “the subcontractor shall have no claims for additional work or changes in the work without written authorization.”  The subcontractor submitted invoices for the extra work, but, according to the testimony at the hearing, the contractor had neither approved nor rejected the subcontractor’s claim.

Nonetheless, the arbitrator essentially awarded prospective damages based upon “not yet approved” changes or extra work, stating the following:

The [subcontractor] has submitted invoices for this extra work. The [contractor] testified that [it] has not yet approved any of those extra work/change order items and, therefore, the [subcontractor’s] claim cannot be awarded at this time. I find that should the contractor approve said work then the [subcontractor] shall recover same.

The contractor paid the contract balance to the subcontractor, but the subcontractor filed a motion to confirm the award on the change order work.  The court summarily denied the subcontractor’s motion, finding that the contractor’s interpretation of the arbitration award was correct.  While not explicitly stated in the one-page opinion, the court concluded that the arbitrator could not base its award on a change order claim that had not yet been approved (or even considered) by the contractor.

The short opinion makes sense—an arbitrator cannot rule on a claim that has not gone through the process required by the contract.  So what? A more difficult scenario arises when the claim has been submitted and either the contractor or the owner have refused to respond to the claim.  It is not clear from the VVM Builders case how long the subcontractor’s invoices for extra work had been pending, but I suspect it was not an excessive or unreasonable amount of time.  If it had been, the subcontractor could make an argument that the refusal to provide a response to the claim was a “deemed” denial and, therefore, gave the subcontractor the right to proceed with arbitration. Better yet, parties should draft a time limitation period within their contract for review and response to a submitted claim (i.e., “In the event Owner fails to respond to Contractor’s written claim for additional work within ten (10) days, the claim shall be deemed approved.”).

On a more personal note, to you and your family, Happy Thanksgiving!

When Does A Claim for Damages Not Require Notice? When It Is One For Liquidated Damages.

Matthew DeVries | Best Practices Construction Law | November 26, 2019

I just blogged about asking for what you want and the importance of complying with notice provisions in pursuing a construction claim.  A court in Oklahoma just reminded me that not all claims require notice.  Here’s what I mean.

In WinCo Foods, LLC v.  Crossland Construction Co., No. CIV-18-175-HE (Nov. 21, 2019) (PDF), the U.S District Court for the Western District of Oklahoma recognized the distinction between “notice” for purposes of asserting a delay claim by the contractor and “notice” for purposes of assessing liquidated damages by the Owner.  The contractor failed to attain substantial completion of the construction of a new grocery store by the contractually required deadline.  The contractor argued that the owner failed to comply with the notice provision when making its claim for liquidated damages.

The court held that the “notice of claims” provision in the parties’ contract was a separate provision from the liquidated damages provision and, thus, inapplicable to the claim for liquidated damages.  The court reasoned:

As set forth above, the terms of the liquidated damages provision govern the issue of liquidated damages “notwithstanding anything to the contrary in the Contract Documents”. Thus, any additional requirements set forth in the notice of claims provision, that are not included in the liquidated damages provision, would not apply. Because the liquidated damages provision does not require [the owner] to provide notice of any claim for liquidated damages and makes the entitlement to liquidated damages automatic where the circumstances warrant, [the owner] was not required to comply with that notice procedure.

It is important to note that the court’s decision was made at the summary judgment stage—first, finding that the liquidated damages provision was enforceable; and, second, finding that the owner was not bound by any notice provision in assessing liquidated damages.  However, since there were disputed issues of material facts as to the delays on the project and the architect’s bias conduct against the contract, summary judgment was not proper on either the contractor’s claim for additional time or the amount of the owner’s claim for liquidated damages.  Those issues would proceed to trial.

So what?  The primary lesson that comes to mind from WinCo is one of mutuality, or making sure that the contract provisions that apply to one party apply equally to the other party. This is especially true when one party is attempting unfairly to shift risk of attorney fees, indemnification or otherwise to the other party.  In this instance, the contractor could have made sure that notice of any type of claim by any party shall be made within the time proscribed.