What Should Slip and Fall Accident Victims do to Prove Liability in their Case?

Searcy Denney Scarola Barnhart & Shipley

Slip and fall accidents in Florida are complicated and fact-dependent. Put another way, slip and fall accidents depend heavily on the actual facts of the claim. All such claims are different and unique in their own specific ways.

Further compounding the issue is the complexity of the laws in Florida, which means successful slip and fall claims require matching a series of actual facts that must be established to the specific laws. This reality requires an experienced attorney, like a Florida injury attorney at Searcy Denney, to navigate the nuances of a claim.

Slip and Fall Accidents in General

Slip and fall accidents are among the most common of all accidents. Slip and fall claims are based on the area of law referred to as “premises liability.” Premises liability claims revolve around accidents that are caused by unsafe conditions on another person’s property. So, for example, if you are at a museum and fall down a flight of stairs because of a defective handrail that breaks off into your hand, you may be able to hold the owner or manager of the museum responsible for your injuries.

In Florida, as with most states, successfully proving a slip and fall claim requires a victim to establish that:

  • The property owner/manager owed a duty of care
  • The property owner/manager breached that duty of care
  • The breach was the cause of the accident on the premises
  • The injuries suffered by the victim were the result of that accident

Proving Fault in a Slip and Fall Accident

Liability is essentially a synonym for fault — a term for fault that is often used in the legal arena. Proving fault is the keystone in establishing a successful slip and fall claim. The following lays out the steps for proving fault in a slip and fall claim in a general sense, including the steps that must be taken before fault can be established. However, establishing fault, in reality, requires a classification of what type of visitor has been injured (i.e., what the purpose of the visit was). In big-picture terms, a victim must:

Collect Evidence and Establish Facts

Like all personal injury claims, the victim must first collect all relevant evidence. Generally speaking, this may include obtaining videos and pictures of the accident scene as it existed at the time of the accident. Specifically, for example, documentation of any conditions that may have contributed to the fall, including conditions like:

  • Slippery substances on the ground or floor
  • Broken or uneven flooring
  • Dangerous terrain
  • Torn carpeting
  • Broken or uneven stairs
  • Defective handrails
  • Obstacles in walkways

It is also helpful for the victim or a family member/friend to immediately document the events exactly as they happened. This will provide necessary details, and since it was written down immediately, it is more likely to be credible than memories that may become stale. Eyewitness accounts should similarly be collected, and medical evidence, such as hospital and treatment records, is similarly critical.

The evidence collected will be critical in developing the series of critical facts, and the more believable the evidence is, the more likely the victim’s version will be found credible. A Florida injury attorney at Searcy Denney is experienced in this critical stage of your claim and will help ensure you have all the evidence needed to establish the facts of your claim.

Show Responsibility

While the owner/manager is responsible for maintaining a reasonably safe property, the victim is also accountable for reasonably avoiding hazards on the property. The property owner/manager and their insurance company may argue that the victim did not accept this responsibility by engaging in some type of careless behavior, such as staring at a phone, wearing inappropriate shoes or outer clothing, deeply engaging in conversations with their friends, or other behavior showing the victim was not reasonably responsible.

They may also require some explanation as to whether the victim had a legitimate reason to be in the area where the slip occurred and may further argue that a reasonable person would have noticed the condition and avoided it.

As is the case with many legal doctrines, “reasonableness” is the standard by which many decisions are made in the law. The easiest way to think of reasonableness is to put yourself in the owner/manager’s shoes and ask yourself, “Was I really paying attention? Could I have avoided this? Was anybody else hurt?” If the answers indicate that you were not really paying attention, a court may find that you are at least partly responsible.

Establish Fault

Liability, or fault, is a question of which party was the cause for any failure to be responsible. Try to convincingly argue that the property owners/managers should have inspected their premises regularly to identify any potentially dangerous conditions that existed. If such conditions were found, the owners/managers should have fixed these conditions within a reasonable amount of time. Again, reasonableness is the key to identifying and fixing dangerous conditions, as well as the adequacy of any warnings posted.

So, for example, if a property owner/manager has not regularly inspected his or her premises, that likely won’t be considered reasonable. Also, if an owner/manager notices a dangerous condition that is easy to fix but does not fix it within, say, a few weeks, or notices a hazardous condition that is hard or very expensive to fix but doesn’t fix it within, say, a year, that also likely won’t be considered reasonable.

Again, the easiest way to think of reasonableness is to put yourself in the owner/manager’s shoes and ask yourself, “What will it take to make repairs or replacements? What would I do if it were my business?” If a victim is found to be at least partly at fault, the court may adjust their damages accordingly. For example, victims may recover 80% of their damages rather than 100%. Again, this is a part of your claim that requires the experience of a Florida injury attorney at Searcy Denney.

Utah Expands Premise-Owner Liability To Take-Home Asbestos Plaintiffs

Jackson Otto | Husch Blackwell

Utah’s Supreme Court recently issued an opinion which dramatically expands premise owners’ liability for asbestos-related injuries. On August 5, 2021, the Court reversed Utah’s Court of Appeals and held that a lawsuit could proceed against two premises owners on the theory that asbestos dust from their facilities was brought home on the clothing of a non-employee contractor, causing his spouse to develop mesothelioma. For the first time, premises owners or operators may be liable for injuries alleged by anyone living under the same roof as one of their former contractors.

Background

In Boynton v. Kennecott Utah Copper, et al., Larry Boynton alleged that he was exposed to asbestos while working as a laborer and electrician at several job sites in the 1960s and 1970s. He claimed that he brought some of this asbestos home on his clothing and that his wife, Barbara Boynton, was exposed when she did his laundry. Mrs. Boynton subsequently contracted mesothelioma and passed away from her disease.

Among the job sites that he worked were facilities controlled by defendants ConocoPhillips, Kennecott Utah Copper LLC, and PacifiCorp. All three defendants moved for summary judgment. ConocoPhillips and Kennecott argued that they had no duty to Mrs. Boynton – who never worked for either company and was never present on either work site – and that they had taken no action toward Mrs. Boynton that would give rise to such a duty. In contrast, PacifiCorp argued that it did not control the work of Jelco-Jacobson (Mr. Boynton’s direct employer on the job) and that under Utah law it therefore had no liability for the actions of the contractor.

The trial court denied Kennecott’s motion due to certain factual disputes regarding actions taken by the company, but granted the other two motions and held that neither ConocoPhillips nor PacifiCorp could be held liable for Mrs. Boynton’s medical condition. The Utah Supreme Court reversed the trial court’s rulings as to ConocoPhillips and PacifiCorp and affirmed the ruling against Kennecott, allowing the case to proceed against all three companies.

Premises Owners Have Duty to Take-Home Plaintiffs

The Court first addressed the motions of Kennecott and ConocoPhillips and held for the first time that premises owners have a duty to exercise reasonable care to prevent take-home exposures to asbestos. In its analysis, the Court broadly opined that risks associated with asbestos were foreseeable as early as 1961, and that premises operators “launched the instrument of harm” by choosing to use asbestos-containing materials and causing workers to come into contact with them. The Court stated that premises operators “will have engaged in misfeasance” against its workers when they:

1) Instruct workers to handle asbestos;

2) Have nearby workers handle asbestos (i.e., in the injured party’s vicinity);

3) Place asbestos on the premises;

4) Send employees to a workspace containing asbestos; or

5) Purchase a workspace containing asbestos and invite workers onto it.

The Court stated that it was “common sense” that take-home asbestos injuries were foreseeable by the early 1960s. The scope of this holding is surprising in that this exposure occurred more than a decade prior to the first OSHA regulation regarding asbestos in the workplace, and apparently disregards the state of scientific literature at the time. The Court suggested that premises owners should have taken affirmative actions to prevent take-home exposures. It specified that companies should have provided laundry services to clean workers’ clothes before they returned home. Because ConocoPhillips and Kennecott failed to do so, the Court held that they may be held liable for Mrs. Boynton’s injuries and denied summary judgment.

Premises Owners Are Liable for Subcontractors’ Conduct Where the Contract Grants Them Control

The Court next turned to PacifiCorp’s motion. It held that PacifiCorp retained sufficient control over contractor Jelco-Jacobson to be liable in its place for injuries to Mr. Boynton’s wife. Utah law traditionally held that a company employing an independent contractor is not liable for injuries caused to another due to the acts or omissions of that contractor (for a recent application of this rule, see our article discussing North Carolina’s independent contractor exception). However, in this case the Court found that PacifiCorp “retained control” over Jelco-Jacobson due to certain contractual provisions that specified materials to be used on the job, specified the methods by which certain work was to be performed, and gave PacifiCorp the right to test, inspect, and stop the work if it deemed necessary. The contract also explicitly reserved PacifiCorp the responsibility for directing certain safety and dust control measures.

Regardless of the actions ultimately taken by PacifiCorp under the contract, the Court found that the existence of these contractual provisions was per se sufficient to create a question of fact as to whether the company retained control over the contractor such that it could be said to have “actively participated” in directing Mr. Boynton’s work and subsequent exposure to asbestos. The Court remanded the case to the trial court to determine whether PacifiCorp retained control over the specific activities which caused the alleged harm to Mrs. Boynton.

The case is Boynton v. Kennecott Utah Copper LLC, et al., 2021 UT 40, Case No. 20190259. A copy of the opinion can be found here.

Georgia Court Clarifies Landlord Liability for Construction Defects

Chadd Reynolds. | Autry, Hanrahan, Hall & Cook, LLP | May 7, 2016

In Cowart v. Schevitz, the Georgia Court of Appeals clarified the instances in which an out-of-possession landlord can be liable in a premises liability claim. No. A15A2036, 2016 WL 563114, at *4 (Ga. Ct. App. Feb. 15, 2016).

In this case, the plaintiff was leaving a restaurant and injured herself stepping down off of a sidewalk near the bottom of a ramp.  The plaintiff filed a premises liability claim against the owner of commercial property (the “landlord”) and the operator of the restaurant (who later settled), seeking medical expenses and costs of litigation.  An expert testifying on behalf of the plaintiff stated that the ramp was required to have railings pursuant to building codes and, had the railings been installed on the ramp, the plaintiff’s fall more than likely would not have occurred.  The landlord moved for summary judgment, arguing that as an out-of-possession landlord, his liability to third persons for the use of the property by his tenant was precluded under O.C.G.A. § 44-7-14.  The trial court denied the motion without comment, and the owner subsequently appealed.

The landlord leased the property to the operator of the restaurant.  Under the lease agreement, the lessee would maintain the physical condition of the property and perform all maintenance, while the lessor was to approve any additional physical changes and had the right to inspect the property at any time.

The plaintiff argued that since the owner was required to approve any changes, it maintained possession of the property and was liable for her injuries.  The Court disagreed, noting that landlords will be deemed out-of-possession even when they retain limited entry or inspection rights for landlord-related purposes.  However, if the landlord does, in fact, inspect the property, it must repair any unsafe conditions which discovered or should have been discovered by the inspection.  Although the landlord could inspect the property at any time, according to the terms of the lease, Court held that he was an out-of-possession landlord.

Under O.C.G.A. § 44-7-14, an out-of-possession landlord is liable for damages to third parties if the damages arise from construction defects or the failure to keep the premises in repair.  The Court stated that, generally, such liability exists only when the structure is built by the landlord or under its supervision or direction.  An exception exists, however, when the premises is defectively constructed by a predecessor in title and the landlord knew or “by the exercise of reasonable diligence could have known of its improper construction before the tenancy was created . . . if the person sustaining the injuries could not have avoided the same by exercising ordinary care.”

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