Slips, Trips And Falls – Premises Liability – How Do They Know I Have A Case?

Michael V. Nakamura | Shulma Rogers

Every one of us will slip, trip or fall at some point in our lives. Sometimes these are minor incidents, and sometimes these are serious, life-altering incidents. Under the law, there are specific circumstances when such a mishap is the result of another party’s negligence, and these cases are known as premises liability cases.

Every day, I review and discuss cases with clients in the areas of personal injury, which includes auto, motorcycle, trucking, bicycle and other types of transportation-related accidents, dog bites, premises liability (slip and fall), sexual abuse and medical malpractice, which include birth injury, surgical errors, delays and misdiagnoses of many conditions and tragic wrongful death cases.

With regard to premises liability cases, a premises owner is responsible for the inspection, maintenance and repair of its premises. If there is an unsafe or dangerous condition on the property that is not immediately repairable, the owner is also responsible for appropriately warning others of this condition in the interim, usually with cones, tape or a “wet floor” sign.

However, this responsibility is accompanied by the concept of “notice,” i.e., was the premises owner on reasonable notice of the dangerous or unsafe condition?  Put another way, if the owner is not aware of the unsafe condition, then it may not be reasonable to hold that owner liable for the subsequent injury on that premises.  Did the unsafe condition just happen, or was it long-standing and ignored?  Were there prior complaints or incidents over the unsafe condition?

If the premises owner knew or should have known through reasonable inspection of the unsafe condition, and failed to fix or warn, then liability should attach.  Reasonable notice is really a case-specific analysis.  For instance, there is a line of grocery store cases, often referred to as the “green bean cases,” which essentially examine how long was the green bean, or the spill in Aisle 9 there, and if longer than a reasonable period of time, then the store is liable to a customer who later fell.  If a puddle of water had only been on the floor for a few minutes, and then a customer fell, that is likely not reasonably long enough to expect the owner to know about it and clean it up.  Often commercial establishments have maintenance manuals and logbooks that indicate how often and how detailed a premises should be inspected, and repairs performed.  If the establishment fails to comply with its own policies and procedures, then there can be a strong argument for liability.

This is a general overview, and there are other in’s and out’s to these cases, including compliance with codes, ordinances and regulations, as well as the injured party’s own behavior at the time of the incident. Was that person in a hurry, distracted, under the influence of alcohol or medication, not wearing his or her glasses?  In D.C., Maryland and Virginia, a legal doctrine called contributory negligence will likely be raised by the defense, which states that even if the premises owner was negligent in some fashion, so was the injured party, and therefore, there is no case.  Sometimes the argument is that the unsafe condition of the premises was so open and obvious that the injured person should have seen it. Again, this is a simplistic explanation and there are other considerations to examine in every case.

In conclusion, every premises liability case is different.  The merits of your particular case really depend on very specific facts, as well as the location and jurisdiction.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Plaintiffs Not Barred from Proving Causation in Slip and Fall Case, Even With No Witnesses and No Memory of Fall Itself

David Hoynacki, Arezoo Jamshidi and Lawrence S. Zucker II | Haight Brown & Bonesteel

On January 19, 2022, the California Court of Appeal, Second Appellate District (Los Angeles), held that a plaintiff is not barred as a matter of law from proving causation in a slip and fall case if there were no witnesses to the fall, and the plaintiff does not remember the fall itself. The Court of Appeal stated specifically that circumstantial evidence would permit a jury to make a “reasonable and probable inference” regarding contributing factors to a fall, even with no eye-witness evidence.

In Kaney v. Mazza (BC619247, Jan. 19, 2022), plaintiff and appellant Lydia Kaney (Kaney), was visiting her sister in her rented home in September of 2014. At some point during the visit, the light in the bathroom at the top of the stairs stopped working—Kaney used the stairs, and fell. Kaney filed suit against her sister and the owner of the home alleging premises liability, negligence, and violation of the Americans with Disabilities Act (ADA). In her deposition, Kaney testified that she remembered going up to the bathroom, and then waking up on the floor in pain. She could not remember how she fell; she did not know if she had missed a step, or if she had slipped and fallen backwards. She speculated that a worn-out bath mat may have been the cause of the slip and fall because the rubber traction on the bath mat was worn away.

The homeowner filed a motion for summary judgment arguing that there is no triable issue as Kaney did not remember how she fell. The owner also argued against the ADA violations and provided expert testimony that the house itself was “grandfathered in” under previous building codes due to its age. In opposition, Kaney submitted a declaration by safety and engineering expert Brad Avrit. He opined that the stairwell itself was unsafe, as there was no handrail present, there was significant differentiation between the risers and treads, and the stairway itself was not 30 inches in width. The trial court granted summary judgment stating that “when opposition to summary judgment is based entirely on inferences, such inferences must be ‘reasonably deducible from the evidence and not such as are derived from speculation, conjecture, or guesswork.’” Because Kaney could not state how she fell, there was no evidence that the stairs caused the fall in any way.

On appeal, the court discussed the type of evidence required to prove causation in a slip-and-fall case. The appellate court stated that expert opinion is only necessary in cases of particular complexity; in this case, the absence of a handrail or the size of the risers and how they may have contributed to a plaintiff’s fall was within common knowledge, and expert testimony was not necessary to establish causation. The court cited several cases in which a combination of circumstantial evidence led to “reasonable and probable inferences” in which the absence of a barrier was a substantial factor in the plaintiffs’ falls. (See Burdette v. Rollefson Construction Co. (1959) 52 Cal.2d 720; Schumann v. C. R. Reichel Engineering Co. (1960) 187 Cal.App.2d 309.) The difference in this case is that there is no safety rail or other barrier that would have immediately prevented Kaney’s injury; the Court of Appeal, however, did not find this to be a significant distinction.

The consequences of this ruling are significant for defendants in a variety of different types of cases. If there are enough reasonable or persuasive factors that would lead a layperson to believe they could have contributed to an injury, then the plaintiff does not need to provide specific testimony on how an injury occurred. This could lower the bar for a potential plaintiff to bring a lawsuit, and changes the calculations on how to defend such complaints.

This document is intended to provide you with information about general liability law related developments. The contents of this document are not intended to provide specific legal advice. If you have questions about the contents of this alert, please contact the authors. This communication may be considered advertising in some jurisdictions.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

A Guide to Evaluating Snow & Ice Cases

Nicholas P. Hurzeler | Lewis Brisbois

New York, N.Y. (November 9, 2021) – As the winter season nears, defendant property owners are reminded that New York law imposes liability for sidewalk accidents resulting from slip and falls on snow and ice. Within the City of New York, Administrative Code § 7-210 imposes liability on the owners of real property (other than single-family dwellings) to maintain an abutting sidewalk in a reasonably safe condition, which includes the removal of snow and ice.

Some of the most important issues in this area of the law were recently reaffirmed by New York’s Appellate Division in Zamora v. David Caccavo, LLC, 190 A.D.3d 895 (2d Dept. 2021). In particular, that the Court of Appeals made clear in 2019 that the statutory non-delegable duty to remove snow and ice from sidewalks extends even to out-of-possession landowners, who, although they may shift the work of maintaining the sidewalk to another, “cannot shift the duty, nor exposure and liability for injuries caused by negligent maintenance, imposed under [Administrative Code §] 7-210.” Xiang Fu He v. Troon Mgt., Inc., 34 N.Y.3d 167, 174 (2019). In other words, even if the defendant leases the property to a tenant who is obligated under the lease to maintain the property in every way, including snow and ice on sidewalks, the defendant cannot escape liability by claiming the tenant is solely responsible for the plaintiff’s loss. On the other hand, property owners are not strictly liable for all personal injuries that occur on the abutting sidewalks, because the statute “adopts a duty and standard of care that accords with traditional tort principles of negligence and causation.” Xiang Fu He v. Troon Mgt., Inc., 34 N.Y.3d at 171.

Burden of Proof & “Last Known Inspection”

The question often arises: what is the defendant’s burden of proof on motion for summary judgment to dismiss a case arising under § 7-210? The moving defendant has the burden of establishing, prima facie, “that it neither created the alleged ice condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.” Soloveychik v. Sea Isle Owners, Inc., 160 AD3d 782, 783 (2d Dept. 2018).

In response to such a showing, the plaintiffs’ bar often argues that the defendant has failed to establish the “last known inspection” as part of its burden to rule out constructive notice. “To meet its burden on the issue of lack of constructive notice, a defendant is required to offer evidence as to when the accident site was last cleaned or inspected prior to the accident.” Butts v. SJF, LLC, 171 A.D.3d 688, 689 (2d Dept. 2019). Moreover, a mere reference to general cleaning and inspection practices and procedures is insufficient for this purpose. Rodriguez v. New York City Hous. Auth., 169 A.D.3d 947, 948 (2d Dept. 2019).

Therefore, as the weather grows colder, defendant property owners are well advised to maintain written logs of snow removal efforts. That way, if an accident does occur, a witness can have their memory refreshed by these written materials so that the defense is not merely relying on “general cleaning and inspection practices and procedures” which, standing alone, are insufficient to meet their burden of proof to dismiss a case on summary judgment, and could prove useful at the time of trial as well. If the employees can also take photographs, such evidence could be especially useful for defense counsel trying to prove there was no notice of a hazardous condition.

Outside of New York City

For those defendant property owners outside of New York City, NYC Administrative Code § 7-210 does not apply. Instead, such defendants should check their local town and county codes and ordinances. The general rule in the State of New York is that an abutting landowner cannot be held liable for a sidewalk hazard in the absence of: (a) a local statute or ordinance that imposes tort liability on abutting owners for sidewalk conditions, and makes the landowner responsible to maintain and repair the sidewalk; or (b) evidence that the abutting landowner created the tripping hazard somehow (by way of special use, a negligent repair, or otherwise). Hausser v. Gunta, 88 N.Y.2d 449, 452-453 (1996): Farmer v. City of New York, 25 A.D.3d 649, 649 (2d Dept. 2006); Nichilo v. B.F.N. Realty Associates, Inc., 19 A.D.3d 666, 667 (2d Dept. 2005).

Thus, for defendants outside of New York City, a close review of the local code should be performed in order to determine whether the code expressly imposes tort liability upon them for failing to clear a sidewalk of snow and ice. Even if the local code imposes an obligation to clear the sidewalk of snow and ice, the defendant cannot be held liable unless the code expressly imposes tort liability on a defendant who fails to carry out its maintenance obligations. Morelli v. Starbucks Corp., 2013 N.Y. Slip Op 4786 (2d Dept. 2013)(granting summary judgment because “Starbucks and First Dixon … did not violate a statute or ordinance which expressly imposed liability upon them for failing to maintain”).

Employee Liability

Another key burden for defendants moving for summary judgment, both inside and outside New York City, is to submit evidence affirmatively ruling out the possibility that the defendant’s employees did not somehow create or exacerbate a hazardous condition on the sidewalk. Muhammad v. St. Rose of Limas R.C. Church, 163 A.D.3d 693, 694 (2d Dept. 2018). This appears to be one of the most frequently overlooked aspects of a defendant’s burden of proof on summary judgment. In particular, it is not enough to simply point to the absence of evidence. The defendant must instead prove a negative, by submitting sworn testimony or an affidavit attesting to the fact that the defendant’s employees did nothing to create or exacerbate the alleged hazard. Kabir v. Budhu, 143 A.D.3d 772, 773 (2d Dept. 2016); Martinez v. Khaimov, 74 A.D.3d 1031, 1033 (2d Dept. 2010).

For example, plaintiffs frequently allege that the defendant’s employees created a hazardous condition by piling snow near the sidewalk, which then melts and re-freezes overnight, resulting in ice on the walking surface. As noted above, it is not enough for a defendant to submit “custom and practice” evidence stating this did not occur. Instead, the defendant must affirmatively prove its employees did nothing to pile snow in such a way that ice resulted on the sidewalk. Again, written records (and ideally, photographs) could be invaluable for this purpose.

The “Storm in Progress” Defense

Defendants are also well advised to cite the “storm in progress” defense whenever a plaintiff’s accident occurs during ongoing precipitation. Under this doctrine, “a property owner will not be held liable in negligence for a plaintiff’s injuries sustained as a result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter.” Solazzo v. New York City Tr. Auth., 6 N.Y.3d 734, 735 (2005); see also, Sherman v. New York State Thruway Auth., 27 N.Y.3d 1019, 1021 (2016); Espinell v. Dickson, 57 A.D.3d 252, 253 (1st Dept. 2008)(“it is settled that the duty of a landowner to take reasonable measures to remedy a dangerous condition caused by a storm is suspended while the storm is in progress, and does not commence until a reasonable time after the storm has ended’ … [a] reasonable time is that period within which the [landowner] should have taken notice of the icy condition and, in the exercise of reasonable care, remedied it by clearing the sidewalk or otherwise eliminating the danger’”)(citations omitted); Dumela-Felix v. FGP W. St., LLC, 135 A.D.3d 809, 810 (2d Dept. 2016).

Again, however, even if the defendant can prove the plaintiff fell during a “storm in progress” (based on evidence such as weather records, witness testimony or a meteorologist report), plaintiffs often try to argue the defendant “created or exacerbated” a hazardous condition, for example, by removing the top layer of snow, thereby exposing a layer of old snow or ice underneath, which pre-dated the “storm in progress.” Torella v. Benderson Development Company, Inc., 307 A.D.2d 727 (4th Dept. 2003). Thus, a defendant moving for summary judgment based on the “storm in progress” defense should take care to address this possibility during the course of discovery and investigation, ideally with the goal of establishing that the plaintiff fell on material that accumulated during the ongoing storm, as opposed to an earlier snowfall.

Defendants in New York City should also be aware of NYC Administrative Code § 16-123, which provides a grace period for § 7-210 liability. The grace period extends for four hours after precipitation stops, and excluding the hours from 9:00 p.m. to 7:00 a.m., during which a defendant’s obligation to clear snow and ice from a sidewalk is suspended. The intent of the statute was to provide a grace period for property owners who cannot reasonably be expected to clear snow and ice that accumulates overnight. Under the statute, a defendant can meet its prima facie burden of entitlement to summary judgment with evidence that the plaintiff’s accident occurred as a result of precipitation that accumulated during the grace period. Notably, the grace period extends to 11:00 a.m. if the precipitation occurred overnight. Schron v. Jean’s Fine Wine & Spirits, Inc., 114 A.D.3d 659, 660 (2d Dept. 2014)(owner had until 11:00 a.m. to remove snow and ice where precipitation stopped at 5:00 a.m. because “[p]ursuant to Administrative Code § 16-123 (a), owners of abutting properties have four hours from the time the precipitation ceases, excluding the hours between 9:00 p.m. and 7:00 a.m., to clear ice and snow from the sidewalk”); Brandon v. Hallivis, 67 A.D.3d 618, 619 (2d Dept. 2009). Even if § 16-123 applies, however, the defendant must still take care to rule out, with evidence in admissible form, that its employees did nothing to create or exacerbate the allegedly hazardous condition, such as black ice forming overnight as a result of melting and re-freezing piles of snow placed near sidewalks.

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.

Florida Personal Injury Lawyers Answer Six Common Questions Asked About Slip and Fall Lawsuits

Searcy Denney Scarola Barnhart & Shipley

Slip and fall accidents in Florida depend primarily on the facts of a claim and can become very complex very quickly. Because of this, slip and fall claims are all unique in their own ways, and there are no “templates” for successfully establishing such claims.

Read on as the Florida personal injury lawyers answer and explain the six most common questions that are asked about slip and fall lawsuits.

What is a Slip and Fall Lawsuit?

Slip and fall lawsuits stem from accidents where a victim slips and is injured by unsafe conditions on someone else’s property. Occasionally referred to as “slip, trip, and fall” accidents, they are among the most common, if not the most common, types of accidents experienced by victims on other people’s property. These lawsuits are based on what is known as “premises liability.”

The accidents that lead to slip and fall injuries are caused by unsafe conditions on the property in question. So, for example, if you are at a gas station market and trip over an empty box, or slip on a wet area that has no warning sign posted, you may be able to sue for your resulting injuries.

Who is Responsible for My Slip and Fall Injuries?

Slip and fall accidents are often due to the negligence of the property owner. If this is the case, the property owner or the property manager can be held responsible for your injuries and any damages that you sustain due to the fall. Aside from your legal claim, you may also be able to seek compensation through their insurance policy.

How Long Do I Have To Sue the Property Owner or Manager?

Like most lawsuits, there is a time limit by which you must file your claim. This deadline is known as the statute of limitations. In Florida, for any type of personal injury claim, including premises liability claims, the statute of limitations is four years from the date of the accident, although there may be relevant exceptions.

For example, not all injuries are immediately symptomatic, and injuries may not be noticed until weeks or even months after the accident. In this case, a victim may be able to extend the start of the limitation until the victim notices or should have noticed the existence of the injury. Nonetheless, after the time limit is reached, any claims by the victim may be time-barred by the court.

Are Property Owners Liable for Slip and Fall Accidents on Personal Property or Commercial Property?

Both. In Florida, private property can be either personal and commercial. No matter how the private property is being used, property owners are legally required to maintain safe conditions for visitors who enter the premises, and the duties of property owners change according to what type of visitor has been injured; i.e., what the purpose of the visit was.

How Serious Are Slip and Fall Accidents?

Slip and fall accidents are not as insignificant as the name may suggest. In fact, they can be quite common, and quite serious. According to the Nation Floor Safety Institute (NFSI):

  • Fall fatalities are nearly equally divided between men and women. However, more women will experience a slip-and-fall accident. According to the Bureau of Labor Statistics, falls accounted for 5% of the job-related fatalities for women compared to 11% for men.
  • Falls account for over eight million hospital emergency room visits, representing the leading cause of visits (21.3%). Slips and falls account for over 1 million visits or 12% of total falls.
  • Fractures are the most serious consequences of falls and occur in 5% of all people who fall.
  • Slips and falls do not constitute a primary cause of fatal occupational injuries but represent the primary cause of lost days from work.
  • Slips and falls are the leading cause of workers’ compensation claims and are the leading cause of occupational injury for people aged 55 years and older.
  • According to the Consumer Product Safety Commission (CPSC), floors and flooring materials contribute directly to more than 2 million fall injuries each year.
  • Half of all accidental deaths in the home are caused by a fall. Most fall injuries in the home happen at ground level, not from an elevation.
  • Of all fractures from falls, hip fractures are the most serious and lead to the greatest health problems and number of deaths.

Because of the high percentage of the elderly in Florida, slip and fall accidents are particularly concerning. If you’re caring for an elderly relative or friend, it’s incumbent upon you to take extra precautionary steps for prevention.

Where Do Slip and Fall Accidents Occur?

Slip and fall accidents can happen anywhere, at any time, and always catch the victim off-guard. The two primary areas for slip and fall accidents are the workplace and the home. They may also occur in the homes and apartments of friends or family members, in business establishments, in parking lots, at sporting or concert events, on sidewalks, in parks or other recreational establishments or areas, at swimming pools, on boats, or literally wherever people are walking or running.