Proving liability in “slip and fall” cases

"Slip and fall" and "trip and fall" cases are the most common types of premises liability. Although claims for personal injuries and wrongful deaths due to these types of cases are frequently asserted, and indeed they are the second leading cause of unintentional death in the United States, they can be one of the hardest cases to win. Only a few cases are brought to trial, and the average settlement for injuries due to a slip and fall on land owned or possessed by another is generally from $30,000 to $60,000 in California. Of course, there are a significant number of slip and fall cases that result in settlements or verdicts of hundreds of thousands - even millions - of dollars.

Here are some surprising facts from the Centers for Disease Control and Prevention and the National Floor Safety Institute:

Slip and fall incidents are a leading cause of injury among all ages in the United States, especially in the elderly;

Over one million people need emergency medical care each year due to injuries suffered in a slip and fall;

The average hospital cost of a slip and fall is $20,000 to $30,000;

Fractures occur in five percent of all people who slip and fall; the most common being to the hip, spine, forearm, leg, wrist, ankle, pelvis, upper arms and hands;

Slip and fall cases are the most common cause of traumatic brain injury;

Medical bills for slip and fall injuries exceed $34 million a year.

What you need to establish to win

To recover on a theory of slip and fall, the injured person must prove:

(1) That a dangerous condition on the property existed; a condition is not considered to be dangerous unless it presented a substantial risk of injury to people who are reasonably using the property at the time of the injury;

(2) That one of the following existed: either (a) the landowner or his employee or agent created the dangerous condition; or (b) the landowner had actual knowledge of the danger and failed to warn of it or repair or remove it; or (c) the landowner had constructive notice of the danger. Constructive notice means that the danger must have existed for such a long period of time that, had the reasonable landowner exercised due care in making regular and thorough efforts to keep the property safe, the reasonable landowner should have known about the danger;

(3) That after creating or having actual or constructive notice of the danger, the landowner failed to make the premises safe by repairing or removing the dangerous condition or providing adequate warnings or appropriate barriers within a reasonable time; what constitutes a reasonable time depends upon the facts of each individual case;

(4) That the landowner owed the injured victim a duty of care to repair, remove, or otherwise remedy the dangerous condition or at least provide adequate warnings of its existence;

(5) That the landowner breached that duty by failing to provide safe premises or adequately warn of the dangerous condition;

(6) That the landowner's negligence was a substantial factor in causing the person's injuries or death; and

(7) That the injured person did in fact suffer bodily or mental injuries or death or damages to his property, that are legally recognized as compensable injuries.

Why slip and fall cases are hard to prove

Why are slip and fall cases so hard to prove? In the typical automobile accident, there may be a number of eyewitnesses to the accident and the events leading up to it, a police investigation and report as to who appeared to be at fault, and perhaps even some footage of the accident on a surveillance camera. A reconstruction of the automobile accident may be made in cases involving large damages, based on all this evidence and more, such as the weather records for the date and time of the accident to determine whether the roadway was dry or wet and slippery, the precise time and location of the vehicles immediately before the accident to help to determine whether the sun or any other conditions were blocking either driver's vision, etc.

On the other hand, in a slip and fall case often the only witness to the incident is the injured party. There is often no hard evidence to prove that the landlord had actual or constructive notice of the dangerous condition, let alone to show the amount of time the landowner actually had from the time he had notice of the danger and the time he repaired, removed, or warned of it. In some cases, such as where a shopper has slipped and fallen on a piece of fruit on the floor, breaking her hip, the injured party's lawyer may conduct an investigation into whether any store employees or other shoppers saw the fruit on the floor before the accident and what condition the fruit appeared to be in. Testimony from other shoppers as to how the fruit looked - whether it seemed to be fresh and untouched as opposed to whether the fruit was brown and smushed - would have much bearing on how long the fruit had been on the floor and whether the store owner should have been aware of it and cleaned it up in a reasonable time.

The grocery store's lawyers will take sworn statements from store employees asking such questions as if and when they saw the piece of fruit on the floor, when was the last time before the accident had any employee inspected that area of the floor or swept or cleaned it to ensure that it was clean and free of any hazards. The store's lawyers will also carefully inspect and review any "sweep sheet logs," which would indicate the last time before the accident the area was inspected and by whom. That employee would then be questioned by both sides as a material witness to the event. The defense lawyers will also probably argue that even if the piece of fruit had been on the floor long enough that it should have been noticed and cleaned up by an employee, the danger it presented was "clear and obvious" to any shopper using reasonable care for his own safety.

Speculation versus logical reasoning

In the recent case of Perez v. Hibachi Buffet (Cal. App. 8/30/22) 2022 WL 3724764, the plaintiff was injured in defendant's restaurant when he exited the restroom and slipped on some liquid on the tile floor and fell hard. The jury awarded the severely injured plaintiff $850,000. The trial court, however, granted the defendant's motions for judgment notwithstanding the verdict and for a new trial.

The spill in question was in a tile hallway connecting the dining room to the kitchen. The liquid spill was 10 feet long and 10 inches wide. All parties agreed that the floor was wet but differed as to how it got that way. The plaintiff contended that the pattern of the spill supported a reasonable inference that the liquid spill must have come from an employee taking dirty dishes to the kitchen to be washed. The defendant alleged that the liquid may have been due to some other cause, such as a patron not making it to the restroom on time or a customer spilling some beverage in the area. Although two witnesses testified for the defense that they had never seen a cart with dirty dishes being used in that hallway, in a Request for Admissions the defendant admitted that this route was used by its employees to transport dirty dishes from the dining room to the kitchen to be washed.

The court found that the plaintiff offered a reasonable explanation as to how the tile got wet, one that was consistent with the defendant's admission of its employees' use of the hallway: one of its employees taking dirty dishes to the kitchen spilled some liquid on the way. The court remarked that spilling liquid on the floor is an everyday event. When the facts are this simple and the contest is between a reasonable explanation and no reasonable explanation, the reasonable explanation wins.

The defendant argued that the plaintiff's explanation for how the liquid got on the floor was speculative. The court stated that while speculation is not admissible, logical inferences are permissible. "When one explanation adds up and competing explanations do not, it is reasonable to accept the sensible explanation in a situation this simple. This is logic, not speculation." 2022 WL 3724764 *5. The court also remarked that the jury was reasoning, not guessing. The appellate court thereupon held that the trial court's granting of the motions for JNOV and a new trial was in error and reinstated the jury' original verdict granting the plaintiff $850,000.

Defenses to slip and fall cases

Even when an injured person is able to prove each of those elements necessary to prove liability, the landowner may avoid liability altogether or at least reduce the degree to which he is liable by proving a defense to all or part of the liability. Some of the more common defenses asserted are:

(1) The danger was open and obvious to a reasonably careful person;

(2) The injured party was aware of the danger and could have taken measures to avoid it but knowingly and voluntarily chose to take his chances (assumed the risk of being injured);

(3) The injured person was not exercising due care for his own safety, such as by talking or texting on his cellphone, tending to young children, or otherwise doing something that diverted his attention from recognizing the dangerous condition (comparative negligence);

(4) The injured person was not in a place he was lawfully entitled to be, nor did he have any legitimate reason to be in the dangerous area;

(5) The landowner could not have reasonably anticipated ("foreseen") that a person such as the injured party would have been there; or

(6) The alleged dangerous condition was a trivial defect; a "trivial defect" is one that does not create a substantial risk of injury when people are using the property in the manner in which it was intended to be used. The fact that the injury was occasioned by a trivial defect is a defense regularly asserted in change of elevation cases. A change of elevation of a walkway of 3/4 of an inch or less was for many years considered by California courts to be a trivial defect as a matter of law. Some courts even went so far as to hold that a change in elevation of 1.5 inches or less is a trivial defect. Today, California courts apply the rule that while measurements alone may not be sufficient basis for finding as a matter of law that a particular defect is trivial, they are but one factor - and often the most important factor - to be considered along with the totality of circumstances to determine whether a defect is trivial. See generally Torkzadeh and Wilkinson, No liability for trivial defects in sidewalks, Daily Journal p. 5 (Aug. 3).

Damages recoverable

Things to consider in determining the value of a potential slip and fall case include: the severity of the injuries; whether they are temporary (i.e., will heal well and not result in any significant residual problems) or permanent (such as a traumatic brain injury, the amputation of all or part of a limb, a broken hip, disfigurement or death); the amount of all medical and other health care expenses (such as rehabilitation costs, intensive physical therapy, psychiatric or psychological treatment for emotional and mental injuries, nursing home or convalescent care centers, medical equipment needs, cost of modifying the house or vehicle to be handicapped friendly), including whether compensation is enough to cover all past, present, and reasonably foreseeable future needs; lost wages and diminished earning potential; loss of a business; physical and mental pain and suffering; loss of enjoyment of life; loss of consortium; shortened life expectancy and other damages and expenses reasonably foreseeable as a result of the slip and fall.