Proving Slip and Fall Cases
Slip and fall cases or trip and fall cases are also known as premises liability cases, and they can be one of the more challenging negligence cases for a personal injury attorney to prove. This blog article discusses some of the challenges with slip and fall cases, but it is not intended to provide a comprehensive analysis. As with any legal matter, make sure you consult an experienced personal injury attorney for guidance.
Statistically speaking, in 2015 alone, more than 33,000 individuals died in slip and fall accidents. Falls most often lead to brain injuries and are the highest leading cause of non-fatal injuries. There are just under 250,000 incidents per year (20 to 30% of which lead to injuries), but the actual number is likely much higher than what is reported. Many individuals who get hurt may not go to the doctor to get treated, and even fewer will go to a lawyer to seek representation and file a claim.
WHAT DOES A SLIP AND FALL CASE LOOK LIKE?
It is often helpful to use a real-world situation to explain complicated legal issues like a slip and fall accident. Consider the following example:
Example: While pushing a grocery cart in the frozen food aisle of a local grocery store, a customer slips and falls in a puddle of water. The customer suffers a broken wrist from the fall.
Since the customer slipped on water inside the grocery store, is the grocery store automatically negligent? No. For a jury to find the grocery store negligent, the jury must have a lot more information, starting with the customer’s status inside the store.
DUTY OF CARE OWED DEPENDS ON INJURED PERSON’S STATUS
Property owners owe most visitors a duty of care. The duty of care a property owner owes depends on the injured person’s status while on the property. Washington recognizes three statuses: invitee, licensee, or trespasser.
An invitee is generally someone who goes onto a property for business purposes. A customer shopping at a grocery store is an invitee. A property owner must exercise ordinary care and keep the property in a reasonably safe condition for invitees. A business owner also must take reasonable precautions to protect customer-invitees from criminal activities it knows or reasonably should know are occurring on the premises.
A licensee is generally someone who goes onto another property for non-business reasons. If a neighbor comes to your home for dinner, the neighbor is a licensee. A property owner must take reasonable precautions to make their premises reasonably safe and/or warn licensees of potentially dangerous conditions on the premises.
A trespasser has no right to be at a property. Someone who sneaks onto a property with “No Trespassing” signs posted is a trespasser. Property owners owe no duty of care to people who knowingly trespass. However, property owner cannot intentionally injure trespassers, such as by setting up bear traps around the property because people can mistakenly trespass. That is called negligent trespassing.
In our example, the customer’s status is clearly that of an invitee. As an invitee, a plaintiff attorney would have to produce evidence to the jury that the grocery store breached its duty of care owed to invitees. But what specific duties did the store owe? Washington law makes property owners and possessors of land negligent and therefore liable for an invitee’s injuries only if:
- the landowner/possessor knows or by the exercise of reasonable care would discover the dangerous condition, and should realize that it involves an unreasonable risk of harm to such invitees; and
- the landowner/possessor should expect that invitees will not discover or realize the danger, or will fail to protect themselves from it; and
- the landowner/possessor fails to exercise reasonable care to protect invitees against the danger.
Subsection (a) is oftentimes called the “notice” requirement. Simply stated, subsection (a) limits the property owner’s liability to situations where it actually knows, or what it should know through the exercise of reasonable care, about a dangerous condition on the premises. But how does an attorney show what the property owner knew or should have known about a dangerous condition on the premises?
UNSAFE CONDITION CREATED BY PROPERTY OWNER
In our example, it is unclear why water is on the floor. Maybe someone spilled the water, maybe the water is leaking from a nearby freezer, or maybe it was raining outside and customers brought water inside on their shoes. If a store employee spilled the water, the store created an unsafe condition and can be found negligent for not cleaning up the floor. In this situation, the store had actual notice of the dangerous condition because it created it. Actual notice is the same as knowing the dangerous condition existed. Subsection (a).
UNSAFE CONDITION CREATED BY THIRD PARTY
The grocery store could also be liable for a dangerous condition created by third parties. For example, if the store should have discovered water on the floor spilled by another customer and failed to take reasonable measures to protect other invitees from the water on the floor, then the store could be found negligent. In this situation, the store may have what is known as constructive notice. Constructive notice arises when the dangerous condition has existed for enough time that the property owner/possessor had sufficient time, in the exercise of ordinary care, to discover the dangerous condition and remove the danger. Thus, constructive notice is the same thing as should have known about the dangerous condition through the exercise of reasonable care provided in subsection (a).
In our example, we do not know how long the water was on the floor or what actions the grocery store took to discover the dangerous condition. To deal with this situation, attorneys often hire expert witnesses to show what a reasonable store should have done to discover and remove the dangerous condition. But not every business is treated the same way when it comes to whether constructive notice is required when there is no proof of actual notice.
REASONABLY FORESEEABLE DANGERS
Many businesses have departments that allow customers-invitees to help themselves to products, such as by removing and replacing paint cans from shelves. These are called self-service businesses. Washington law does not require invitees injured in these departments to show proof of constructive or actual notice of a dangerous condition if the dangerous condition is reasonably foreseeable. In these types of businesses, the department is presumed to have notice of certain dangerous conditions based on the nature of self-service business.
For example, a paint can falling from a shelf and onto an invitee’s foot is probably a reasonably foreseeable dangerous condition in that specific department. A leaking roof after a major storm that causes a slippery floor in the paint department is probably not unless the water was present for an unreasonable amount of time.
Self-service departments are not the only types of businesses presumed to have notice of dangerous conditions. Washington case law has recently expanded the presumption of notice to any business where the “nature of the proprietor’s business and its methods of operation are such that the existence of unsafe conditions on the premises is reasonably foreseeable.” Darcy v. State of Washington Liquor and Cannabis Bd. (2021).
Using our grocery store example, the frozen aisle department of the store is a self-service area. As such, evidence of constructive notice is probably not required. Likewise, if the customer-invitee had slipped while entering the store on a rainy day, constructive notice may not be required. But if the customer slipped in a puddle while entering the store on a hot, sunny day, an attorney would likely be required to produce evidence of constructive notice, and proving constructive notice is not always easy.
It is hopefully clear that premises liability cases can be complicated and factually intensive. The injured person’s status is important, and there must be proof the property owner had notice of the dangerous condition unless it is a certain type of business. This is not an exhaustive list of all the facts and burdens of proof required in premises liability cases. If you injured on a premises, you should consult a personal injury attorney with experience litigating premises liability cases.
WHAT SHOULD I DO IF I SUFFER FROM AN INJURY DUE TO A SLIP AND FALL?
Aultman Law is a small law firm with big law firm experience handling premises liability cases. Aultman Law handles personal injury law, business law, construction law, and insurance law and has tried cases to juries in Washington State, Idaho, and Texas.
Experience is the difference at Aultman Law. Among the advantages you enjoy at Aultman Law is an excellent track record, unparalleled customer service, and transparent fees. If you would like more information or want to schedule a free consultation, I invite you to call me today at 509.282.2456 or complete our Online Contact Form.