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The Terminology of Recent 'Slip and Fall' Cases

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Most slip and fall and related personal injury cases are based upon common law negligence. This requires that the entity in control of the business premises exercise reasonable care toward invitees (for example: customers, delivery personnel and employees). There are numerous lawsuits involving these legal doctrines. This comment briefly looks at the past three months of litigation as reported in LexisNexis. LexisNexis typically reports appellate court decisions only (federal District Court decisions are a major exception). Additionally, these results do not include cases that were settled out of court or cases that did not continue beyond the trial court.

The search words invitee, premises, negligence, and the phrase "slip and fall" were entered in the LexisNexis federal and state case database on September 26, 2013, with the search limited to the past three months. Fifty three reported decisions were listed. A variety of additional words were entered into the 53 cases to determine how frequently they appeared. Those results are as follows.

Forty five cases contained the phrase "summary judgment." In summary judgment the judge determines that a party wins (prevails) before a trial. Summary judgment will be granted without a trial at the request of a plaintiff or defendant when there is no dispute concerning the essential (material) facts. All litigants desire to win as early in the litigation process as possible and frequently request summary judgment. The court will not grant summary judgment if there is conflicting evidence concerning essential facts since in a jury trial the jury must determine the facts. Two cases contained the phrase "sovereign immunity." Sovereign immunity is a defense asserted by a governmental entity or a government contractor. The potential immunity of the government from lawsuits is a complex issue.

Twenty one cases contained the phrase "question of fact" and two contained the phrase "disputed facts." It is critical to immediately obtain names of witnesses and pictures of the scene. The word "video" appeared in eleven cases, the word "pictures" appeared in seven cases, and the word "witness" appeared in seventeen cases. "Surveillance" appeared in nine cases. A prudent business will install high-resolution cameras if the cost is not excessive and privacy rights are not impaired. As is well-recognized, this equipment may provide convincing evidence that leads to a rapid resolution of disputes. Additionally, since many people carry a cell phone containing a camera function, an employee or the injured party should take still photos and video of the slip and fall scene and parties.

Twenty three cases contained the phrase "constructive knowledge," nineteen contained the phrase "actual knowledge" and two contained the phrase "reason to know." "Constructive notice" appeared in eighteen cases. What did the premises operator know about an allegedly dangerous condition and how much time elapsed between this knowledge and the actual slip and fall? The more information concerning the danger that is known and the longer this information is known, without corrective action being taken, the more likely there is negligence. There is no hard and fast rule to apply and different jurisdictions approach this critical issue in somewhat different ways. Some say that the condition must have existed for a "considerable" time. Some courts allow similar prior accidents on the premises to be introduced into evidence. Some apply a "mode of operation rule" that states that certain methods of doing business contain inherent risks that the defendant should foresee and guard against.

"Constructive knowledge" or "constructive notice" means that a prudent person should have known a fact, under the total circumstances, while "actual knowledge" involves direct proof of knowledge. One has "reason to know" a fact when in the exercise of due care that fact would have been known. The word "hazard" appeared in thirty five cases and the frequently related word "inspection" appeared in twenty four cases. Was the condition in question a hazard and was there a duty of inspection? Premises need only be "reasonably safe" (30 cases) and need not be in perfect condition.

Nineteen cases contained the phrase "open and obvious." An individual must undertake appropriate personal precautions when the danger is or should be apparent (obvious) to her or him. Failure to do so provides a defense to the lawsuit. The word "sign" (11 cases) typically involves the placement of a wet floor sign when the area cannot be immediately dried. Five cases contained the related phrase "ordinary intelligence." What would a person of ordinary intelligence do in the situation? Two cases contained the phrase "assumption of the risk." Proof that the plaintiff voluntarily encountered a known danger also provides a defense. The word "notice" appeared in 41 cases. Either the injured party should have noticed the condition or the defendant should have been aware of the condition and taken appropriate action.

When the premises are rented or the hazard is created by a contractor working on the premises, the question of potential liability for each party occurs. Fifteen cases contained the word "tenant" and fourteen cases contained the word "landlord." "Exclusive control" appeared in five cases. The issue of dual authority and liability most frequently occurs when the injury happens in a common area such as a parking lot. In fact "parking lot" appeared in 21 cases and "sidewalk" appeared in eighteen cases. Responsibility for the safety of public sidewalks adjoining the premises is sometimes a complex issue. Lease agreements typically indicate maintenance responsibilities and also provide for "indemnification" (4 cases) when damages are imposed. The word "contractor" appeared in eleven cases.

The question frequently becomes if additional parties may be included (joined) in the lawsuit and how payment of the damages will be allocated among multiple insurance carriers. Plaintiffs want to include (join) as many potentially liable parties as possible in the lawsuit to improve the likelihood of collection. Prudent negotiators of rental and construction contracts will include indemnification language so that, even if found liable, payment may be shifted to another party. While the word "insurance" appeared in six cases, in none of these usages was the jury likely to hear this word. Procedural rules typically prohibit the jury being informed of insurance coverage under the theory that the jury should be concerned with liability issues and not the ultimate source of monetary payment. Out of court insurance settlements involve, among other things, interpreting the policy language, comparative negligence, and the identity of potentially liable parties.

A sprinkling of associated terms include "ice" (31 cases), "snow" (27 cases), "weather conditions" (12 cases), "spill" (18 cases), "slippery" (18 cases), "water" (30 cases), "foreign substance" (10 cases),"contributory negligence" (2 cases), "rain" (3 cases), "grease" (4 cases), "mop" (4 cases), "public nuisance" (2 cases), and "acted reasonably" (2 cases). Contrary to what one might suppose, the words "staged," "staged incident," "fake," "pretend," or "prank" did not appear in the reported cases.

What these slip and fall case terms illustrate are the numerous disputes surrounding the grant or denial of summary judgment. That procedural question apparently is the underlying issue in most appeals. The necessity of convincing factual evidence is also apparent. The operator of the business premises must be constantly aware of conditions on the property, such as spills, and immediately take corrective action. In like manner, the plaintiff must be aware of his surroundings. Are multiple parties potentially liable? Prudent planning by the potential defendants will include appropriate insurance coverage and indemnification agreements. Slip and fall cases, while common, are not trivial legal matters.