It’s a scenario that plays out in countless grocery stores, convenience stores, even restaurants and fast food chains, around the country. A person slips on the floor and a lawsuit springs up seemingly before the plaintiff even hits the ground.
It’s the classic “slip and fall case,” a claim that the store was negligent in allowing a dangerous condition to exist that caused the slip.
Until recently, a plaintiff could prevail in a slip and fall case only if a store’s employee caused the dangerous condition, the store knew of the dangerous condition or should have known of the dangerous condition because it existed for a long time. The onus was on the plaintiff to prove that the store was at fault. That was no easy feat.
Lawyers for the defendant traditionally felt that as long as they had the store’s sweep-log, they had enough ammunition to win the case. And for the most part, they were correct, as the courts almost always ruled on behalf of the defendant.
Because of this, complacency tended to creep into the mindset of some attorneys and claims examiners, resulting in a lack of preparation that could cause their client to fall victim to both large settlements and bad publicity.
The law began to shift in April 2007, when the Supreme Judicial Court of Massachusetts adopted a new approach to slip and fall cases. The court adopted the “mode of operation approach,” allowing the plaintiff to satisfy the notice requirement if the plaintiff can prove that the injury occurred because of a dangerous condition related to the store’s self service mode of operation.
But it was a wakeup call some attorneys never heard. Even now, more than three years after the change in the law, many claims examiners and defense attorneys remain complacent and reliant on old proofs.
Here’s a perfect example. In July 2007, a 78-year-old grandmother of three walked down the aisle of a major Boston-area supermarket, slipped on some rice and suffered a broken knee. On the surface, it seemed like just another day at the office for the attorney of this major supermarket chain. He seemed to be rather callous about the case, trying it as he would all others without considering the variables inherent to the particular situation, such as a very sympathetic plaintiff (a 78-year-old woman trying to raise three grandchildren on her own), a very tangible injury (a fractured knee), and the fact that the trial was held on Dec. 7, 2007, just three weeks before Christmas. A legal perfect storm the attorney overlooked.
To make matters worse for the defendant, the defense attorney and claims examiner never factored in the “mode of operation” ruling that the plaintiff could win the case, if it could be shown that the accident was caused by a foreseeable dangerous condition. In this case, the dangerous condition was the rice on the floor, and the mode of operation was that the stacking of the bags of rice by store workers on a metal shelf had created the spillage.
Before trial, the judge suggested they offer $10,000 (which the plaintiff likely would have accepted). Instead, the defense attorney and the claims examiner conferred and came back with an offer of zero dollars. It turned out to be a costly decision. The jury awarded the plaintiff $50,000, which ballooned to just more than $55,500 when added costs and interest were tacked on.
Now that you know how a major employer got into this position, what can be done to assure that other businesses don’t also fall into the same trap?
Review company polices and procedures. Make certain they point out explicitly what potential problems store managers and other employees should be looking out for, particularly in the areas of spillage and breakage. In this case, a piece of sharp plastic caused the bag of rice to tear when it was stocked on the shelf, creating the “mode of operation” ruling.
Know the plaintiff.Check to see if there is a pattern of lawsuits and do a medical exam, if warranted, to see if causation is an issue. Causation is one of the essential elements that a plaintiff must prove in a personal injury action. The defendant’s negligence must be the “legal or proximate cause” of the plaintiff’s injuries. But that’s not to say a medical exam, and the costs associated with it, is needed in every case.
For example, in the case of the grandmother, she fell and fractured her patella. The x-ray showing the fracture was taken within hours after the fall. Causation was not an issue in this case. There was no real reason in this case to pay for a doctor to examine the plaintiff, draft a report and possibly testify at trial, at a cost of thousands of dollars.
On the other hand, if this particular plaintiff had slipped and fallen and alleged an injury to her lower back, visited orthopedic doctors and physical therapists for several months, and the resulting diagnosis was a bulging disc as a result of the fall, causing a percentage of permanent impairment, then an antenna should go up. In such a scenario, causation is a big issue. The plaintiff should be examined by a doctor, who can provide an opinion as to whether the fall caused the bulging disc, or if it was a pre-existing condition.
Think out of the box when it comes to risk management.Companies tend to rely too much on computers and formulas when attempting to come up with settlement offers. Put a human component into the evaluation. Ask the most important question, “How likeable will the plaintiff appear to the jury?”
Don’t make the mistake of cookie-cutting each settlement based on other cases. The plaintiff in the supermarket case might not have been Mother Theresa, but a 78-year-old grandmother, struggling to raise three children, now out of commission with a fractured knee, just before Christmas, is about as close to a blank check for a jury as they come. Ultimately, a claim is worth what a jury will give, not what the computer says.
Finally, listen to the attorney’s advice.Make this a priority in the proceedings. The attorney knows the legal system, has hopefully performed all the necessary due diligence in the case, and can give an honest and forthright risk assessment, one that can save a multitude of headaches down the road, and just as many dollars. Don’t wait until the eve of trial for this information; the attorney should provide assessments early and often.
By following these four simple steps during a slip and fall lawsuit, employers can take the fate of their business out of the hands of a potentially sympathetic jury – and any decision that might come forth for a potentially damaging settlement.
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