Slip and fall cases can have a comic element to them when you think of the classic slip and fall on a banana peel or any episode of “America’s Funniest Home Videos” which will contain any number of slip and fall incidents. Though it always appears that the unfortunate subject of TV videos walks away embarrassed but unhurt from a slip and fall, that is not always true. Serious injuries can result from a slip and fall.
Slip and fall cases can prove challenging for the plaintiff’s lawyers. There are many ways for the defendant to avoid liability in a slip and fall case by placing the blame back on the plaintiff. For a plaintiff to succeed with such a case, his or her lawyer must follow the “Goldilocks Rule” with regard to the defect which caused the plaintiff to fall. This rule says that the defect must not be too small (de minimus) or too large (open and obvious), but just right for a plaintiff to succeed with a slip and fall claim. If the defect is too big, it is considered to be open and obvious, and the plaintiff could have avoided the defect; if the defect is too small, the defendant could not have known about the defect and it was the plaintiff’s bad luck to have slipped on it.
The defendant or landowner in a slip and fall case owes a duty to people lawfully on the premises or property (whether it be a public place or a private home) to keep the premises reasonably safe from hazards. However in the case where the plaintiff is NOT lawfully on the premises, that is, the plaintiff is a trespasser, the landowner-defendant has a different duty owed to a trespasser. In that case, the plaintiff must prove that the landowner-defendant was willful and wanton in ignoring safety and hazards on the property. This latter standard requires a higher degree of culpability.
Notice is an issue central to a slip and fall case. A plaintiff must show that the defendant was aware of the defect or should have known of the defect. Again, this can be difficult for a plaintiff to establish as a plaintiff must show that the defect was present long enough for a defendant to know or should have known it was present, and the defendant should have cleaned up or fixed the defect. An example might be that a foreign substance like a banana peel was on the floor or a spilled substance. A plaintiff sometimes has to be creative to establish notice, that is the substance was there long enough for the defendant to know about it, and this could be done by showing a banana peel (the foreign substance) was moldy or had tracks across it, thus showing the peel was laying there for a period of time.
Another subject of slip and falls is snow and ice. The rule for snow and ice is different from a foreign substance as snow and ice are considered an act of God or a natural accumulation. A natural accumulation of snow and ice results in no liability for the homeowner. However, when an unnatural accumulation of snow and ice occurs, liability can come into play. Ironically, if it snows and a homeowner does not clear it, it is considered a natural accumulation and there may be no liability. However, if the homeowner clears the snow but does it haphazardly, and a fall occurs, liability could be assigned. Another example of an unnatural accumulation could occur where ice forms under a leaky gutter. The lesson to be learned is that if a homeowner clears snow and ice, it needs to be done properly. Additionally, it is always a good idea to have adequate homeowners insurance in any event.
Another reason slip and fall cases can be difficult for a plaintiff to win is that it is hard to keep the focus on the actions of the landowner-defendant. In an auto accident, the defendant’s fault can be more obvious, that is, the defendant ran into the plaintiff’s car because he was inattentive because he was texting. In a slip and fall case, the fault of the defendant is not always so apparent and clear-cut as the defect, or what the defendant did or did not do, may have occurred a long time ago. The sidewalk was uneven and should have been leveled or the spill in the store aisle occurred 3 hours before the plaintiff was in the store. Also, a jury in a slip and fall case may put themselves in the plaintiff’s situation and think that they would never slip on a banana peel as they are ALWAYS careful.
A plaintiff can help keep the focus on the defendant in such cases if a law or statute is applicable. A safety code that applies to the situation can make it easier to prove something was done incorrectly to show a defect. For instance, a sidewalk that does not measure up to a local code or a store’s cleaning log that shows inspections and cleanings were not done as often as the store’s procedures prescribed could help a plaintiff establish the defendant’s negligence.