Injuries from Falling Down
by Jonathan C. Reed
Falls are the leading cause of injury hospitalization and the third leading cause of injury death. Can a person who falls sue the organization which owns or controls the place of the fall? To have a case the fall victim and their attorney must be able to convince an insurance company (or a jury) that the organization in control of the fall site was careless. Even though the fall may have happened in a store controlled by a giant corporation such as WalMart the need to prove WalMart careless is often the same standard as used against a single person.
Fall cases are divided into different categories:
Substance on Floor:
A common fall injury in a store is that a customer slips on spilled liquid or other material on the floor that shouldn’t be there. The usual store defense is: “The liquid the customer slipped on must have been spilled by a customer. We have someone check our floors every 15 minutes, so the liquid must have been spilled between our inspections and therefore we weren’t careless. Too bad about the fall victim, but we are only liable if we were careless and we weren’t careless.”
A good attorney at the initial interview will ask their client/victim and any witnesses questions like these:
1. “Did you see anything that suggests the liquid or other material had been on the floor a while? For example, were there a lot shopping cart tracks through the liquid?”
2. “Did any employees make any statements that they knew about the spill and had been meaning to clean it up?”
3. "Is there something about the way the store or business is set-up that makes spills likely? For example, grocers frequently spray water on their vegetables both to keep them crisp and to make them weigh more. Does the sprayer leak? Or, is there something about the way that the store makes self-service coffee available that makes spills likely?"
Also, we all know that good intentions, such as having an employee check the floor every 15 minutes, are often not carried out. In Nevada attorneys and their investigators have the right to directly approach low level employees and chat with them—if they are willing—without the employer’s attorney being present. Thus a good attorney can hire an investigator to examine the defensive claim of frequent floor checks.
Inadequate Warning of Slippery Floor:
All intelligently run commercial premises have folding yellow plastic wet floor warning signs to be placed when there is mopping operation in process or after a customer spills something and before the spill can be completely wiped up. Failure to set these up after the floor is wet or failure to set up enough of these can give rise to liability. In a recent case I had, a casino buffet customer fell and badly injured his elbow on a wet floor where a janitor was mopping. The janitor had set out only one warning sign. Customers approached the buffet table from all direction. No sign was visible to my client on his approach to the buffet. In this case the injured man's wife tried to take pictures showing the lack of a warning sign visible to her husband when he had approached the buffet. Casino security told her not to and assured her that everything was on videotape. So she put her camera away. After they hired me I asked for the videotape. The casino (Orleans Hotel and Casino) told me that the videotape was privileged, but they had reviewed it and there was no liability. Naturally, this forced me to file suit and seek a judicial order demanding production of the videotape. When the videotape was produced it was very helpful to us.
Structural Tripping Hazard:
Unfortunately, many walking surfaces have tripping hazards such as uneven cracks in the cement, objects sticking up out of the surface, steep slopes, unusual stairs, and ramps or stairs without handrails. In these cases it is important to obtain a photograph of the tripping hazard. It is best if such photos are taken from several different angles and show scale by placing a ruler or common coin such as a penny or quarter next to the hazard. If you are the victim of such a tripping hazard and have a cell phone camera but no ruler you can show scale with common items of standard size such as a quarter or a dollar bill.
The strongest cases involve a building code violation such as ramp, even a very short one, being too steep, stairs or ramps lacking a handrail, the edge of a step being too round, etc. Building codes vary from one jurisdiction to another and the date of completion of the structure may determine what code rules apply. A good attorney will know to check for any code violations. For example, in one case I settled an apartment complex had an asphalt ramp between the parking lot and a concrete sidewalk leading to the lot. The ramp was only a few inches high and a few inches long but it was way too steep for the city code.
But a building code violation is not necessary for a successful fall case. In one case I (Jonathan Reed) took to a jury trial the premise owner had cut a large square out of an outdoor sidewalk which formerly had been used as a planter. At the time of my client’s fall, however, all of the plants had died and been removed and there was simply a dirt square in the middle of a sidewalk. It was easy for the jury to conclude that this was an unnecessary tripping hazard. In another case I had a client fell on the carpeted hallway of a casino. It turned out that underneath the carpet there was hole in the concrete floor which had been patched with thick plywood. Eventually, heavy traffic caused the plywood to delaminate and buckle creating the tripping hazard.
Also, many trade associations publish standards or guidelines which may not yet have made it into the building code. However, these standards can be proof of negligence.
Handrails Required:
People lose their balance all the time. That is why stairs and steps and ramps require handrails. Failure to provide a handrail can give rise to liability. Cell phone pictures can come in handy to describe the place of a fall where you think there should have been a handrail. You might be interested to know that almost Supreme Court Justice Robert Bork filed a lawsuit claiming a million dollars in damages when he fell climbing to a speaker's platform that lacked handrails. Here's the link:
http://blogs.wsj.com/law/2008/05/09/bork-settles-slip-and-fall-lawsuit/
The importance of a handrail or, at least a hand hold, is illustrated by an option on the 2011 Ford F-150 pick-up truck. This option has a fold out step at the back of the pick-up bed. Integrated into the tailgate is a fold out post to use as a hand hold when using the step.
Inadequate Lighting:
Tripping hazards can be concealed by darkness. Local building codes may specify certain lighting standards which can be measured by an expert with a light meter.
Surface should be better if there is a fall:
In the "old days" outdoor playground equipment could be placed over any kind of ground, including dirt with rocks. Nowadays, the standard is that outdoor playground equipment be placed over a soft surface to lessen the impact when children, as expected, fall off the equipment, such as jungle bars. The metal edges of trampolines now come equipped with pads.
Excessively Slippery Surface:
Engineers can measure the co-efficient of friction (slipperiness) of a floor surface both when dry and when wet. Such expert testimony can often make a slip and fall case succeed. Visible efforts to make a floor less slippery, especially when wet include: 1) Marble tile used around a swimming pool can have a roughened surface instead of a mirror surface, 2) shower tiles can have ridges on the surface.
Door Whack Cases:
Many doors in commercial establishments have a spring mechanism to shut them when not being held open. The spring mechanism should not be adjusted so that there is a lot force to close the door as that force can knock a person down.
Wind Whack Cases:
Gates and doors subject to wind gusts should have some sort of mechanism to prevent the gate or door from swinging shut or open with excessive speed; otherwise serious injury can result.
Contact Information:
Mail
Law Office of Jonathan C. Reed
6655 West Sahara Avenue, Suite B-200
Las Vegas, Nevada 89146
Phone
(702) 343-0494
regular business hours: 9am-5pm (Pacific Coast time) M-F
most days: We will also take your call between
7am-9pm including weekends and holidays
E-mail
lvlaw@cox.net
Website Home Page
http://www.accidentawardslasvegas.com
(c) By Jonathan C. Reed 2011