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Injuries from Falling Down
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?
The big question is: Why was the store owner, casino, or premise owner at fault for your fall? Many people have the mistaken belief that a premise owner such as a casino or store is automatically liable for injury when someone is hurt on their property. This false impression may be re-inforced if employees of the premise owner express concern for the injured person and interest in collecting information about the incident. But ultimately, liability depends on whether a jury would say the premise owner violated some standard of care and therefore at fault.
Fall cases are almost always difficult because even if the Defendant has some fault, the defense will almost always argue at trial that the injured person was partly at fault for not watching where they were placing their feet.
Our firm has had only one case in which in which liability was admitted in a fall case. In that case an escalator in a casino stopped suddenly and numerous people fell and hurt themselves.
Possible New Law Favoring People Who Slip and Fall on Spilled Food or Drink in Groceries or Restaurants?:
The traditional law when a person slip and falls on a foreign substance, such as spilled food or water, in a business is that there is no liability unless the business's employees caused the spill or had notice of it in time to clean it up before someone fell. This often was a hard burden of proof for a plaintiff to meet.
There is a modern trend to say that if the grocery store lets customers pick out their own grapes, or the 7-11 lets customers fill their own drinks, then the grocery or 7-11 is aware that it has created a situation where customers will be expected to get food or liquid on the floor and must be responsible to another customer who is injured by such spilled drink or food unless the owner can prove that reasonable care was constantly taken to keep the floor clean.
This doctrine is known as the "mode of operations approach."
The Nevada Supreme Court has approached this topic in a round about sort of way.
In the 2012 Nevada Supreme Court case of FGA v. Giglio, 278 P.3d 490 the Court stated that it had "implicitly adopted the mode of operations approach in an earlier 1993 case involving a supermarket. That 1993 case was Sprague v. Lucky Stores, Inc., 109 Nev. 247, 849 P.2d 320. But in the 2012 case the Nevada Supreme Court refused to apply the "mode of operations" approach to a sit-down restaurant. And, in the 1993 case the Nevada Supreme Court did not use the phrase "mode of operations." The 1993 case involved a the Court reversing the lower court's grant of summary judgment to the defendant--summary judgments often get reversed on appeal. In the 1993 case a store employee had testified that customer are constantly digging through the grapes and dropping them on the floor.
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:
- Did the store cause the leak? For example, was there a freezer with bags of ice for sale that was leaking? Was there a freezer nearby with bags of ices that were melting? If the fall was near the vegetable section were any of the sprayer hoses leaking? For example, in one case a potential client who had fallen near the check out came into our office with a high quality photo showing ice melting in a freezer with water puddling under the freezer near the fall site. This picture was helpful in both persuading the store to settle and persuading us to invest our time and money in the case.
- Is there something about the way the store does business that makes spills likely. Is there a self service coffee or drink bar? Recent Nevada cases suggest that if the there is a self-service drink station, the store may be liable for spill caused by customers.
- "Did you see anything that suggests the liquid or other material had been on the floor a while? For example, were there a lot of shopping cart tracks through the liquid?"
- "Did any employees make any statements that they knew about the spill and had been meaning to clean it up?"
- Was the fall promptly reported to the store? (This causes the store to have its security do an incident report. Sometimes the security people aren't honest but sometimes they are. Even though the security people know they are employed by the store, sometimes there is good stuff in their incident reports.) Unless the incident is promptly reported to the store, the store or its insurance will be very suspicious of the claim and video surveillance that might be relevant may be destroyed in the ordinary course of business.
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, before filing suit, 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 a 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 directions. 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.
If you are involved in such a fall, you should NOT assume that "everything is on videotape." Reasons why the fall may not be on videotape include the following: 1) The camera angle didn't catch the fall, 2) the video is too grainy to show the real condition of the floor, 3) the video camera wasn't working or turned on, 4) the video is only stored for a very limited amount of time if there is no incident report, 5) there was an incident report but someone forgot to save the videotape. That said, there may well be a video if an immediate incident report is made.
However, as a general rule casinos and other big commercial operators will not release a video until after a lawsuit is filed. This can make it difficult for a lawyer and client to evaluate a claim before filing suit. So, by all means, if you are involved in an incident take all the pictures you can with a cell phone camera.
A more difficult question arises when it has been raining outside. What if someone slips when in an entrance way on a wet floor that really is more slippery when wet? If the person was just coming into the building from the rain, there might be a good defense that the person had notice of the rain and wet surfaces. If the person had entered the building before the rain and was surprised by a wet floor in the lobby when they were leaving they would have a better case. However, even in the desert rain is predictable. A well designed building entrance way should not be slippery when people track in rain water.
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. U.S. currency is almost exactly 6 and 1/8 inches long if you ever need to measure something. It is easy to fold a dollar bill or a twenty or any other U.S. currency exactly in half and then again into three even parts. Now you have something that is almost exactly one inch wide. This can be used to show scale in a cell phone photo. An abrupt change in level of 1/4 inch between two pieces of concrete on a walkway might not be a good case whereas an abrupt change in level of 3/4 inch could be a good case.
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. As a general rule ramps should not have a slope greater than 1 to 12, e.g., if one foot in height it should be 12 feet long.
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 a 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.
Occasionally, we get a case involving a very dumb structural tripping hazard. There is an outside door to a room and the floor level of the room is below that of the outdoor sidewalk or concrete. A person coming out of the bright Las Vegas sun into the naturally darker room may not see this drop off and fall.
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.
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.
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.
Of course, the location of a steps is important. Are we talking about a hiking trail or are we talking about steps in or outside a building?
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 and fences are increasingly common on trampolines to prevent kids from bouncing off the trampoline onto the floor.
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:
- Marble tile used around a swimming pool can have a roughened surface instead of a mirror surface
- Shower floor tiles can have ridges on the surface.
- Shower floor tiles can be made quite small so that the roughness of the grout lines makes the floor less slippery.
Nonetheless these are tough cases. While accident victims or their friends can take cell phone photos of tripping hazards at the time of the accident, ordinary people cannot measure the co-efficient of friction of tiles.
For bathroom falls it may be relevant if there were grab rails available. While these grab rails have traditionally been used for handicapped people, given how common bathroom falls are, well designed bathrooms should have them.
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. Likewise, the mechanism should also prevent the door from being slammed rapidly if there is a strong gust of wind. If a defective door closure mechanism causes injury it can give rise to liability.
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.
Most Common Defenses to Fall Cases:
A common defense is to deny that the Plaintiff was injured because of the hazard alleged. Does the Plaintiff have good witnesses? Was there surveillance video? Did the Plaintiff promptly report the fall to security personnel if security people were available? If the Plaintiff fell and there were no witnesses, especially if the Plaintiff isn't the world's most upstanding citizen, the defense will try to cast doubt upon the Plaintiff's account. Legally, a jury should find for the Plaintiff if they think there is a 50.1% chance (more probable than not) the Plaintiff is telling the truth. But in reality, a jury may be reluctant to take money from the Defendant or its insurer and give it to the Plaintiff if they think the Plaintiff is probably telling the truth but is concerned there is some chance the Plaintiff is fibbing about some parts of the claim.
The defense always claims that the Plaintiff was partly at fault and in Nevada if the Plaintiff was more than 50% at fault the Plaintiff loses. Unless a walking surfaces suddenly collapses, the defense will argue that hundreds or thousands of people passed over the alleged hazard without incident and if the Plaintiff's attorney argues it was a hazard, why didn't the Plaintiff see the hazard? Most fall cases that the Plaintiff wins involve some deduction for comparative fault. (If the Plaintiff is not more than 50% at fault, Plaintiff gets his or her damages minus the percent he or she was at fault.)
Unlike most auto collision cases in which liability is not disputed, liability is almost always disputed in fall cases. It helps if the fall injuries are obviously the result of the fall, for example, a broken arm or shoulder with abrasions where the person hit the ground. If the fall injuries are soft tissue injuries, the Plaintiff and their lawyer will be fighting a "two-front war," first trying to convince the jury of liability for the fall and then relating the soft tissue injury to the fall. For this reason fall injuries that are accepted by lawyers tend to be those have injuries clearly resulting from the fall.
GAMES CASINOS PLAY IN DEFENDING AGAINST SUITS BROUGHT AGAINST THEM: The most common personal injury claim against casinos is a slip or trip and fall case. Less common, but often significant are breach of security cases where a casino hotel guest is assaulted in their room or elevator. The vast majority of personal injury claims are brought by out of state visitors. Personal injury claims of a probable value of not more than $50,000 must first go through the mandatory non-binding arbitration program. The casino will usually demand that the plaintiff appear in Las Vegas before the arbitration hearing for an in person deposition or be present in person at the arbitration. Most arbitrators grant those requests, although there are good reasons why they should not. Then if the arbitration does not resolve the case and it goes to regular trial, the plaintiff will have to return to Nevada a second time. Casinos know this can be an expensive dollar and time burden for the plaintiff and may refuse to settle a case in the hopes the plaintiff will give up.
Casinos as a general rule will never provide security video of an incident until after the plaintiff has filed suit and subpoenaed the video. The casinos are hoping that the plaintiff and their attorney will not want to go the expense of filing suit not knowing if the security video helps their case. Also, casinos (and most other defendants) will demand a non-resident cost bond when an out of state person files a lawsuit. The plaintiff's lawyer can usually buy such a bond for about $100, but this is just another tactic to make it more expensive to file suit and to enable casinos to refuse to settle very small personal injury claims because the cost of actually filing a lawsuit over them makes them not worthwhile.
What to do Immediately if You Fall and Hurt Yourself and Think the Owner of Where you Fell Might be Liable:
If you have the ability to immediately notify security, do so. File an incident report. If it turns you are not really hurt you didn't waste much time. If it turns out you were really hurt you have helped establish your claim. What you have to understand about claims is that the job of the defense is to raise any doubt they can about your claim. If you, or your lawyer presents a claim that you broke your ankle by tripping on a large crack in the walkway, along with a photo of the crack, and the first the defense hears of this is hours or days later, the first question that will come to the mind of the defense is: "How do we know that is where she fell?" That's why it is important to immediately get the security people on the premises to make a report.
Take a picture of anything you think makes the premise owner liable. Pictures can be e-mailed or shown to a lawyer who can then get a gut feeling for whether you have a case without the lawyer having to spend time visiting the site or spend money to send out an investigator to get pictures. Lawyers like myself like to be able to quickly visualize the accident site and a picture lets us do that in a way that a verbal description does not.
If there were witnesses who helped you get up, get their names and phone numbers if they are willing. A stranger who testifies that the Plaintiff fell because there was liquid on the floor can add a lot to the Plaintiff's case if the store denies there was liquid. If a witness will take a picture for you of an unsafe tripping or slipping hazard that can be very valuable.
Finally, do not mistake politely expressed concern for your injury as an admission of liability. If you report a fall and injury to a high end hotel you will likely be treated with compassion and courtesy and the hotel may go out of its way to do a few things for you. It might give you a free meal or a free night's stay. That is not an admission of liability. It is simply good customer service and possibly a nice way to get you talk freely which may help the hotel begin to build up its defenses.
Likewise, if you make the report and security is rude or unconcerned, it does not make for a more valuable case. The basic issue is always whether a reasonable and prudent operator of the mall or casino or movie theater would and could have done something to prevent the tripping hazard that caused your fall.