Tens of thousands of people are injured each year in “slip and fall” or “trip and fall” injuries. The injury may take place inside a grocery store, when a patron slips on a fruit or vegetable that has fallen out of its bin. Or the owner or manager of the store may have failed to put up a “Caution Wet Floor” sign where an employee has just cleaned the floor but it is still slippery and presents an unreasonable danger to customers, or employees failed to conduct and document regular “floor sweeps” to ensure that nothing is in the aisle that could pose a danger to customers.
A landowner or business operator must know or should have known of the dangerous condition on his land to be held liable. This is known in legalese as “notice.” The notice may be either “actual”—the owner or an employee either created the dangerous condition or saw it or was informed of it by other people before the victim’s fall—or it may be “constructive”—that is, that it existed long enough that the reasonably careful owner would have discovered it and taken steps to warn of or remove the danger. The victim has the burden of proving that the landowner had actual or constructive notice of the dangerous condition, and had sufficient time either to warn of its existence or eliminate the danger prior to the victim’s slip or trip and fall.
The requirement of notice can be proved by direct evidence, such as the owner or an employee having created the danger or the testimony of other persons that they, too, had slipped or tripped, or, even though they did not slip or trip themselves, had notified the owner of the danger. Or the existence of the dangerous condition can be proved by circumstantial evidence, such as by a lack of the owner to have any sweep log or other evidence that the area was inspected for dangerous conditions in time for the owner to take remedial action to prevent injury to the victim.
Each case must be determined by its own unique circumstances; there is no hard and fast rule imposing exact time limitations. If the injured victim can show that the owner or an employee did not make an inspection of the area within a time period that was reasonable under the circumstances, an inference arises that the dangerous condition existed long enough that the failure to discover it was not reasonable. It is ordinarily a question of fact for the jury whether, under all the circumstances, the defective condition existed long enough that it would have been discovered by an owner or employee who exercised due care.
The exact length of time the dangerous condition must exist before it should, in the exercise of reasonable care, have been discovered and remedied, is not fixed and varies according to the circumstances. A person operating a grocery store, in the exercise of ordinary care, must use a more vigilant outlook than the operator of some other types of business where the danger of things falling to the floor is not so obvious.
The failure to inspect the premises within a reasonable amount of time before the accident gives rise to an inference that the defective condition lasted long enough to have been discovered and remedied. Allowing this inference does not change the rule that if a store owner has taken care in the discharge of his duty by inspecting its premises in a reasonable manner, then no breach will be found even if a person does suffer an injury. Many larger stores have a “sweep log” that requires an employee to inspect the aisles regularly for dangerous conditions and then sign the log stating the time the area was inspected and that no dangerous conditions were observed or, if there was a dangerous condition, that corrective measures were promptly taken.
When a person has been injured because she tripped and fell due to, say, a ridge created by uneven pavement or flooring, the landowner or business operator will frequently claim that the defect was trivial and he should not be held accountable for such a small hazard. The “trivial defect” defense is most frequently raised in trips and falls due to uneven surfaces in sidewalks and floors. The courts recognize that a landowner cannot be held legally responsible (“liable”) for every minor imperfection on his property, even if the landowner knows of the defect. Accordingly, the courts apply the legal rule that it is impossible for a landowner to maintain heavily traveled surfaces in perfect condition and minor defects such as differences in elevation are bound to occur despite the use of due care by the landowner.
In determining whether a defect is trivial as a matter of law, the court must consider all of the circumstances. The mere size of the danger, ledge, or depression should not be considered in a vacuum. The court must determine whether there were any circumstances surrounding the accident that might have made the defect more dangerous than its mere depth. The court must look at the intrinsic nature and quality of the defect to see if, for instance, it consists of mere nonalignment of two horizontal slabs or whether it consists of a jagged and deep hole. Also, a defective condition that may be apparent during the day might be considered dangerous at night without proper lighting. Evidence that other people slipped or tripped on the same defect may be important to establish that the condition was in fact dangerous and that the landowner knew of the danger before the victim slipped or tripped and fell and was injured.
Defects that have been found to be trivial as a matter of law include: (1) a metal strip that protruded some one-eighth of an inch from a building’s marble floor, (2) a quarter of an inch hole with a two-inch diameter in a chipped tile floor, and (3) ridges in a floor of one-half of an inch, three- fourths of an inch, seven-eighths of an inch, one inch, and one-and-a-half inches in height.
Defects that have been found to be a question for the jury to decide whether or not they were trivial include: (1) a quarterof-an-inch piece of reinforcing steel (rebar) protruding from the top of a concrete tire stop, (2) a one-and-a-half inch depression in the sidewalk, (3) a five-inch pothole that extended to two feet when the victim fell, (4) a chuckhole two to six inches deep, (5) a hole two inches deep and ten inches square containing oil and grease, (6) a hole nine to eleven inches long, four to six inches wide, and two to three-and-a-half inches deep, (7) a six to eight inch puddle of syrup on a store floor, (8) a hole in a sidewalk five inches long, two inches wide, and up to three inches deep, (9) a ridge raised two inches above the sidewalk, and (10) a hole in a sidewalk twelve inches long, three inches wide, and two inches deep.
The seriousness of a defect is not determined by a tape measure alone. Any and all circumstances surrounding the accident which might have made the defect more dangerous than its mere size are taken into consideration. Among the factors taken into consideration include: (1) how long the defect has existed, (2) whether the view of the defect was obstructed in any way, (3) whether the accident occurred at night in an unlighted area, (4) whether other persons were injured by the defect, and (5) whether someone else had notified the owner, manager, or an employee of the defect and a reasonable amount of time to fix or remove the defect had passed.
There is a defense that is often raised in slip and fall cases. This argument is that the danger was obvious, and that the accident and injury were the victim’s own fault because he wasn’t watching out for his safety. The fact that a danger was obvious often is not, in and of itself, a sufficient basis for relieving the landowner or business owner of her duty to keep her premises in a reasonably safe condition. The dangerous condition must be considered in light of all of the circumstances.
For example, a store may place its displays and signs of sales at eye level or higher to capture the shoppers’ attention. Such signs and displays are designed to catch the eye of the shopper and take her eyes off the floor in front of her while walking.
Even when the victim was partially at fault for failing to notice an obvious danger, this does not necessarily mean that he cannot hold the landowner legally responsible for some of his injuries. Applying the legal doctrine of “comparative negligence,” the fault of the victim is weighed against (compared to) the fault of the landowner. For instance, if the landowner was 60 percent at fault for allowing the dangerous condition to exist on her property and the victim was 40 percent at fault for not noticing the obvious danger, then the amount of the victim’s recovery is reduced by 40 percent. Hence, if a jury awarded the victim $100,000 but found he was 40 percent responsible for the accident for failing to see the obvious danger, then the victim’s award would be reduced by the percent of his fault (in this case, 40 percent); so, instead of receiving the full $100,000, the victim would receive only $60,000.
If you have been injured in a slip and fall or a trip and fall incident, sometimes your injuries will be obvious, such as a broken arm or head injury. However, it is not at all unusual for injuries to take a few days to a few weeks to show up. You should contact an experienced personal injury law firm as soon as possible. The attorney often will want to send his investigator to the scene of the accident to inspect and take pictures of the dangerous condition, if it still exists.
The attorney or his investigator will also want to talk to any witnesses to the fall while the facts are still fresh in their minds. The attorney can also help with seeing to it that you receive a thorough physical and mental examination and treatment for any injuries resulting from the accident.