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In this episode of Legal Squeaks Dennis discusses various circumstances that can cause a trip, slip and fall, and what you should do if you are a victim on such an accident.
In This Episode
- Where slip and fall accidents can occur
- Who is accountable for a slip and fall
- The duty of care of property owners
- Why a reasonable period of time matters
- Differences in state slip and fall laws
- When slip and falls are your fault
- Contributory Negligence vs. Comparative Negligence
- Can you really fight city hall?
- Your time limit to remove snow
- Natural vs. Unnatural accumulation
- Getting sued for moving snow
- The importance of documenting your fall
- What evidence you need to gather after a fall
Full Episode Transcript
Hi, everyone, welcome to Legal Squeaks, I’m your host, Dennis VanDerGinst, and today I’m going to talk about something that’s fairly topical, maybe even more so this time of year than, than most of the year.
What I’m referring to is slip and fall accidents. Obviously slip and fall accidents or slip, trip, and fall accidents can happen any time of the year. But we certainly see them occur more during the winter months due to the ice and snow.
So in general terms, a slip and fall accident is a situation, obviously, where a person is injured by slipping or tripping and falling due to a dangerous condition on the premises.
These types of accidents can occur inside or outside. They can be on commercial property or residential property. They can be on public property or private property. A lot of times people just assume that, you know, stuff happens and it was their own fault. And maybe, therefore, nothing can be done as far as holding someone else accountable when a slip or trip and fall results in injuries.
But that’s not the case. In fact, a lot of the time a property owner or the manager of a property or even a third party maintenance service can be liable for causing injuries that result in these types of, of, or result from these types of accidents.
So if that happens, then they’re going to be obligated to compensate for the damages that are related to the, the injuries.
Slip and fall accidents are covered by negligence laws which differ frequently from state to state. Generally, those laws dictate that property owners and managers have a duty of care to ensure that their property is safe.
Now that means different things under different scenarios. First of all, it can mean that they can be liable for damages to people who are injured on their property if the cause of their fall was a defect or obstacle that they intentionally placed. Understand, I’m not saying that they intentionally meant for harm to occur, but for example, maybe we’re talking about a retailer. And the, an employee of the retailer places a low lying sign near the entrance to a store which was intended to alert customers to a new sale. It’s not intended to harm, it’s just to tell them about the sale.
But because of where it’s located, it becomes a tripping hazard and somebody trips, falls, and it causes injury. The owner or the manager of that property can be just as liable to compensate for those injuries as someone who maybe places a tripwire to booby trap their property. And in that case, obviously, they’re intending harm. Now, the intent that’s important here is not whether they intended harm, but it’s whether they intended to place this defect or this hazard in, in a position that could cause harm.
So that’s what, what the the telltale factor is. But the second situation is when a property owner or manager is liable for injuries that occur as a result of a defect that exists on the property that they didn’t necessarily place.
As long as you can show that they knew, or should have known the defect existed and had a reasonable period of time to fix it, but didn’t do anything, then they can be liable.
So, for instance, using a retailer example, again, perhaps a customer comes in. It’s not even an agent of the, of the store. It’s just somebody who comes in. They’re looking at products on the shelf and maybe they spill a liquid detergent, and it, it’s, it’s all over the aisle way. And an agent of the store, an employee, for instance, sees it, walks away and doesn’t do anything. Along comes another customer, slips on this liquid and falls and is injured.
Here again, the agent of that property owner, the employee, knew that there was a defect. He knew that somebody had spilled that detergent but failed to do anything about it. And of course, you have to presume that there’s a reasonable period of time to do so.
If you change that scenario just a little bit and assume that, you know, that that employee left to go get a wet floor sign or to get a mop and then the accident occurs, well, might be a different situation entirely because you have to give them a reasonable period of time in which to address the defect.
So it really depends on the circumstances that are specific to each scenario in order to determine whether there’s going to be liability that will force the property owner to pay compensation.
In some states, there’s also a difference in the duty of property owner or manager has to people on their property, depending upon the reason that they’re there. For instance, where they a trespasser. Were they a guest? Were they a customer or a client. In those states that have that distinction, the duty is going to be less to a trespasser than it is to someone else.
But in most states, they’re doing away with that distinction, and it’s simply a matter of looking at what were the reasonable expectations for safety under the circumstances that were present at that time.
Also, we know, you know, people can slip and trip and fall for reasons that really are not the fault of the property owner. They maybe they weren’t watching where they were going or they are otherwise failing to exercise due care. For instance, maybe they’re walking with, carrying something heavy that’s keeping them off balance.
Because of that, because of the fact that other things can contribute to falls, the law in most states recognizes that fault is not always 100 percent on one party or another.
So states have implemented laws that account for the apportionment of negligence between the parties. This is either known as contributory, comparative, or modified comparative negligence.
So the original strict definition of contributory negligence was that it’s a legal standard barring an injured person from recovering any damages from the defendant if they contributed to the injury in any way. So even if they were only one percent at fault, in strict contributory negligence states, there’d be no recovery.
Well, you can, you can tell that that would be a very unfair result in a lot of situations. You know, in many instances, if a jury, for instance, decided that the fact that you wore a certain type of shoe contributed to the accident. That alone might be enough to keep you from getting a recovery.
Contributory negligence is now sometimes used synonymously with another standard, which is what I referred to as comparative negligence. Comparative negligence means that the recovery for damages is going to be reduced by the injured person’s proportionate share of fault. So if a jury, for instance, decided that 70 percent of the fault was that of the owner of the property, but 30 percent of the fault was the injured party, then the person would still get a recovery, but it would be reduced by 30 percent.
So, for instance, using the scenario of somebody slipping and falling on the liquid in the aisleway, the you know, the detergent, for instance, if a reasonable person concluded that, well, it was, it was the fault of the store, you know, the agents and employees of the store to leave that there for this period of time without cleaning, cleaning it up, without putting a sign down there.
They were mostly at fault. But this person should have been watching where they were going. Maybe they were carrying some groceries and could have been more attentive. And therefore, they’re going to attribute 30 percent of fault to the injured party.
So if the award, for instance, were $100,000, it would be reduced by 30 percent and the injured party would be able to collect $70,000.
Now, other states like Illinois and Iowa actually follow something called modified comparative negligence, which acts the same way, meaning that there’s a reduction of the, of the amount that you can recover based on the proportionate share of fault in causing the accident.
However, if the injured party is over 50 percent at fault, then there’s no recovery. So on the last example I used, if the damages are are $100,000 and the injured person is 30 percent at fault, again, he’d still get 70, he or she would still get $70,000. But if they are determined to be 51% at fault, they get nothing.
Another area that can impact whether or not there’s going to be a financial recovery when there’s a slip and fall is the nature of the defendant. You know, they say you can’t fight city hall. Well, you can. And we do it all the time, but there are a lot of hurdles that you might have to overcome when you are trying to fight city hall.
For instance, there are often governmental immunities that you have to address. Sometimes there’s a distinction between what is considered a discretionary function of government to spend or not spend money, for instance, versus what might be considered a ministerial or maintenance function. And whether the case, or whether the situation is a discretionary function or a ministerial function can determine whether or not there’s going to be immunity that applies to, forbid any kind of recovery against the government.
So, for instance, let’s say the city owns a lot where there are a number of defects that exist. The people who are responsible for making decisions about that lot have determined that there’s going to be, it’s going to cost a lot of money to repair or remove these defects, and they decide we’re not going to do it. It’s just not worth it.
Then somebody comes by and they’re on that lot and they trip and fall and they’re injured. Well, in that instance, immunity may, may apply because they have made a decision as to whether or not to spend money to repair those defects or remove those defects or warn of those defects. And if they’ve made if that is a discretionary function, then perhaps immunity applies and you’re not going to be able to get a recovery.
If, on the other hand, there’s already been a decision, you know, the city council has determined this has to be repaired or cleaned up or whatever, but they fail to, to maintain it after they’ve already decided to spend the money. Now, it’s just a ministerial function that they have to maintain it, they failed to do so. Someone comes along, is injured in the same fashion. Now, maybe there’s no immunity and you can recover.
So, as I said, you know, it’s not always easy to fight city hall, but it can be done.
But as I alluded to at the beginning of this presentation, in the winter, we see a lot of slip and fall accidents related to the weather. Specifically, obviously, ice and snow. The rules I just outlined apply to those cases, too. But some states have specific rules that also address the unique nature of those cases.
So, for instance, in Iowa and in some other states, if a property owner fails to remove ice or snow from their property within a reasonable period of time, and then a person comes along, slips and is injured, the owner might be liable for compensation.
In fact, in Iowa, it goes even further. A property owner must clear a public sidewalk that abuts their property within a reasonable, reasonable period of time, or they can be accountable for injuries under those circumstances as well. So, and what I mean by reasonable period of time is, let’s say it’s snowing, it’s snowing and the snow is is accumulating. Nobody’s expecting anyone to be out there shoveling snow, removing snow constantly as it snows. However, if there is an abatement of the snowing, you have just a reasonable period of time to remove that from the abutting sidewalk and any of your property where you would expect people to be traversing.
And if you don’t, if somebody slips and falls, you can be liable. Now, just across the river in Illinois and in other states, there’s a distinction made, it’s completely different. There’s a distinction made between what’s termed a natural versus an unnatural accumulation of ice or snow.
And what that means is that if someone slips and falls on ice or snow on your sidewalk or your property, you’re not liable if that is just simply a natural accumulation of ice or snow. Very different from what you would see in Iowa, and other states. You’re only going to be liable in the, in states like Illinois if you are liable, or if you created an unnatural accumulation.
So ironically, this can happen, and it has happened. Let’s say that you are an Illinois property owner and it has snowed and it has accumulated and you’re concerned someone’s going to be on your property. They’re going to slip and fall. From a common sense perspective, yeah, you want to remove that. And I hope, you know, nobody misconstrues what I’m saying here and thinks, well, we don’t need to remove that. We shouldn’t remove that because we’re going to expose ourselves to liability.
I get how that you could come to that conclusion, because it is ironic when you undertake to remove snow under those circumstances and you do it in the way most people would. So, for instance, you’re shoveling and you toss it to the side of the sidewalk. Or you’re using a snow blower to maybe clear your, a path or your driveway. Or maybe you have, you’re a business owner and you have a parking lot that needs to be plowed and you’ve piled all that snow off to the side.
You seem to have been the good Samaritan, done what you should have done, done what you would need to do in Iowa, in states like that, but now that pile of snow thaws the next day when it warms up, and now it freezes back in, on that sidewalk or on that driveway or on that parking lot. Now, it has become an unnatural accumulation of ice or snow for which you can be liable.
So that’s the irony. You’ve, you’ve been the Good Samaritan here and done what you thought you should do and you remove that snow, thus changing the character, characterization from natural to unnatural, which now does expose you to liability if somebody comes along and slips and falls on that ice or that snow that you’ve now accumulated.
Other common ways that happens, by the way, let’s say there’s an unnatural, there’s a depression in a sidewalk or on the concrete on your property, which calls causes water to pool, and then it freezes. Well, because the water wouldn’t have normally pooled right there, under those circumstances, that can be considered an unnatural accumulation.
Or let’s say you’ve got a downspout which forces water into an area where people are going to be walking and the water comes out and now it cools down, the water refreezes. That, again, can be an unnatural accumulation for which you’re going to be liable if somebody gets injured. Or maybe the contour of landscaping is forcing water into another area where people are going to be walking and it freezes. Again, it could be an unnatural accumulation which would cause you to be responsible for compensating anyone who’s injured if they slip and fall under those circumstances.
By the way, in Illinois and states that apply, that apply that kind of distinction, that characterization of ice and snow will continue if it’s tracked in from out of doors. So let’s say you’re at a store and you walk through some slush that has accumulated as a result of just a natural accumulation. It was snowing. It started to melt. You’re walking through the parking lot. The water adheres to your shoes. You walk into a store and the water comes with you. You track a bunch of water. The owner doesn’t clean up the water. Next person comes in, slips and falls on that water that came from that snow and slush and whatnot.
Well, because it was a natural accumulation. When you walk through it and tracked it in, it remains a natural accumulation when you come into the store. And arguably, under those circumstances, the owner of that property is not going to be liable for injuries that occur as a result of somebody falling and hurting themselves under those circumstances.
Conversely now, if that happened to be an unnatural accumulation, so, for instance, using the example again of water that has been routed from a downspout into an area that you’re walking in, and under those circumstances, it you’re tracking it in through this unnatural accumulation. Then somebody walks in after you and slips and falls on that water. It’s now an unnatural accumulation for which the owner or manager of that property could be held accountable to compensate for the accident or for the injuries that occur as a result of the accident.
So you can see it gets to be a bit tricky depending on the state and the scenario that surrounds the accident. These types of accidents can obviously result really serious injuries. Anything from sprains, you know, wrists, ankles, fractured wrists and ankles. Shoulder, dislocations, if you happen to fall wrong onto your onto your arm and extend your arm. Broken hips are very common, especially with elderly people who may fall backwards or on the side. Any type of bone fracture.
And then some of the really serious injuries result from people who conk their heads as they fall. Concussions, which may also lead to traumatic brain injuries. So it’s important that you get medical attention. If you’ve suffered from an injury like this, you get medical attention even if you’re not sure if the injuries are serious, because you want to make sure you’re, you’re having everything checked out so that nothing sneaks up on you later that you didn’t anticipate.
Also, since the injured party always has the burden of proving liability and showing that they exercised proper, exercised proper care for their own injuries, if your injuries don’t require immediate emergency attention, do what you can to try to document what happened.
So if it happened at a commercial property, for instance, you know, a store or something like that, try to file an accident report or, you know, some type of incident report. If there’s someone you can report that to. A manager, you know, a store manager or someone like that. Make sure that you’re getting names and contact information for witnesses.
Note the condition of the lighting, and any other defects that might have contributed to your accident. So if it was water or if it was ice or snow, get photos if you can, because obviously in that scenario, if you wait too long, the condition will change. It can change, you know, hour to hour. There might be more accumulation, there might be a melt. And now you’re not going to be able to reflect exactly what the condition was that caused your, your harm.
So if you can get photos and or video as soon as possible and then certainly get proper medical attention as soon as possible as well.
Because of the nuances in the law and the difficulties you might face in presenting a claim, as I’ve kind of described it, it’s always a good idea to have a personal injury lawyer if you’ve suffered injuries in a slip or trip and fall accident.
So I hope that this information was helpful. Of course, I hope you never become a victim of one of these accidents. But if VanDerGinst Law can help, we’d be honored. Be sure to tune in next week when we’ll have more legal and consumer news that may impact your life.
Please be sure to like and subscribe to this podcast and also check out Uncommon Convos to listen to some entertain, entertaining and informative interviews.
Thanks again. Stay safe. And I love you all.
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