Last year we did a case where a 75 year old woman tripped and fell as she was entering the vestibule leading to the restroom of a grocery store. She fractured her hip and had surgery to repair the fracture. Following surgery her bowels got twisted, developing a “volvulus”, a large blockage of the lower intestine. When doctors did surgery to remove the volvulus, she had complications from anesthesia and became paralyzed and unable to speak. About six weeks later, she passed.
The fall, which was recorded on a surveillance camera, was caused by a legal defect in the premises: the absence of a “transition strip” where the linoleum tile in the hallway changed to the ceramic tile in the vestibule. The ADA (Americans With Disability Act) has accessibility standards which are mandatory for all commercial properties, and are often incorporated into building codes. These regulations require a sloped transition strip in any change of height between 1/4″ and 1/2″. A change of height of more than 1/2″ requires a ramp. Why? Because those changes of height are a tripping hazard to pedestrians, and not just for disabled or elderly people. The contractor who re-modeled the store, or its subcontractor, had failed to install this very inexpensive part in the floor, or if they had, it had come out after the remodeling was finished. We represented the husband and three adult children of the lady who died. The case settled before trial for a confidential amount. The money and compensation, no matter how much, are always too little for the loss of a parent, a spouse, a sibling, or a grandparent.
Falls are one of the most common causes of serious injuries that we keep data on. Data from the CDC (Centers for Disease Control) and other sources estimate that falls cause about 20,000 deaths per year. Falls are the second-leading cause of death for people over 65. Falls are the number one cause of visits to hospital emergency rooms in the U.S., with over a million incidents per year.
Sometimes it makes you wonder if we would have been better off if we hadn’t evolved into bipeds, right?
When someone falls due to a defect on somebody else’s property, it’s called a “premises liability” case. When the defect in the premises is a violation of regulations or statutes, it is also “negligence per se”, that is, negligence as a matter of law. Premises cases are one of the most difficult of all cases a lawyer can take on. For someone like me, that’s what makes them fun.
The Basics of Premises Liability Law
Premises liability, like much of our law, has its origins in the common law of England. It’s a bit more complex than simple negligence. Negligence is a claim that someone injured somebody else through a failure to exercise ordinary care. I think of premises liability as a sub-set of negligence law, because it has some particular and very challenging aspects.
First, the duty of a landowner or business proprietor varies according to how the law classifies a person entering the property: an invitee, a licensee, or a trespasser. An invitee is on the premises for a business purpose of the landowner/proprietor, typically a customer in a store. Towards an invitee the business has a duty to exercise care to keep the premises reasonably safe from hazards or defects, and to warn of any defects that are not “open and obvious”. A licensee is on the premises with permission, but not for business. A social guest is a licensee. The owner is required to warn the licensee of dangerous conditions which are known to the owner but not likely to be discovered by the visitor. A trespasser is someone who is on the land without actual or implied permission. The only duty owed to a trespasser is to not intentionally or maliciously injure them. An exception is made for a child trespasser, if the property has an “attractive nuisance” which may cause kids to come on the property, like a dirt pile or swimming pool. Those should be fenced in, if they are in an area where children are likely to play.
An essential component of premises liabiltiy is the concept of hazard. In order to have a claim, a person must be injured by something that is illegal or unusually dangerous on the premises. Liquid on a tile floor, spilled ice, goods that are piled too high and fall off of shelves, unpainted curbs, and holes in parking lots are examples of premises hazards. The way I look at premises cases, the hazard must be something unusual in order to form a basis for liability: something that a juror would look at and say, “there’s something wrong there, something that shouldn’t be there.”
If there is a hazard, we also have to look at whether the landlord is liable for it. A store owner can be liable if they knew about the hazard and failed to warn about it; if the hazard had been there long enough that they should have known about it and corrected it; or if they created the hazard. In the case of the lady who fell and later died, the store owner or their contractor created the hazard, so we didn’t have to prove that they knew about it or should have known about it. Actual or implied notice of the hazard, however, is an issue we often fight about in premises cases. Implied notice can be proven through evidence of lax inspection procedures. These days most retail stores have surveillance cameras throughout the store. The cameras may have been installed to prevent shoplifting, but they can also provide evidence of how and why a hazard was created that caused an injury, and how long it had been there.
Open and Obvious
One of the doctrines peculiar to premises liability cases is “open and obvious”. A shopkeeper must repair a defect or clean up a hazard, and warn about it once it becomes aware of it. This is whey we see the yellow “wet sign” warnings on floors when they are cleaning the floor or servicing the restrooms. However, the shopkeeper has NO duty to warn about an “open and obvious” defect. Something that an ordinary person should be able to see and avoid may be classified as “open and obvious”, and therefore not the basis for a claim. Some of the really weird cases I read decades ago contended that darkness itself is an “open and obvious” condition. I remember reading a case in which a person walked into a darkened shed, not knowing there was a huge hole dug into the floor of the shed. The injured person was denied a recovery because it was “open and obvious” that the inside of the shed was pitch black, therefore there was no duty to warn about or correct the hole! I hope and believe we’ve gotten a bit more enlightened (pardon the pun) since then. The danger was not darkness. The danger was a hole in the floor, which was hidden by darkness.
Just because something can be seen, does not mean it is necessarily open and obvious. Most people do not go around looking down at their feet as they walk. We scan our environment, and are distracted from “looking where we are going” by other people, advertising signs, store merchandise, and various other distractors. Usually the question of whether something is obvious is a fact question for a jury to decide; however, in most premises liability cases defendants file a Motion for Summary Judgment claiming that the plaintiff “could have seen the hazard if they were looking”, and therefore “as a matter of law” do not have a case.
Just because the defendant says it, doesn’t necessarily make it so.
A landlord has no duty to repair natural conditions, such as ice and snow which cause walking surfaces to be slick. However, if the landlord does something which makes the condition worse, or creates the condition, they can be liable. In one Oklahoma case, the owner of a business left lawn sprinklers on during a freeze. Since they had sprayed the water which then turned to ice, they had created the condition and were liable to an injured pedestrian. In another case decided by our Supreme Court, when the landlord did something which created a black ice condition at the entrance to their building, they were liable for creating an invisible and extremely dangerous condition beyond what nature had done.
Since premises liability is a variant of negligence, contributory/comparative fault comes into play. Usually when somebody falls they feel embarrassed and think it is partly their own fault for not “looking where they were going”. Usually a jury thinks so too. In most premises liability cases, if the injured person gets a plaintiff’s verdict the jury also assigns some percentage of fault to the plaintiff. If the damages are $100,000.00, and the plaintiff is 20% at fault, the verdict is reduced to $80,000.00. If it’s 50/50, it becomes a $50,000.00 verdict. But, if it’s more than 50% the fault of the plaintiff, they get zero. That’s in the Oklahoma statutes, and is why we call our system “modified comparative fault”.
That’s it, folks!
If any of this is interesting to you, shoot me an email and tell me about your problem. You will always be welcome. firstname.lastname@example.org.