Many people who are injured in a slip-and-fall don’t know
their rights. Often they’ll simply think it was their own fault and therefore
they have no case. In a lot of instances this may be true. But if you’ve been
hurt in a fall, it’s still a good idea to consult with a lawyer who handles
personal-injury cases. That’s because it may be easier to get compensated than
you realize — even if you’ve
encountered an “open and obvious” danger.
Take for example a recent case in New York City. A
theatergoer named John Sada slipped and fell on a wet staircase during
intermission, then sued the theater for his injuries.
The theater owners argued that they couldn’t be held
accountable because they’d been maintaining the theater responsibly and had no
realistic opportunity to discover the hazard and address it in time to prevent
the injury. To back up their argument, the owners even presented evidence of
their maintenance schedule.
However, a New York judge concluded that the case could
proceed to trial. According to the judge, evidence of the maintenance schedule
wasn’t enough to show the owners weren’t negligent (unreasonably careless). For
that, they would have had to show they stuck to the schedule on the day of the
accident. Sada also presented evidence
that he told an usher about the water on the stairs before he left for
intermission, 15 minutes before his fall occurred. While you might think this
would hurt his case — after all,
he knew of the hazard well before he decided to navigate it, making it an “open
and obvious danger” — the court
felt he showed enough to be able to bring a claim against the owners.
In another case, this one from Massachusetts, a woman who
tripped and fell while encountering a supposedly obvious hazard got a
significant recovery at trial.
Pamela Matckie was working as a volunteer chef at a food
festival being held in Gillette Stadium, home of the New England Patriots. She
tripped on warped plywood placed around the perimeter of the field and
shattered her left arm bone.
Matckie, who had graduated from the renowned Le Cordon Bleu
cooking school, suffered permanent damage and could no longer pursue her dream
of working as a professional chef. She sought to hold several parties
accountable: the stadium’s owners, its developers, the security and event
staffing company that handled the festival and the stadium owner’s insurer.
All the defendants pointed fingers at each other before
pointing out that Matckie and other volunteers could have simply avoided
walking on the plywood boards, which they characterized as an “open and obvious
A jury, however, disagreed and awarded substantial damages
to the estate of Matckie, who had passed away a few weeks before the trial.
Finally, in another Massachusetts case the highest court in
the state expanded what’s known as the “mode of operation” doctrine in a way
that could make it easier for slip-and-fall victims to recover, even where the
hazard is arguably open and obvious.
Generally when an injury victim sues a storekeeper over a
slip-and-fall, the victim has to show that the owner had some kind of notice of
the condition that caused the accident.
But under the mode of operation rule — which is recognized in a number of states — a storekeeper’s negligence is almost
implied if there’s a “substantial risk of injury” inherent in how he or she
runs the business. So if, say, a grocery store customer slips and falls on a
piece of fruit in a self-serve produce aisle, the customer doesn’t have to show
the shopkeeper knew or should have known of the condition. Instead, in order to
avoid responsibility the shopkeeper has to show it did everything a reasonable
shopkeeper in the same situation would have done.
Initially, Massachusetts only applied this rule to cases
that involved “spillage and breakage” of items intended to be sold on the
premises or carried about the store.
But more recently, the state’s highest court ruled that
under the mode of operation rule a woman who broke her leg slipping on a
spilled drink on a dance floor could sue the nightclub where the accident took
place. And even more recently, the court gave the go-ahead for a woman to sue a
gardening store after she fell on a small stone that had migrated from a landscaped
gravel area onto a concrete walkway.
Of course the results in any personal-injury case depend on
the specific circumstances. But if you have suffered an injury in a fall, it’s
very important to talk to an attorney instead of assuming you have no recourse.