WASHINGTON, April 26, 2015 – You walk into the grocery store, now down aisle 4, and all of a sudden you are on your back.

You come out of your apartment on a wintry day and as you descend the steps going to the parking lot, you find ice under your feet and see that now you have a bird’s eye view of the sky.

Both of these situations are commonly what attorneys call “slip and fall,” and to the angst of the person who fell, they mostly are not situations where there will be compensation for injuries, medical bills, or other damages.

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In 1998, Theresa hired me to make a claim for her. She was in Williamsburg, Virginia, on vacation with her husband. They were a really nice couple from New York, excited about seeing Colonial Williamsburg. Theresa fell and injured herself as she stepped out of her rented hotel room. There was an air-conditioning unit hanging into and out of their room, and water condensation had leaked onto the outside wood platform.

So much leakage had occurred that in fact the wood was stained. The stained area was about three inches wide, slightly raised, and very slippery.

Theresa did not see the stain or realize there was water leakage, as they had checked into the room in darkness the evening before the morning of her fall.  When she left her room in the morning going to her car, she was carrying several items, and she was not looking at the AC unit or at the wood flooring.

She fell on the slippery stained area of the wood and fractured her ankle.

As might be expected, you are normally entitled to recover compensation in injury cases when someone else did something wrong, causing your injury. The legal word is “negligence”. Compensation for negligence typically means the one who was at fault pays for medical bills, for the disruption of life (often called pain and suffering), and for wages or income lost for the person injured.

In slip and fall cases, however, it is never that simple. Negligence is not always clear in these situations. What did grocery store personnel do wrong if little Billy runs through aisle 4 and knocks over a jar of jelly?

The argument would be that the grocery store was negligent because they did not clean up the spilled jelly.

The landlord whose walkways were icy did not do anything wrong. He or she did not make it snow or create the ice on the ground surfaces.

The argument would be that the landlord was negligent in not clearing the ice.

The hotel where Theresa stayed was negligent in not seeing, or if they saw, not fixing the slippery wood under the leaking AC unit.

The problem with all slip and fall cases is that the analysis goes two levels deeper than simply proving someone else was negligent.

The first, beyond proving negligence, is the need to prove that the responsible party knew or should have known that there was a danger.

The grocery store folks must know, or it must be proven that they should have known, that there was a slippery surface on aisle 4 before you fell, and that they did nothing to rectify the problem.

If ten minutes before you fell, another customer saw the problem and reported it to a store representative, and thereafter, the store did nothing, you might have a good case. If the store was made aware 15 seconds before you fell, the ability of the store to correct the problem is almost “zero” and the case against the store is probably going nowhere.

Grocery stores, because falls are not uncommon, have procedures in place to try to prevent people from falling down. Mostly, all of them have an employee walk through the entire store, aisle by aisle, every fifteen or twenty minutes, and the employee actually keeps a record, he or she marks on a clipboard that each aisle was clean.

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A grocery store is not a 100% guarantor of your safety. They are not required to have someone monitor every inch of their floor at all times. They are not responsible if they did not actually know, or if they should not have known, that there was a problem.

The owner of an apartment complex clearly knows it is snowing and that there is ice on the steps and walkways. What governs these types of situations is the concept of commercial reasonableness. It is not reasonable to require that the landlord have a crew on standby to clear steps and walkways the moment a storm begins and then throughout a winter event.

It is reasonable to require that clearing of ice and snow takes place. The time when the clearing occurs becomes the focus on what is, or what is not reasonable.

It is reasonable to require hotel personnel to see that there is a leaking AC unit, and to clean the wood surface below it where people walk, to assure it is not slippery.

The second hurdle, if an injured person who fell can prove negligence and that the believed-responsible party knew or should have known of a problem, is what is known as “affirmative defenses.”

The person who falls must be able to show that he or she did not contribute to the event (of falling), and that they did not assume the risk of being injured.

Contributory negligence is a complete “bar” to recovery in “contributory negligence” states (which are Virginia, Maryland, Washington, D.C., Massachusetts and Kentucky). In “comparative negligence” states (all of the others), the amount of the injured person’s responsibility (percentage to be decided by the court) serves to reduce the total recovery allowed.

A “bar” means there is no recovery possible. Contributory negligence means the injured person is somewhat responsible for the event causing his or her injury.

In slip and fall cases, the first question asked by defense lawyers and by insurance claims people is: “were you looking where you were walking?”

“Yes.”  You probably just killed your case.  Here’ the next question: “then why didn’t you see the jelly or the ice?”

An injured person is also held to the “knew or should have known” concern. Don’t you know that things fall off of shelves in the grocery store.

Don’t you know it is snowing?   Don’t you know that when it snows the outside ground surfaces can be slippery? Don’t you know that if the surfaces are slippery you have to be more careful?

If you answer the above question about whether you were looking where you were walking “no,” the next question triggered is “why weren’t you looking?”

A reply, that often is successful, is that shoppers are not looking at the floor because they are looking for products on the shelves. Manufacturers pay enormous amounts of money for shelf-space positioning, always trying to be strategically placed so the shopper can easily see their product. It is natural not to look at the floor when you are looking for a certain brand of cereal or soup.

The “yes” answer to the “were you looking where you were walking” question evokes the other affirmative defense, that of assumption of the risk. If you were looking, and you saw the jelly or the ice, and you proceeded anyway, it can be said that you took a chance that you would not fall by going forward, knowing there was a problem.

If you assumed the risk, and then get hurt, you cannot recover damages.

If you jump off of a ten-story building, you assume the risk of injury. Same thing in stepping forward knowing there is spilled jelly or ice on the sidewalk.

Slip and fall cases, finally, are difficult because most people who sit on juries (if these cases have to be litigated) will not “own” that they could be responsible for falling when there is jelly or ice. In order to win a case, the jury must be emotionally and psychologically “on your side,” meaning they can imagine themselves in your place.

Unfortunately, most people find it easier to believe they would pay attention, and that they would not fall. Jurors want to believe that injured person who did fall was not like them and was at least partially responsible, because unlike what they would do, pay attention, the person who fell did not pay attention.

After Theresa’s trial in Williamsburg, I spoke to several jurors. Despite that we had an outstanding, seemingly invincible case against the hotel, they explained that they felt Theresa should have been more careful and should have been watching where she was going. The fall and ankle fracture left Theresa and her husband with a ruined vacation, months of rehab and a bundle of medical bills. The jury’s defense verdict left Theresa and her husband with a dim view of the sensibility of the Williamsburg, Virginia community, and particularly of its jurors in her case.

My conversation with the jurors after the trial revealed more. The first line “she should have been more careful” really meant (as many of the jurors tacitly offered when questioned further) that they felt that if it were them, they would have seen the leakage and the staining on the wood, and that they would have realized it was slippery. These sentiments were offered despite the facts that Theresa got in late at night, and was carrying things that prevented her from seeing the wood platform flooring.

People have a hard time seeing themselves as being at fault for anything. In slip and fall cases, it is easy to avoid adopting the situation of someone else. Your default is that you would not have been careless.

Slip and fall cases are difficult, but can be won. They all will end up focusing on the specific facts. They are not like a rear end, at-a-red-light auto accident case where it is clear what happened and who is at fault.

Trust that the insurance industry never wants to pay injury victims anything. They have a great deal of ammunition in slip and fall cases to accomplish that goal.

Tongue-in-cheek morale of the story: stay inside, hire a shopper, or live where it doesn’t snow. Williamsburg, Virginia, by the way, is a wonderful place.

Please be careful.

Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website
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