It's a scenario that plays out in countless grocery stores,convenience stores, even restaurants and fast food chains, aroundthe country: A person slips on the floor, and a lawsuit springs upseemingly before the plaintiff even hits the ground. The classicslip-and-fall case is the claim that the store was negligent inallowing a dangerous condition to exist that caused the mishap.

Until recently, a plaintiff could prevail in a slip-and-fallcase only if a store's employee caused the dangerous condition, andthe store knew of the dangerous condition or should have known ofthe dangerous condition because it existed for a long time. Theonus was on the plaintiff to prove that the store was at fault,which is no easy feat.

Lawyers for the defendant traditionally felt that as long asthey had the store's sweep-log, they had enough ammunition to winthe case. For the most part, particularly in Massachusetts, theywere correct, as the courts almost always ruled on behalf of thedefendant. Because of this, complacency tended to creep into themindset of some attorneys and claim examiners, resulting in a lackof preparation that can potentially cause the client to fall victimto both large verdicts and bad publicity.

Shifting the Approach

The law began to shift in April of 2007, when the SupremeJudicial Court of Massachusetts adopted a new approach toslip-and-fall cases. The court adopted the "mode of operationapproach," allowing the plaintiff to satisfy the notice requirementif the plaintiff can prove that the injury occurred because of adangerous condition related to the store's self-service mode ofoperation.

More than two years after the change in the slip-and-fall law,many claim examiners and defense attorneys remain complacent andreliant on old proofs. Here's a perfect example.

In July of 2007, a 78-year-old grandmother of three walked downthe aisle of a major Boston-area supermarket, slipped on some rice,and suffered a broken knee. On the surface, it seemed like justanother slip-and-fall claim. Yet, the claim was denied immediatelyupon submission of the demand without considering the variablesinherent to the particular situation, such as a very sympatheticplaintiff -- an older woman trying to raise three grandchildren onher own; a very tangible injury (a fractured knee); and thepotential liability under the "mode of operation" standard.

The failure to factor in the "mode of operation" ruling that theplaintiff could win the case, if it could be shownthat the accident was caused by a foreseeable dangerouscondition ultimately proved fatal. In this case, the dangerouscondition was the rice on the floor, and the "mode of operation"was that the stacking of the bags of rice by store workers on ametal shelf had created the spillage.

Before trial, the judge suggested they offer $10,000, which Ibelieve the plaintiff would have accepted. Instead, the defenseattorney and the claim examiner conferred and came back with anoffer of zero dollars. It turned out to be a costly decision. Thejury awarded the plaintiff $50,000, which ballooned to just over$55,500 when added costs and interest were tacked on.

So, now that we know how a claim examiner got into thisposition, what can be done to ensure that others don't also fallinto the same trap? There are several steps that can be taken:

Review the plaintiff's theory of liability. Inthis case, a piece of sharp plastic caused the bag of rice to tearwhen it was stocked on the shelf, creating the "mode of operation"ruling. This theory of liability was not a surprise, it wasdismissed by the claim representative when asserted in the demandpackage until the jury came in with its verdict.

Know the plaintiff. A 78-year-old grandmotherraising three granddaughters, who has lived in the same house for40 years with no claim history and a fractured knee requires aserious look as a potential threat at trial. Check to see if thereis a pattern of lawsuits and do a medical exam, if warranted, tosee if causation is an issue. Causation is one of the essentialelements that a plaintiff must prove in a personal injury action.Simply put, the defendant's negligence must be the "legal orproximate cause" of the plaintiff's injuries. But that's not to saya medical exam, and the costs associated with it, is needed inevery case.

For example, in the case of the grandmother, she fell andfractured her patella. The x-ray showing the fracture was takenwithin hours after the fall. Causation was not an issue in thiscase. There was no real reason in this case to pay for a doctor toexamine the plaintiff, draft a report, and possibly testify attrial, at a cost of thousands of dollars.

On the other hand, if this particular plaintiff had slipped andfallen and alleged an injury to her lower back, visited orthopedicdoctors and physical therapists for several months, and theresulting diagnosis was a bulging disc as a result of the fall,causing a percentage of permanent impairment, then your antennashould go up. In such a scenario, causation is a big issue. Youshould have the plaintiff examined by a doctor who can provide anopinion as to whether the fall caused the bulging disc, or if itwas a pre-existing condition.

Think out of the box when it comes to resolvingclaims. It can be said that claim representatives tend torely too much on computers and formulas when attempting to come upwith settlement offers.

What you need to do, however, is put a human component into theevaluation. Ask yourself the most important question, "How likeablewill the plaintiff appear to the jury?"

Don't make the mistake of cookie-cutting each settlement basedon other cases. The plaintiff in the supermarket case might nothave been Mother Theresa, but a 78-year-old grandmother, strugglingto raise kids on her own, now out of commission with a fracturedknee, going to trial three weeks before Christmas, is about asclose to a blank check for a jury as they come. Ultimately, a claimis worth what a jury will give, not what the computer says.

Finally, listen to your attorney's advice. Makethis a priority in the proceedings. Your attorney knows the legalsystem, has hopefully performed all the necessary due diligence inthe case, and can offer you an honest and forthright riskassessment -- one that can save you a multitude of headaches downthe road, and just as many dollars. Don't wait until the eve oftrial for this information; your attorney should provide you withassessments early and often.

By following these four simple steps during a slip-and-falllawsuit, you can take the fate of your claim out of the hands of apotentially sympathetic jury, and any decision that might comeforth for a potentially damaging verdict.