Minimize Damages in Slip-and-Fall Cases

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

Until recently, a plaintiff could prevail in a slip-and-fall case only if a store's employee caused the dangerous condition, and the store knew of the dangerous condition or should have known of the dangerous condition because it existed for a long time. The onus 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 as they had the store's sweep-log, they had enough ammunition to win the case. For the most part, particularly in Massachusetts, they were correct, as the courts almost always ruled on behalf of the defendant. Because of this, complacency tended to creep into the mindset of some attorneys and claim examiners, resulting in a lack of preparation that can potentially cause the client to fall victim to both large verdicts and bad publicity.

Shifting the Approach

The law began to shift in April of 2007, when the Supreme Judicial Court of Massachusetts adopted a new approach to slip-and-fall cases. The court adopted the "mode of operation approach," allowing the plaintiff to satisfy the notice requirement if the plaintiff can prove that the injury occurred because of a dangerous condition related to the store's self-service mode of operation.

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

In July of 2007, a 78-year-old grandmother of three walked down the aisle of a major Boston-area supermarket, slipped on some rice, and suffered a broken knee. On the surface, it seemed like just another slip-and-fall claim. Yet, the claim was denied immediately upon submission of the demand without considering the variables inherent to the particular situation, such as a very sympathetic plaintiff -- an older woman trying to raise three grandchildren on her own; a very tangible injury (a fractured knee); and the potential liability under the "mode of operation" standard.

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

Before trial, the judge suggested they offer $10,000, which I believe the plaintiff would have accepted. Instead, the defense attorney and the claim examiner conferred and came back with an offer of zero dollars. It turned out to be a costly decision. The jury 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 this position, what can be done to ensure that others don't also fall into the same trap? There are several steps that can be taken:

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

Know the plaintiff. A 78-year-old grandmother raising three granddaughters, who has lived in the same house for 40 years with no claim history and a fractured knee requires a serious look as a potential threat at trial. Check to see if there is a pattern of lawsuits and do a medical exam, if warranted, to see if causation is an issue. Causation is one of the essential elements that a plaintiff must prove in a personal injury action. Simply put, the defendant's negligence must be the "legal or proximate cause" of the plaintiff's injuries. But that's not to say a medical exam, and the costs associated with it, is needed in every case.

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

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

Think out of the box when it comes to resolving claims. It can be said that claim representatives tend to rely too much on computers and formulas when attempting to come up with settlement offers.

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

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

Finally, listen to your attorney's advice. Make this a priority in the proceedings. Your attorney knows the legal system, has hopefully performed all the necessary due diligence in the case, and can offer you an honest and forthright risk assessment -- one that can save you a multitude of headaches down the road, and just as many dollars. Don't wait until the eve of trial for this information; your attorney should provide you with assessments early and often.

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

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