and Fall Accidents
By James W. Harbert CLI, FCI
In twenty-five years of investigating slip and fall accidents here is what I have learned. They don’t settle quickly and they do need investigation. For those lawyers who think they are small cases that will eventually pay out, forget it. You are doing your client a disservice. In order to settle a slip and fall the attorney must have witnesses, photographs and standards. The witness can be an engineer, the photos can be after the fact but they must illustrate the location and the hazard and the hazard must be covered by a standard that requires that the hazard be identified or eliminated.
In many cases the engineer is your best witness. Get him out there immediately. As soon as you get the case. It is recommended that you put an engineer experienced in slip and fall cases on retainer to respond immediately. Don’t let this wait. Get the ball rolling.
Interview family members or anyone that was with the victim when the accident occurred. Don’t wait until later thinking that you have plenty of time. Memories fade as time passes. Go to the scene with the family and/or witnesses if possible. Find out exactly where the accident occurred. If an ambulance was called, talked to the Emt’s. If the local volunteer fire department responded, run them down and take statements from them. In other words treat these cases seriously.
Many of the retailers and grocery chains treat Slip and Fall’s very seriously. They keep an adjusting firm on retainer that they call immediately in the event of a slip and fall that could produce a claim. These adjusters statementize the clerks and witnesses, make a report and take photographs of the scene. They have the evidence and chances are you won’t hear a lot about it until way late in your claim.
Slip-and-fall and trip-and-fall accidents can occur almost anywhere. The most common places, of course, are public places. Individuals who run public establishments such as restauúrants or grocery stores have a responúsibility to ensure that the walking surfaces are safe.
In the case of an elderly person, a slip-and-fall can mean the end of their normal healthy lives. Often, a shattered hip precipitates a decline in health, attitude and recuperative strength.
On a recent trip to a national discount store I saw an elderly man slip and fall when coming in the back entrance next to the catalog counter. Store personnel had just finished washing down the outside entrance so it was still wet. His feet just came right out from underneath him. I thought the fact that they were washing the entrance to the store was a little strange during store hours. The store had a non-slip mat at the entrance, and signs out. What the store failed to do was realize that while washing down the entire walk and loading area just before the store opened, they left residual water all around the entrance and this is a hazard to shoppers.
This particular gentleman had on good lace-up shoes, but they had hush-puppy style foam rubber soles. These give you maximum grip strength under most circumstances; however, when the soles get wet and come in contact with a polished linoleum floor, the coefficient of friction goes haywire. His feet just came out from underúneath him. He came down and landed on his shoulder and side. It was a distressing thing to see.
In trying to figure out what hapúpened in a case such as this, the investigator should go outside and look at how the store is laid out. If possible, go back to the store and photograph the employees washing the area down on another occasions. See what they do inside the store. Do they take any precautions? Was this an exception or did they always wash down the outside when the store was opened? Look at the composition of the outside walking area, does it retain water? Is it covered so it will not evaporate as fast as if it was in the sun? Is there a store policy on this? If so, where is it written? Large national discount stores usually have policy manuals, look for it in discovery.
Another case involving this store involved popcorn in the walkway. Many of the large stores sell popcorn to shoppers. It is a great treat until it gets on the floor. How slippery is popcorn, Jim Anderson, a nationally known engineer and slip-and-fall expert, concentrated on two main areas; the coefficient of friction of various size kernels of popcorn on linoleum floors, and the ability of clerks to see items spilled on the floor adjacent to the counters. It turns out that the counter was piled too high with candy to allow the clerks to see the spilled popcorn in front of the display. In addition, the popcorn on a linoleum floor was extremely slippery. This is one of those cases that you hear about where the store manager or security personnel are taking statements from the victim while she is on the floor and being loaded on the stretcher.
Remember to ask for the manuals on safety policies and procedures for the store. This particular chain had a comprehensive one. You will also find that many such retail stores videotape everything that goes on in the store. Often the store has a videotape of the actual slip-and-fall. Request that through pleadings.
In another recent case against a superúmarket, the client, as he had done for many years, was delivering milk. A piece of cardboard covered a hole in the floor at the service entrance. His milk cart hit the hole, and the load shifted forward and was about to fall on a customer. He rescued the load by hauling back on it, and, in doing so, ruptured a disc.
What was unusual about this case is that once we sued and got into discovery, we found that the store had a safety manual that an insurance company had prepared for their use. One of the first things listed in the manual is the prevention of accidents. And listed first under prevention of accidents was the floor. The first item under the floor heading stated that “Holes, cracks and defects must be repaired immediately.” Obúviously, the supermarket had not folúlowed its own manual, and that virútually made the case.
Many lawyers look with disdain at slip-and-fall accidents, often relegatúing them to the most junior associate. But slip-and-fall accidents usually result in serious injuries, and my exúperience dictates that they are very good cases.
Don’t scoff if you are assigned a slip-and-fall case; rather, go to the scene and look around before you do anything. It may help to return to the scene at the time corresponding to that of the slip-and-fall. You may find a quick answer to your search, such as the wash-down procedures outside the store on that particular day.
Grocery stores, department stores, and other places where people shop regularly have a greater responúsibility to ensure that their walking surfaces are safe. This is especially true because everything in these esútablishments directs your attention away from the floor and to the shelves. The height of the shelves and their configurations are designed to correspond to the size of shopping cart being used. Next time you are in a grocery store, if you will push your cart up against a shelf, you will see that the bumper of the basket hits the shelf and does not knock anything off.
Why is this important? One of the first cases I worked involved an elderly woman who slipped and fell in a broken bottle of applesauce in a grocery store. She broke her hip. She swore that someone had dropped the bottle and she just slipped in it. We found that a K mart next door to this grocery store had smaller carts than the grocery store. She had picked up one of these carts, carried it into the store, and was using it to shop. The manager and his assisútant said this was common, and there was neither a sign nor an effort to keep these carts out.
Because the carts did not match the size shelves in the store, as she was walking along the aisle containing the applesauce, the edge of the cart tapped the bottom of the applesauce, knocking over a jar right in her path. It hit and she slipped at the same time, breaking her hip.
Test for Reasonableness
As you can see, there is more to slip-and-fall cases than just whether or not the substance has been on the floor for an unreasonable length of time. The usual test for reasonableúness in a grocery store or a public place is 15 minutes. In the case prevúiously cited, the division manager for the grocery store had checked the entire store five minutes before the accident and had not seen anything on the floor. Of course, we know why; and he later found out why. This is, however, often the retailer’s defense. The staff checked it and, therefore, the store is not liable.
But during the investigation, the manager was photographed with one of the smaller carts adjacent to the applesauce. We used this to settle the case quickly and fairly for our client.
A List of Musts
There are several things that can be done and must be done by the individual responding to the case. In many cases, there are no witnesses. If so, the next sources are the paraúmedics or ambulance crews. In rural or suburban areas, volunteer firemen often will respond to ambulance calls for first-aid. They have proven to be highly reliable sources for information relating to the conditions the client was found in.
In cases involving restaurants or grocery stores, often the substance the client has fallen on is soapy water. Often, the responding medical personnel will not make a note as to the conditions of the scene, but they remember it. A good question used by one of the attorneys in our law firm is:
“Were there tracks through the water or footprints making the water or subústance dirty, indicating a lot of traffic in that area (or that the substance had been on the floor for quite a period of time)?”
Often, attending medical peoúple will remember that, or soaked clothes or slipperiness of the substance the client slipped in. Any of this is important in dealing with the insurúance company. We have even gone to the extent on occasion of having clothes or shoes tested for soap resiúdue.”
In addition, the investigator should know what type of shoes the client was wearing, and what type of floor the client slipped on. In slip-and-fall cases, try to ascertain early what type of shoes the client was wearing, and obtain them if possible. There are certain factors that remain constant. Rubber flip-flop shoes when wet are extremely slippery. Merchants should know this as well, and plan accordingly. Slip-and-falls can occur, however, even using the best shoes. We have had slip-and-falls with leather heels, rubber heels, composite heels, and even vibram soles. The important elements are the combination of the heel and sole, the substance on the floor, and the floor itself.
In areas such as foyers and entrances to stores, it may not be a bad idea to have non-slip floors. That is, a painted surface on the floor with some type of friction material that will keep people from falling. This would be in the foyers, where people are coming in and out from the rain. Such areas are difficult to keep dry. After people leave the foyers, there would be a long carpet or mat inside the store to ensure that their shoes are dried before hitting the slick aisles that are so common.
An engineer can do a test for the coefficient of friction on the floor. Some floors are more slippery than others. If the floors have been covered with a very slick type of wax, an enúgineer doing this test can find this easily.
In 2001 many retail risk managers have started using floor applications that reduce slipperiness. When walking into a fast food restaurant if the floor feels sticky it is not because it has not been washed. Look at it, it is clean. There is a substance applied that reduces slip and falls.
All these items are well and good, but the investigator’s job is to try to identify any problems or situaútions that can help the client. One recent case involved a fried chicken store in a shopping mall. The store had placed its trash container at the entrance and exit. Everyone going in and out would use this container and put full drinks and such into it. If there were any leaks in the plastic bags, the liquid would leak onto the floor right at the entrance. Our client was walking out and her feet went out from underneath her in a puddle of water adjacent to this garbage can. She severely damaged her back.
In investigating this case, photograph the establishment from the mall’s main thoroughfare. During this session the investigator should be able to easily see the problem: In this particular case there was liquid on the floor nearly the entire time the investigator was taking pictures. If you use a data back on your camera the time portion on it can be extremely important.
Admittedly, evidence of negliúgence after a particular accident would not put the shop on notice. But what these type of photographs show is a pattern of negligence involving the placement of this trash container:
• The trash container needs to have a thick plastic liner with the regular, thinner plastic bag inside.
• A trash container in such an outlet should be placed in a non-traffic area, not in a location where everyone entering and leaving is going to walk right past it.
• The container must be easily visible by counter help to see if any liquid or food has been spilled in the aisle-way.
A restaurant’s restroom is always a prime location for a slip-and-fall. Many restaurants do not check their rest rooms as often as they should. Often, individuals using these facilities will walk from a foyer area into the restroom area, and the floor will have some food or liquid on it, and you can easily slip and fall. It is easy to photograph these interior locations, but quite frequently you will be stopped from photographing other parts of a restaurant, or at least asked some embarrassing questions unless you take precautions.
Cases involving a loose piece of carpet, a piece of tile that has come up, or anything else that is interfering with safe travel on the floor should be responded to immediately. In these cases it is absolutely necessary that you obtain a photoúgraph of it as soon as possible to show the condition in the restaurant.
If you believe that you will be challenged by walking in and taking a photograph unannounced, the investigator may need to use a ruse or some type of surreptitious means of obtaining it. A ruse is not a lie. Don’t lie to anyone. As attorney’s and investigators we are in the business of determining the truth. We do not start a quest for the truth with a lie. What is being discussed as a ruse is framing a situation that would be normal to the store or restaurant and using for the investigator to get the photographs that he needs. If it is a public place you can take photographs unless you are stopped. This is not illegal, and it is most cerútainly in your client’s interest. Often, you can have several people together at a table in a restaurant, and it is not uncommon to take photographs in restaurants during special occasions. Using a telephoto lens, you can shoot past the individuals to the defect in the floor. In the case of the trash container at the mall store I used my small daughter to play in the hallway of the mall and shot past her to obtain the photographs of the container. This is not disruptive and is looked upon as normal activity. Many times I have used a motor drive on my Nikon with 1000 ASA film and no flash. Just walking through a store when the accident happened with a 28mm lens taking photographs will document what you will need for your file.
Steps or hallways can be a problem in public establishments. There are building code and OSHA regulations that require certain building specifications.. If the steps or the stairs are a problem, measure and photograph them. Measure the total height, then the height of each of the risers and each of the treads. It is probably best to have an engineer check them. If there is any problem with the covering on the stairs or the stairway, you need to photograph and document that as early as possible.
At night some parking lots are too dark. If this is a cause of an accident, the investigator should document the location of each of the lights and, if possible, the watútage and coverage of each light at night. It is difúficult to take a picture and simulate exactly what the eye can see. Instead, identify and locate each of the lights in the specific area where the client fell.
There is not much the investigator can do to photograph the floor of a grocery store when the material that was spilled on it is cleaned up or there is no evidence of the slip-and-fall. In some instances, you can show a pattern. In cases in which the store has trouble with freezer units, soft drink machines, or leaks in the roof that create wet floors, you can see and photograph a stain in the area. If the store has had a lot of problems of that type, there is a good chance you will see evidence of them. Other things to look for include tripping hazards, such as tiles missing, concrete patches, or obstructions on the floor. Check for all these things.
Another thought. Find the location of the spill and the product used. In one case a fall was caused by a windshield wiper gallon container with a faulty cap. When picked up and turned a little the liquid would leak from the cap. This turned into a premises and a product liability case.
When Signs Deceive
Department stores and grocery stores often use signs and other deúvices to warn customers in the parking lots. But sometimes, the design of these signs makes them a tripping hazard! If the sign is designed with a stabilizing foot that extends in both direcútions, it is easy to trip over these stabilizers.
Holes and depressions in the ground
Other outdoor hazards lurk in parks and other areas where individuúals are meant to walk, run and play. In parks and playgrounds you may have decomposition depressions, depressions from construction, or old tree stumps that have decomposed, creating a hole in the ground. The Investigator needs to check the site as soon as he gets the case. Often, a depression appears suddenly, perúhaps caused by some organic material that has been decomposing underúground and has just collapsed. This can be confirmed by taking a core sample from the depressed area. If the parks or grounds department has alúready filled in the hole, it is important that you know its exact location. For this reason, you need to photograph it as soon as possible and measure it so that after a suit is filed, the court can order a core sample from the exact trip-and-fall site.
In Florida there is a Florida statute that prohibits leaving a hole 2 x 2 x 2 or larger uncovered. In situations such as these it must be cordoned or covered to be made safe.
Parking Lot Hazards, sidewalks:
There are many hazards in parkúing lots. In one case, a sparkling-clean gasoline station required clients to pump their gas and then drive up to the pay area. Our client didn’t know that you drove up to the area, and, wearing flip-flops, walked up the hill to the pay area.
The people who constructed this station had used a very smooth asphalt and then painted it with a non-porous sealer.. This created several problems: The surface was extremely slick; and it was difficult to wash or remove soap from it. Our client slipped and fell on the way up the hill and injured himself severely. The surface actually needed a friction compound or friction-based paint, which would offer good footing. The station’s composition and design figured heavily in the settlement. Close-up photographs of the grounds and aerial photographs played an important role.
Parking lots are notorious for concrete tire guards, and people trip over these all the time. In and of themselves, they are not a hazard, but their locaútion can be, as can their state of repair. Sometimes, a case can be made using these factors, or if the rebar used to secure them to the parking lot, is either hanging out or creating an additional hazard due to the state of disrepair.
Areas around which large numúbers of people congregate, such as bus stops or train stations, have to be carefully guarded for tripping and slipping hazards. If the attorney reacts quickly to a call from a client, photographs of the problems in these areas can be made sealing the liability. If you are fortunate enúough to find an existing problem after a client has been injured, photograph it from as many angles as possible. Photograph it with a wide-angle lens to show its full perspective of location, measure it with a tape measure, and make the photograph with the tape in the picture to show perspective.
Illustrating the necessity to move quickly, our office received a call from the daughter of a prospective client, who was in the hospital with a broken leg and a broken arm after having slipped and fallen at a bus stop. Upon meeting her at the hospital, it was determined that the condition might still exist. The transit authority had just black-topped the area of this bus stop and, to outline the location, had used surveyors’ wooden stakes, some of which they hadn’t removed. When our client got off of the bus, she tripped over a 2-inch stake in the actual black-top. There is no way that she could have known anything like that would be there.
The daughter and I photoúgraphed the stakes, showing them from all different angles, and their height above the ground by using a tape measure adjacent to the stakes. These photographs were packed away in the file, and as the case progressed, it became necessary to file suit. The first thing the transit authority did was deny the stakes were ever there. If it hadn’t been for these photographs, that would have been their primary defense, and they never would have paid.
Sidewalks can be extremely deceptive. They can be uneven, causúing trip points; roots can grow into them; they break and become unlevel, and in general, they can be extremely dangerous if they are not maintained properly. Many instituútions, such as schools and colleges, do not really care about the conditions of the sidewalks once they pour them and put them down. Many sidewalks are from 20 to 50 years old and are split in a hundred different pieces. They may not cause a problem during the daytime, if the students are careful. But at night, anyone unfamiliar with the campus could have a serious probúlem. In addition, the light must be very good around entrances and exits to buildings and on sidewalks.
The problem is that with the beginning of each term in a college, the students use different facilities and there is a certain amount of unfamilúiarity. If the entrances, exits, and sideúwalks are not properly lit, serious accidents may result. Other things clients may trip and fall over are the gratings popular 10 or 15 years ago in public buildings. Positioned at the entrances, they cover holes and were intended to wipe your feet on before entering the building. High heels have gotten stuck in those things and people have been thrown n their faces. These gratings are a hazard, and there are not many enúgineers who will say they are not.
Slip-and-falls and trip-and-falls around homes can be some of the most serious, but easiest to document. Examples are obstructions to pathúways, traps and other obstacles that could injure people cutting through the yard.
Inside the house, many accidents occur as a result of slipping and falling on water or other substances on the floor. Or, as in one case my law firm handled, a non-rubber-backed throw rug on a polished wood floor. The client was coming out of a kitchen into a hallway, stepped on the rug, and it came out from underneath her, causúing her to fall and break her hip. In a case such as this, the floor and hallway should be photographed, and measureúments of the distance or width of the hallway should be taken. If the individúual is coming out of a room, there is more of a chance of the rug coming out from underneath if slipperiness exists. There has been quite a bit of products liability litigation based on the fact that these non-rubber-backed throw rugs are inherently dangerous.
Other things to notice are failure to properly maintain steps or pathúways, or whether slick surfaces are not taken care of.
The biggest problem in mobile home parks are the temporary stairúways used for access. As they age, these homemade stairs, often made of untreated lumber, rot away. The investigator can really see some terrible stairs on rented trailers. Photograph these stairs and railings from all angles, using a wide-angle lens to photograph the entire area. Close-ups should be taken showing the deterioraútion of the wood. Pay attention to the railings remembering if the stairs are over a certain height they must have hand rails.
About The Author
Click Here Foir A Bio On Mr. Harbert
Copyright; 2003, James W. Harbert CLI, FCI
All rights reserved.