Slip and Fall

In a slip and fall matter, it is important to know the substance or hazard on the property that caused the fall. If you do not know, it is very likely your case will be unsuccessful.

Hazards on the premises that cause slip and falls usually breakdown into two categories: static conditions or foreign substances. A static condition is something that is meant to be on the property, such as steps, curbs, tiles, ramps, railings, etc. A foreign substance is something that is not meant to be on the property and should be removed, such as liquids, grease spills, food, rugs, mats, debris, etc. Which hazard causes your slip and fall will determine how you proceed with your case.

Examples of Slip and Fall Hazards include:

• Unmarked curb or drop-down
• Broken or cracked sidewalks and pavement
• Unsecured mats and rugs
• Uneven tiles, floors
• Slippery, wet, oily floors
• Broken or uneven stair treads
• Missing or broken railings
• Building code violations
• Loose cables and wires
• Debris and clutter
• Over-crowded aisles

Hiring an experienced lawyer is essential in slip and fall cases because if the appropriate steps are not taken on your behalf, you may never be able to reach a successful resolution of your claim.

It is important to hire an experienced attorney to navigate the complexities of a slip and fall case. Not only are there specific legal concepts that must be established, it is important to hire someone who has dealt with requesting the types of records necessary to demonstrate knowledge of the hazard, such as cleaning logs, janitorial schedules and other maintenance records. It is also important to hire an attorney who has experience dealing with insurance carriers and some understanding of industrial cleaning methods in public areas. This knowledge is established over time and you will want to hire an attorney from an established firm that has dealt with these types of cases multiple times over.

As mentioned above, it is important to know the hazard that caused your slip and fall, or your case will not be able to survive. The duty owed to a visitor or patron changes depending on the hazard type. Distinguishing between whether the hazard that caused your injury is a foreign substance or static defect determines the standard owed to prevent against unwanted injury. A static defect is a permanent or structural defect, such as steps, curbs, carpets, sidewalks, drains or walking paths. A static defect may require that you look to building codes or technical violations to demonstrate that the condition was unsafe.

A foreign substance is a condition on the property that should not be present and must be cleaned up or removed, such as liquids, debris, rolled-up mats, banana peels, etc. A foreign substance requires that you determine the defendant’s knowledge of the condition and whether there was a reasonable time to clean the foreign substance up or fix the problem. As a plaintiff, you will have to show that the defendant’s actions were unreasonable.

An important factor in a slip and fall case is knowledge. The distinction is between the plaintiff’s knowledge of the hazard and the possessor of property’s knowledge of the same. A key to a successful slip and fall claim is demonstrating the property possessor’s (i.e., the owner or occupier’s) superior knowledge of the hazard. To establish superior knowledge, the plaintiff must basically show two things: (1) the hazard was known by the defendant, and (2) the hazard was not known by the plaintiff. It is the fact that the plaintiff was unaware of the hazard while the land possessor knew of it that makes it “superior” knowledge. In other words, the property possessor knew something the plaintiff did not know and failed to remedy the problem within a reasonable time.

To demonstrate a property possessor’s knowledge, the plaintiff must demonstrate that the possessor of the property knew or should have known of the hazard that caused the fall. In other words, a plaintiff can establish a defendant’s knowledge with evidence of active knowledge of the hazard or constructive knowledge. Active knowledge is where the property possessor saw the defect or caused the defect and failed to take reasonable steps within a reasonable amount of time after becoming aware of the defect to remedy the hazardous condition. Constructive knowledge is where the plaintiff can demonstrate that the hazardous condition could have been discovered and removed if the property possessor had exercised ordinary care in inspecting the premises.

To succeed in a slip and fall, a plaintiff must establish the possessor’s superior knowledge of the hazard, otherwise the plaintiff’s case will be unsuccessful.

The best evidence to demonstrate a defendant’s superior knowledge is by getting a video showing the hazardous condition prior to and at the time of the incident. Other evidence that can demonstrate superior knowledge are maintenance and cleaning inspection logs. Additionally, any prior complaints of slipping or falling can demonstrate a property possessor’s awareness of the hazardous condition. Online reviews of the premises, such as ones mentioning slipping, can also demonstrate superior knowledge.

A plaintiff may not recover for a slip and fall if the plaintiff had equal knowledge of the hazard. Even if the hazard that caused the plaintiff’s slip and fall is something within the owner or occupier’s control that the owner/occupier had superior knowledge of and failed to remedy, a plaintiff may not recover if he was equally aware of the hazard prior to his injury. In other words, if the plaintiff has successfully encountered and navigated around a dangerous static condition in the past prior to being injured by the same dangerous static condition, the plaintiff is presumed to have equal knowledge of the hazard. Perkins v. Val D’Aosta Co., 305 Ga. App. 126, 699 S.E.2d 380 (2010). As an example, a tenant cannot recover against its apartment complex’s landlord or property manager for failing to fix a pothole in the lawn that caused a tenant to break his ankle if the tenant was equally aware of the pothole prior to his injury and had previously negotiated it before. The only way to overcome the equal knowledge rule would be if you can demonstrate that something about the hazard changed since the last time the plaintiff encountered it or that the plaintiff’s view of the hazardous condition somehow was different on each occasion.

A person is generally required to exercise ordinary diligence to protect themselves against injury. O.C.G.A. § 51-1-2. Thus, even if a property possessor is negligent for creating a hazardous condition or defect, an injured party still has the duty to exercise ordinary care to avoid the consequences of defendant’s conduct. O.C.G.A. § 51-11-7. Where a hazard is “open and obvious” or “in plain sight,” an injured party is required to exercise the same standard of care as reasonably prudent person in the situation to avoid injury. If the injury was unavoidable, despite the hazard being found to be in plain sight, a plaintiff can be found to have contributed to his injuries.

Georgia applies a modified comparative negligence standard, which means that if the injured party is found to be 50% or more at fault for the injuries he sustained, he is not entitled to any recovery of damages. O.C.G.A. § 51-12-33. To illustrate, if a hazard that caused a plaintiff’s injury is found to be “open and obvious” and the jury finds the plaintiff to be 51% at fault, the plaintiff will recover nothing for his injuries and will be required to cover the costs of medical treatment he incurred himself. Alternatively, if the hazard is found to be “open and obvious” but the jury finds the plaintiff to be only 20% at fault, the plaintiff’s damages will be reduced by his percentage of fault. In other words, say the plaintiff’s total awarded recovery is $100,000 and he is found 20% at fault, the plaintiff can only recover $80,000.

Where a slip and fall is due to another person’s active negligence, the theory of ordinary negligence applies, meaning an injured party only needs to establish duty, breach, causation and damages. For example, active negligence would be where an employee creates the hazard that caused the plaintiff to slip and fall, such as dropping liquid on the ground. Where the hazard that caused the injury is due to active negligence, the defendant’s lack of superior knowledge of the hazard or the plaintiff’s equal knowledge of the hazard are not a basis for summary judgment.

Slip and falls can cause serious injury, even death. A person who suffers a slip and fall can sustain bone fractures, soft tissue damage, spinal cord injuries, head trauma, paralysis and wrongful death. In fact, falls are the most common cause of traumatic brain injuries, according to the Centers for Disease Control and Prevention (CDC). Thus, slip and fall cases must be taken seriously, even if they can be difficult to bring.

An injury resulting from a slip and fall for someone over the age of 65 can be especially devasting. According to the Centers for Disease Control and Prevention (CDC), one out of every five falls for someone over the age of 65 causes a serious injury, such as broken bones or a head injury and over 800,000 patients are hospitalized every year because of a fall injury. Total medical costs for falls in 2015 exceeded $50 billion. Such fall injuries are especially impactful on an older person’s life because it can make it hard for the person to get around, conduct daily activities, or live independently. Moreover, following a fall, an older adult usually starts limiting activities out fear of having to experience a fall injury again and this can result in an older adult having a diminished quality of life.

Not only can falls in older people cause severe injuries, they can also cause death. Based on CDC data, fall death rates for older adults in the United States have increased 30% from 2007 to 2016. At this rate, the CDC predicts that 7 fall deaths will occur every hour by 2030. Of course, not all falls suffered by older adults are due to slip and falls, but it does demonstrate the higher risk that adults over the age of 65 face should they suffer a slip and fall.

Following a slip and fall it is important that you contact an experienced attorney to help present and develop your case. Here are some things a lawyer can do:

• A lawyer can demand a copy of the policy limits to understand what insurance is available to compensate you for your injuries.
• A lawyer can send out requests to preserve evidence such as video surveillance footage, internal investigation reports, and eyewitness statements.
• A lawyer can request copies of your medical records demonstrating the injuries sustained and treatment received because of the slip and fall.
• A lawyer can hire an expert to inspect and investigate the area where the slip and fall occurred to understand the hazard that caused you to fall.
• A lawyer can send a written demand outlining the property owner’s liability and the injured party’s damages incurred and demand compensation to resolve your case pre-suit
• A lawyer can file suit and bring your case to trial should pre-suit negotiations not materialize

Following a slip and fall, it is important that you take certain steps to help document the injuries and pain and suffering you sustained following the accident. Here are some best practices:

• If you are able, be sure to document the scene where the slip and fall occurred. Make sure to take either photos or videos of the hazard that caused the fall and document the area where the accident occurred.
• File an incident report. Make sure to report to the property owner or occupier what occurred and identify what caused you to slip and fall. Also request a copy of the incident report for your own records.
• Identify any witnesses that saw the incident or were in the vicinity shortly before or after the slip and fall occurred. Take down the names and contact information of anyone who may have relevant information about what happened.
• Seek medical attention following a slip and fall. Make sure to clearly inform your doctors of what caused you to sustain your injuries and describe your pain symptoms in detail following the accident.
• Document the treatment you received following a slip and fall. Be sure to keep copies of the medical bills you receive, the receipts showing cost of prescriptions or any other ancillary costs associated with treating your injuries.
• Keep the shoes and, sometimes, even the clothes you were wearing on the date of your slip and fall. Very often defendants will want to know what you had on at the time of the accident. Make sure to put these to the side and reserve these items as potential evidence that may need to be inspected should you move forward with filing suit.
• Contact an attorney immediately if you suffered a catastrophic or traumatic injury as the result of a slip and fall. Slip and fall cases very often require notice of preservation of evidence, including video surveillance footage, cleaning logs, janitor schedules, and maintenance records. It is important to hire an attorney so they can notify the defending party as soon as possible to preserve these items.

Finch McCranie is a boutique firm that has been handling personal injury cases and catastrophic injuries in Georgia and the southeast for over 50 years. Our team can provide you with the individualized attention that your case needs and that you will be unable to find elsewhere. Our dedicated attorneys work tirelessly to meet the needs of our clients and to get them the best results we can in each and every case. Our loyal staff works hard to make sure all files are up to date and no communication is missed. If you want an individualized experience and to be represented by attorneys who actually care about your case, hire Finch McCranie for your slip and fall matter.