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.
It’s the classic “slip and fall case,” a claim that the store was negligent in allowing a dangerous condition to exist that caused the slip.
Until recently, a plaintiff could prevail in a slip and fall case only if a store’s employee caused the dangerous condition, 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. That was 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. And for the most part, 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 claims examiners, resulting in a lack of preparation that could cause their client to fall victim to both large settlements and bad publicity.
A Wakeup Call
The law began to shift in April 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.
But it was a wakeup call some attorneys never heard. Even now, more than three years after the change in the slip and fall law, many claims examiners and defense attorneys remain complacent and reliant on old proofs.
Here’s a perfect example. In July 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 day at the office for the attorney of this major supermarket chain. He seemed to be rather callous about the case, trying it as he would all others without considering the variables inherent to the particular situation, such as: a very sympathetic plaintiff — a 78-year-old woman trying to raise three grandchildren on her own; a very tangible injury – a fractured knee; and the fact that the trial was held on Dec. 7, 2007, just three weeks before Christmas. Those variables added up to a legal perfect storm the attorney overlooked.
To make matters worse for the defendant, the defense attorney and claims examiner never factored 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. 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 the defendants offer $10,000 – which the plaintiff likely would have accepted. Instead, the defense attorney and the claims 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 more than $55,500 when added costs and interest were tacked on.
Avoid the Trap
Now that you know how a major employer got into this position, what can be done to assure that other businesses don’t also fall into the same trap? There are several steps that can be taken:
- Review company polices and procedures.
- Know the plaintiff.
- Think out of the box when it comes to risk management.
- Finally, listen to the attorney’s advice.
By following these four simple steps during a slip and fall lawsuit, employers can take the fate of their business out of the hands of a potentially sympathetic jury — and any decision that might come forth for a potentially damaging settlement.