Georgia Slip and Fall CLE

Slip and Fall Cases Come in All Shapes and Sizes

Quick Things to Know

SLIP AND FALL CASES ARE THROWN OUT ON SUMMARY JUDGMENT, BY DIRECTED VERDICT AND THROUGH DEFENSE VERDICTS ALL THE TIME

NO ONE WILL ADMIT IT, BECAUSE IT IS EMBARRASSING TO LOSE

 

Quick Points

  • Static defect cases, curb paint, types of walking surface, stair risers, railings, visibility etc; YOU WILL SPEND $10-15,000 ON AN EXPERT AND OVER 100 HOURS ON BRIEFS. It had better be a bad injury
  • Slip and trip in a rented property. Be very afraidBig box store under 10k medical cases can be modestly profitable if the video does not undo the case.
  • Leaking equipment cases(freezer, cooler, garden section) are better because of active common negligence.
  • Bathroom slip and falls are a total pain in the butt.
  • Rainy day cases are a disaster. Proceed with caution.
  • Avoid medical lien care in slip and fall cases, the numbers are rarely able to support the costs, unlike commercial vehicle cases.
  • If your client ever admits that they don’t know what they fell on, the case is over. Go home
  • File suit in magistrate court to get a copy of the video tape they say kills your case. Send a notice to produce.
  • Be careful of the mall slip and fall janitor versus the property fight
  • The insurer is the biggest determiner of whether you can get an easy settlement pre-suit before the defense lawyer gets to justify running up the billing. Know the good companies to work with and the nightmares.

 

Knowledge is Power

Remember that all premises liability cases are predicated on one simple issue; the issue of knowledge. You have to be able to prove that whatever caused the client to fall was or should have been known to the Defendant and unknown to the Plaintiff. If you cannot show that, there is no case.

You Do Hourly Work

Slip and fall cases will almost always be litigated, have more than 4 depositions and have motions for summary judgment filed. You are looking at over 50 hours of work IF there are no experts. With an expert it goes to over 100 hours of work.

If you get a $20,000 fee on an expert case you got paid $200 and hour, without paralegal time.

Defense Firms Don’t Care about Costs

The National Floor Safety Institute estimates that the average insurance defense firm charges $50,000 to defend the case through trial (I think that is a low estimate) The average judgment awarded in slip and fall cases that go to trial is $100,000.

Basics of Slip and Fall Law

When a premises liability cause of action is based on a “trip and fall” or “slip and fall” claim—and the lion’s share of premises liability cases are—we have refined this general test down to two specific elements. The plaintiff must plead and prove that: (1) the defendant had actual or constructive knowledge of the hazard; and (2) the plaintiff, despite exercising ordinary care for his or her own personal safety, lacked knowledge of the hazard due to the defendant’s actions or to conditions under the defendant’s control.1

(Citations omitted.) American Multi–Cinema, Inc. v. Brown, 285 Ga. 442, 444(2), 679 S.E.2d 25 (2009).

 

  1. Prove the owner or occupier knew or should have known of the hazard
  2. Everyone knows it is a jury issue of whether the Plaintiff should have noticed so get through summary judgment (Unless your client screws up in a recorded statement or deposition)
  3. Know the distinctions between
    1. Static and “spill” hazards
    2. Trespassers, Licensees and Invitees
    3. Type of Premises as it relates to the duty of inspection. Difference between a grocery store, car repair shop, shopping mall and a parking lot.
    4. Know the Sudden Death facts.

Static Defect Cases

We have a house rule for static defects. If it does not pass the “what the hell was the property owner thinking” test, we turn it down. There are technical violations galore out there, but just because it gets through summary judgment, does not make it a good jury case.

Proof of Owner’s Superior Knowledge

Accordingly, to recover under OCGA § 51–3–1, a plaintiff has the burden of proving: (1) that, prior to the slip and fall, the owner had actual knowledge of the hazard which caused the slip and fall, or that, under the circumstances, the owner was chargeable with constructive knowledge of the hazard, and (2) that, despite the exercise of ordinary care, the plaintiff lacked knowledge of the hazard prior to the slip and fall. American Multi–Cinema , 285 Ga. at 444 (2), 679 S.E.2d 25 ; Robinson , 268 Ga. at 736 (1), 493 S.E.2d 403 ; Alterman Foods , 246 Ga. at 622–623, 272 S.E.2d 327. A plaintiff can prove the owner’s constructive knowledge of the hazard

TWO WAYS TO PROVE CONSTRUCTIVE KNOWLEDGE

A plaintiff can prove the owner’s constructive knowledge of the hazard by showing: (1) that an employee of the owner was in the immediate area of the hazard and could have easily seen the hazard and removed it prior to the slip and fall, or (2) that the hazard had existed on the premises for a sufficient length of time that it should have been discovered and removed if the owner had exercised ordinary care to inspect the premises to keep it safe. Id. at 622–623, 272 S.E.2d 327 ; Banks v. Colonial Stores , 117 Ga.App. 581, 584–585 (1), 161 S.E.2d N 366 (1968)

NO DUTY TO CONSTANTLY PATROL

In the absence of facts showing that the premises are unusually dangerous, an owner has no duty to continuously patrol the premises to discover and remove possible hazards. Al t erman Foods , 246 Ga. at 622, 272 S.E.2d 327. It follows that an owner normally “is permitted a reasonable time to exercise care in inspecting the premises” (Id.) and “a reasonable time after notice of a hazardous condition to exercise care in correcting such condition.” Pickering Corp. v. Goodwin , 243 Ga.App. 831, 832, 534 S.E.2d 518 (2000)

15-20  MINUTE PATROLS ARE SUMMARY JUDGMENT

Evidence showed that Food Depot inspected the area of the store where Youngblood slipped and fell about 20 minutes prior to the slip and fall, and that, at that time, no spill or other hazard was present. Where the owner performs an inspection showing that no hazard existed in an area within a brief period prior to an invitee’s injury as a result of a hazard occurring in the same area, this is sufficient to establish, as a matter of law, that the owner exercised ordinary care under OCGA § 51–3–1 to inspect the premises to keep it safe, and to show that the owner had no constructive knowledge of the hazard.Matthews v. The Varsity, Inc. , 248 Ga.App. 512, 514 (2), 546 S.E.2d 878 (2001) (inspection five minutes prior to incident found adequate as matter of law).

Hourly Inspection Not Enough at Grocery Store

Walmart Stores E. L. P. v. Benson, 343 Ga.App. 74, 806 S.E.2d 25 (Ga. App., 2017)

But pretermitting whether the printout and Kempton’s affidavit were sufficient to support the grant of summary judgment, this Court has found that questions of fact exist based on reasonableness of an inspection procedures even if the inspection occurred as little as 15 minutes to 20 minutes prior to a fall.6 “The nature of a supermarket’s … business creates conditions which cause slip and falls to occur with some frequency. Under those circumstances, we have held that premises owners have a duty to inspect with greater frequency.”7 Thus, in this case, the trial court erred by finding as a matter of law that All American’s hourly inspection procedure shielded it from liability, and a jury question exists as to whether All American’s procedure was reasonable.8 Accordingly, we reverse the trial court’s grant of summary judgment to All American.

KROGER DOES NOT HAVE SWEEP LOGS

Blocker v. Walmart Stores, Inc., 287 Ga.App. 588, 589–590, 651 S.E.2d 845 (2007). However, “to withstand a motion for summary judgment, the plaintiff need not show how long the hazard had been present unless the owner has first demonstrated its inspection procedures.” (Punctuation and citations omitted.) Benefield v. Tominich, 308 Ga.App. 605, 609 (1),708 S.E.2d 563 (2011).

 

DIFFERENT BUSINESSES, DIFFERENT REQUIREMENTS

Moreover [t]he length of time the substance must remain on the floor before the owner should have discovered it and what constitutes a reasonable inspection procedure vary with each case, depending on the nature of the business, the size of the store, the number of customers, the nature of the dangerous condition, and the store’s location.

Davis v. Bruno’s Supermarkets, 263 Ga.App. 147, 150(2), 587 S.E.2d 279 (2003). Augusta Country Club, 280 Ga.App. at 653(1), 634 S.E.2d 812.

ONCE THE HAVE ACTUAL KNOWLEDGE, THEY HAVE TIME TO CLEAN IT UP

An owner is normally permitted “a reasonable time after notice of a hazardous condition to exercise care in correcting such condition.” Pickering Corp. , 243 Ga.App. at 832, 534 S.E.2d 518.

Exactly what constitutes “ordinary care” varies with the circumstances and the magnitude of the danger to be guarded against. Since it is impossible to prescribe definite rules in advance for every combination of circumstances which may arise, the details of the standard must be filled in each particular case. But, to be negligent, the conduct must be unreasonable in light of the recognizable risk of harm. The particular standard of care to be applied and whether the owner breached that standard are usually issues to be decided by a jury. However, these issues may be decided by the court in plain and palpable cases where reasonable minds cannot differ as to the conclusion to be reached.

 

Specific Hazard Exceptions  Walmart Stores E. L. P. v. Benson, 343 Ga.App. 74, 806 S.E.2d 25 (Ga. App., 2017)

As we have said, “[t]he nature of a supermarket’s … business creates conditions which cause slip and falls to occur with some frequency. Under those circumstances, we have held that premises owners have a duty to inspect with greater frequency.” (Citation and punctuation omitted.) Food Lion, LLC v. Walker, 290 Ga.App. at 576 (1), 660 S.E.2d 426. And “[w]hen a proprietor has notice of the risk of a particular hazard, we have found that a jury question arises as to the reasonableness of a store’s inspection procedure even when an inspection was performed 15 minutes before the plaintiff’s fall.” Id. There is, however, no evidence that the alleged hazard was associated with any of the products sold on thepremises

See Food Lion, supra (where plaintiff slipped on a mixture of water and chicken blood, and defendant supermarket knew its fresh chicken was on sale and that it inevitably dripped a mixture of blood and water on the floor, an issue of material fact remained as to whether the supermarket’s inspection procedures were reasonable notwithstanding that a manager had come through the area where plaintiff fell 15 to 20 minutes beforehand and saw no wetness on the floor); Shepard v. Winn Dixie Stores, 241 Ga.App. 746, 748–749 (1), 527 S.E.2d 36 (1999) (inspection may be required more frequently than every 30 minutes “[w]hen a supermarket fills a table with crushed ice and produce, knowing that customers will remove the produce and likely cause at least some ice to fall on the floor[.]”).

Proving Knowledge

  1. VIDEO, VIDEO, VIDEO. Ask lots of questions of the adjuster. Many a lie and exaggeration
  2. The spoliation letter needs to specify that you are request 24 hours worth of prior tapes to show how long the spill had been on the floor. This should be a separate sentence.
  3. Modify if a static defect. Ask for a week and specify that the tapes are needed to show whether other shoppers had trouble. (double edged sword)
  4. Spend hours on the inspection and floor sweep logs.
  5. Depositions of the managers, seek ex employees.
  6. Internet research and the GHOST STEP. Apartment finder reviews, google reviews are key

Sudden Death  

  1. Been Down this Road Before; the dreaded prior traverse. If it can be shown that your client has successfully walked over, up, down whatever that area before, then the client has equal knowledge of the problem. Guaranteed MSJ to fight.

 

  1. I Don’t Know What I Fell On.  It’s over, don’t waste another minute on the phone.        You cannot repair honest statements about having no idea what they fell on. Move on
  2. Master of the House:

“I am the master of my fate: I am the captain of my soul” W. R. Henley “Invictus” Cases where the client lives in the house or apartment they want to sue and has complained of the problem before. Summary Judgment City.  There are rare situations where they will get through summary judgment including the necessity exception, but they are dangerous cases and very time consuming.

Client Likey and Damages Go Under a Magnifying Glass  

Juries are super judgmental about slip and fall cases.

If your client is not likeable, you will lose.

If your client’s medical care is maybe related, you will lose. Beware the knee surgery with pre-existing case.

Vetting the Hell out of the Case

  1. With an MVA, you can succeed even when you sign up an MVA and it turns out to have dog hair on it. If liability is decent and pd is decent, you can make something fly.
  2. Slip and Falls are different because carriers will pay litigation expenses if there is a shot at summary judgment.
  3. When it doubt, dump it out.

Cases

You can survive summary judgment using video, photos, or any other evidence other than your client’s own testimony to prove causation in a premises liability case. Berson v. American Golf Corp., 265 Ga. App. 772, 595 S.E.2d 622 (2004).   Video evidence is more than sufficient to create a jury issue on that topic, as a reasonable inference of causation is all that is required. J.H. Harvey Co. v. Reddick, 240 Ga. App. 466, 469, 522 S.E.2d 749 (1999) (en banc); Williams v. EMRO Marketing Co., 229 Ga.App. 468, 472(2), 494 S.E.2d 218 (1997).

SIX FLAGS CASE DOES NOT CHANGE NOT ASSAULT PREMISES CASES

Boyd v. Big Lots Stores, Inc. (Ga. App., July 2018)

Unlike Martin, the only dangerous condition which caused Boyd’s slip and fall was the static slippery condition in the parking lot, a common area owned and maintained by the shopping center owner/lessor, which was not part of the Big Lots store premises or approaches. There was no evidence of any dangerous condition existing on the Big Lots store premises or approaches. Accordingly, there was no basis to conclude that, while Boyd was on the Big Lots store premises or approaches, Big Lots breached a duty of care under OCGA § 51-3-1 to keep those areas safe that was a proximate cause of Boyd’s subsequent slip and fall in the parking lot. It follows that the rationale adopted in Martin, supra, for imposing liability under OCGA § 51-3-1 for injuries incurred by a former invitee off the premises and approaches has no application in the present case. The trial court correctly granted summary judgment in favor of Big Lots on Boyd’s claim under OCGA § 51-3-1. OCGA § 9-11-56.

Hotel Tub Slip and Falls

New Rule

Georgia Department of Public Health regarding Tourist Accommodations, which states that “[a]nti-slip tubs slip strips, appliques, or slip-proof mats shall be provided in each bathing facility and shall be kept clean and in good repair.” Ga. Comp. R. & r. 511-6-2-.08 (10)

Ice

St. Joseph’s Hosp. of Atlanta, Inc. v. Hall, 344 Ga.App. 1, 806 S.E.2d 669 (Ga. App., 2017)

(a) Superior knowledge. Although St. Joseph’s and Hall knew that an ice storm had recently occurred, “knowledge of the generally prevailing hazardous conditions is not sufficient to establish actual or constructive knowledge by the hospital or [Hall] of the specific invisible ice hazard on the upper deck which caused the slip and fall.” Columbus Doctors Hosp., Inc. v. Thompson, 224 Ga. App. 682, 683, 482 S.E.2d 705 (1997). There is also no evidence that St. Joseph’s “had actual knowledge of the invisible ice hazard on the upper deck, despite evidence that the hospital conducted regular inspections of the premises.” Id. St. Joseph’s general knowledge that melted ice or snow in the parking deck can re-freeze if temperatures drop and that black ice is slippery does not equate to knowledge of the specific ice hazard that caused Hall to fall. Although visible snow and ice remained in areas in and around the parking deck, the evidence does not show that either Hall or St. Joseph’s had actual knowledge of the specific invisible ice hazard that caused Hall’s fall.

In Petrosky, this Court held that the condominium association had constructive knowledge of the hazardous icy conditions encountered by Petrosky in the parking lot because the association lacked any inspection procedure and did not inspect the premiseson the date of Petrosky’s fall. Id. at 357 (1)(a), 643 S.E.2d 855.