Trip and Fall and Slip and Fall Lawyers Explain the Law
I was asked this week to review three cases for two lawyers and they make good models for an attempt at highlighting some of the key differences between a slip and fall and a trip and fall case in Georgia.
You always begin at the beginning and to understand fall cases in Georgia, we are usually talking about the law of premises liability. Injury law is all about duties and failures to leave up to duties (breach). The logic behind legally blaming a landlord, store owner or the like is that they know their property better than you do and can warn, repair or clean up the problem if they are responsible. When they know about the problem, have the time to do something and fail to do it, you have the WHY of legal responsibility. Lawyers refer to this as Duty and Breach; the first two components of legal liability. Now, let’s get more specific.
Trip and Fall Injuries: Usually a Static Defect
A lawyer will sometimes slip into legalese and tell the client about a static defect case. What is that? Basically it just means something that is a long time(as opposed to transitory and soon to disappear hazard). Ice and spilled food and drinks are transitory, broken concrete is a static defect.
One case involved broken concrete at the top of apartment complex steps. The broken concrete had obviously been there for a long time. So looking to the rules above, the danger is broken concrete, the apartment would have known about it and there is something they can do about it. For the time being, one could say duty and breach are likely to get to a jury (as opposed to being thrown out by the Judge on Summary Judgment which is like being disqualified because you never get to race)
The situation changes when there are other facts. The status of the injured person is a big deal. Is the victim a tenant of the apartment or a guest? Had they walked over the hazard without falling before? Did they walk towards it knowing it was there? Was there another way for them to go that was safer? These are all the factual background of some key premises defenses.
1. Open and Obvious: Is the defect so obvious that only a bonehead would fail to avoid it? If so, plaintiff can lose.
2. Prior Traverse: The victim had successfully walked over the hazard before.
3. Assumption of the risk: The victim knew of the danger and still chose to walk there.
The idea is, these dangers are permanent and therefore:
1. They are easier in the sense that the land owner usually should have had enough time to learn of and correct the danger.
2. They can be harder if the victim lives in the are and can fall into the equal knowledge trap.
Remember if the victim knew about the danger, they are not an innocent victim and the law usually won’t help them.
Slip and Fall: Foreign Substance
Sure there are lots of slip and fall cases where people slip due to moss or mildew, paint without grit in it etc. For today’s discussion though, we will focus on falls that happen because of foods and fluids. These are temporary hazards and it is therefore a challenge to prove that the landowner or store manager had time to find out about the hazard.
1. Who made the spill? If its the store that made it (leaking refrigerator for instance) then the case is easier to prove. There is actual negligence by the store and they had time to discover.
2. In the situation where a customer made the spill (as we see so often in grocery store cases) the issue is TIME.
3. How long was the substance there? The victim has to show that the spill was there long enough for the store to have discovered it. How do you do that? Surveillance is great place to start. The other accepted method is to use the store’s own cleaning logs (or lack of cleaning logs) to show that they did not have a regular inspection routine.
4. The appellate courts have held that with store that sell liquids and fluids, they need to have some kind of organized cleaning and inspection schedule. The lack of the schedule allows the victim to get to trial.
5. Remember the law is aimed at good public policy. We want clean slip free isles. Lets encourage store owners to have a good routine.
We will get back to these issues in later posts but I hope that sheds some light on the complex world of fall cases.