Snow and ice season is upon us. Thus, a discussion about “slip- and-fall” cases might be helpful. Many people contact lawyers to report that they slipped and fell— in a parking lot, on the steps of a business, or a city sidewalk—and got hurt.
What some folks are not aware of is that the owner of the premises is not automatically responsible. That person must prove that the owner failed to use “reasonable care” to keep the area safe. “Reasonable care” means care that a reasonable person would use to prevent harm to people using the property.
The injured person has to prove, first, that the cause of the fall was something the owner did or failed to do, which caused the dangerous condition—in this case ice. Even before that he or she has to find out who was responsible for creating or failing to remove the condition. In most cases involving snow or ice, the owner has hired a contractor to plow and sand, and, because that person or company is an “independent contractor,” the owner is not necessarily responsible for their conduct, if it was a reputable company that the owner relied on to keep the property safe.
Although the plow company is potentially responsible, the legislature recently passed laws giving such companies immunity if they become certified in “best management practices for winter road, parking lot, and sidewalk maintenance adopted by the department of transportation and the department of environmental services.” That law requires them to keep written records, which “include the type of de-icing materials used, the rate or quantity of deicing materials used, the dates of treatment, and the weather conditions for each event requiring de-icing.”
Unfortunately, the primary purpose of these regulations is to protect the environment—a good goal, but not always consistent with keeping walking areas safe for users. If you’ve been injured from falling on an icy walkway, you or your lawyer will want to find out if it was maintained by a certified plow contractor. If so, unless you can prove it acted with “gross negligence,” it would be immune from suit.
Government agencies, including the state, towns, and school districts are immune from lawsuits for injuries caused by falls on ice, unless the injured person proves “gross negligence.”
What are the factors that an insurance company, judge, or jury looks at to decide whether the person or company responsible for the icy condition acted “reasonably”? You first have to prove that the condition actually existed. This is often a problem when the person who fell does not immediately report it, and there are no eyewitnesses or videos.
The next factor is notice. Can you prove that the person or company knew or should have known the condition was there for a long enough time to allow them to remedy it? To prove this a lawyer needs evidence such as complaints by others about the condition, weather reports showing that there had been precipitation, videos, witnesses corroborating the condition, or records or testimony from maintenance people that the condition was removed or fixed after the incident.
It is sometimes impossible for even the most careful maintenance person to prevent snow and ice from accumulating or to remove it quickly enough to prevent a fall. But with many businesses and homeowners using security cameras, it is easier than it used to be to prove what the condition of a walkway was. If you are considering a lawsuit, you or your lawyer should immediately check with the businesses or neighbors with a view of the fall’s location to see if there is any surveillance video.
Another consideration that makes “slip-and-fall” cases hard to win is the legal principle “comparative negligence.” This holds that every person has an obligation to use reasonable care for their own safety. If the landowner or maintenance company proves that the injured person’s fall was caused by his or her own negligence, and a jury finds that the injured person, or plaintiff, was 50% or more responsible for the injury, that person gets nothing— even if the person or company which was sued was also at fault.
If the plaintiff is found to be 49% or less responsible, he or she can still recover, but the amount of money awarded is reduced by that percent. If you have such a lawsuit, you can expect detailed questioning about your footwear, whether you were impaired by any substance, whether you were in a hurry, etc. And, most importantly, what caused you to fall. A surprising number of people (who haven’t been prepared by their lawyer) answer, “I don’t know.”
Whenever I am asked to take a “slip-and-fall” case, I look carefully at the medical records from the ambulance company, emergency department, and first doctor visit to see what the patient said about the cause of the fall.
As we go outside this winter, remember to be observant of the places you are walking, and use care. If you should fall and get hurt, report your injury as soon as possible, gather information about witnesses, take photographs or vidco, and truthfully report what happened to anyone you tell about it.