What To Do If You Are In A Slip and Fall Accident
If you have been injured in a slip and fall or trip and fall accident, there are several important things you can do to help your case. Failure to take some of these steps could cause you to lose your case.
Here are the basic steps that you should take if you have been injured in a slip and fall or trip and fall accident:
- TAKE PICTURES OF THE AREA WHERE YOU FELL: It is very important you take a picture of the area where you fell, and of the defect/condition/spill that you fell on. It may have been impossible if you were in pain or fractured something, in which case you should go back and take pictures after you are stable if you are medically able. If not, you should have a friend or family member return to the area and take a picture as soon as possible. Odds are that after a fall the store owner, landlord, or property manager has taken steps to repair the condition, making it more difficult to prove.
- GET THE NAME, TELEPHONE NUMBER & EMAIL OF ANY WITNESSES: Get the name, telephone number, email and address of any witnesses, even if they only saw you after the fall. They may important for establishing the time, place and condition/defect/spill that caused you to fall and injure yourself.
- MAKE/FILE AN INCIDENT REPORT OR ACCIDENT REPORT: Typically, if you were injured at a business, this will have been filled out at the time of the Incident/Accident. If it is no longer the same day as the accident, call an attorney before making a belated report, as it may be more advantageous for you to wait depending on your circumstances (for example, it may be better for your attorney to make a belated report after obtaining critical records and conducting and inspection).
- GO TO THE HOSPITAL OR PCP: If you are injured and still feeling pain, don’t wait to treat. See a doctor right away. Often a client will wait to treat to see if the pain goes away on its own, but this can be a serious mistake. Insurance companies always argue that a person who waits to treat must not have been injured. While untrue, it can work in front of an unsuspecting jury. If you cannot afford a doctor, call us and we will give you a list of doctors that work on a “LIEN” basis. This means that they will treat you and wait to get paid when you settle your case. Make SURE the ER, Hospital or PCP takes down an ACCURATE depiction of your accident. It is often surprising to clients how bad ER and other physicians are at taking an accurate history regarding the incident. Make your statement short, to the point, and broad. Nuance is almost always lost to doctors. For example, “I tripped and fell on stairs”. No need to say more, as the doctors are a likely to misinterpret anything more detailed than that.
- DON’T GIVE A RECORDED STATEMENT: If you make a report or claim to an insurance company, do not give a recorded statement. Insurance adjusters are often very experienced in asking questions that are designed to unwittingly minimize your injuries or pain, only to use it against you later when you realize that what you said wasn’t what you thought the adjuster was asking about. For example, the adjuster might introduce himself: “Hi, how are you today”. Answer, “I’m okay, how about you?” This innocent greeting can be twisted later on by the adjuster who will claim that he asked you how you were, and you said “OK” without any complaints of pain! All the while knowing you never meant your casual introduction to carry such a meaning. Without an attorney, you will be subject to tricks and tactics designed to make you look uninjured, insincere or inaccurate. Wait until you talk with an attorney before giving a recorded statement to any insurance carrier or adjuster. Your attorney will help prepare you for the common tricks used in premises cases, which are many. They may also ask you a complete medical history from the beginning of time, which you will likely fail to remember all pertinent facts without first ordering your past medical records and review with an attorney. For example, adjusters often ask if the client had any prior neck or back pain. Most people, if they suffered a serious spine injury, will deny any prior similar symptoms, only later to find out about a chiropractor they saw 10 years earlier for 3 months that they forgot about, which the adjuster uses with devastating effect against the client later to paint them as a liar.
- CALL AN EXPERIENCED PREMISES LIABILITY ATTORNEY: Both Slip and Falls & Trip and Falls are areas of law called “Premises Liability”, an area of Personal Injury law. Child & Jackson are experienced premises liability attorneys, comprising nearly half of our entire practice. It is very important in premises liability cases to call an attorney as soon as possible after an accident as you may have as little as six (6) months to file a claim [see Public Claims below]. Call us for a free consultation with an experienced trial attorney over the phone or in person.
REAL FACTS & STATISTICS REGARDING THE SERIOUSNESS OF SLIPS, TRIPS & FALLS
Falls represent the leading cause of hospital emergency room visits in the United States (21.3%), with Slips and Falls accounting for over 1 million visits per year (12% of total falls).
- “Falls account for 87% of all fractures among people over the age of 65 and are the second leading cause of spinal cord and brain injury. Id at Pg 1.”
- “Floors and Flooring materials alone contribute directly to more than 2 million fall injuries each year according to the Consumer Product Safety Commission (SPSC). Id at Pg 1.”
- “Fractures are the most serious consequences of falls. For people aged 65-84 years, falls are the second leading cause of injury-related death, for those aged 85 years or older, falls are the leading cause of injury-related death. Id at Pg 1.”
Despite their prevalence, many personal injury attorneys do not take slip and falls because they are bitterly fought by insurance carriers, and may require extensive litigation and advances in expert fees before insurance carriers are willing to make a reasonable settlement offer. They also require extensive attorney expertise to properly litigate, often having a high degree of complexity, often pursued to trial only by attorneys that devote a large part of their practice to premises liability [slip/trip and falls]. In some cases, the insurance carrier will refuse to offer any settlement, requiring trial to resolve the issues, despite the fact it is a solid case. In any slip/trip and fall case, there are several common issues that come up that every potential client should be aware of in order to determine whether they have the evidence needed to bring a viable claim. Here are some of the more common causes of trip and falls, and slip and falls:
TRIP AND FALLS: WHAT DEFECTS ARE RECOGNIZED UNDER THE LAW
In any TRIP and fall case, one of the first issues you need to look for is whether there was any negligence that led to causing your personal injury. Here is a list of common defects or conditions that may lead to potential liability by a landowner, landlord, business operator or owner, maintenance crew, management company, etc.:
Cracks in public and private sidewalks, walkways, ramps, streets, parking lots, stairs, etc., often occur due to neglect from landowners or property managers. Some typical causes of cracks or defects are tree roots, water erosion, or simply crumbling due to age. Typically, you need above ½” [half an inch] high vertical rise to have a viable claim on any sidewalk/walkway crack. Courts usually deem cracks under half an inch to be “de minimis” and not actionable for filing a personal injury claim, although there are numerous other potential considerations in any given case. Craggy depressions due to erosion can also make a viable claim depending on the size and extent of the depression, whether it holds water or moisture (causing ice in cold weather) and whether it is deemed significant enough to be a violation of ASTM Guidelines [American Section the International Association for Testing Materials], NFSI guidelines [National Floor Safety Institute], ANSI Standards [American National Standards Institute], California Building Codes, or ADA [American’s with Disabilities Act]. Typically, these standards require a flat surface free of abrupt changes in elevation that can take pedestrians, customers, the elderly or children unawares, causing injury. Child & Jackson retains quality experts, safety engineers, human factors experts, arborists, licensed contractors, and other experts to determine whether the nature and extent of the crack, defect or condition warrants a violation of industry and government standards. If you believe that you were injured because of a crack in a walkway, give us a call and email us pictures of the crack and we will determine if you have a case.
Where there are ramps, especially ramps made of concrete or asphalt, that have sharp rises or inclines, there should be a painted yellow or orange lines along the rise areas to warn pedestrians of the rise. Without it, concrete and asphalt can blend, making the rise hard to see. Often there were painted markings at some time, but have badly faded and eroded over time, never having been properly repainted. The elderly, disabled, children and even healthy adults can be seriously injured if ramps are not properly painted and marked. The rise of a ramp has to be within certain specifications, and free of cracks, debris and overgrowth. Certain ramps should have railing to help the disabled and elderly. There are specific standards that help determine whether a ramp is unsafe enough to be a violation of ASTM Guidelines, NFSI guidelines, ANSI Standards, California Building Codes, or the ADA. Child & Jackson have litigated numerous ramp cases that caused serious fractures, surgeries, and even amputation resulting from defective ramps. If you believe a ramp was improperly made, or was not properly marked and caused you injury, take photographs of the ramp and email them to us, and we will look at them to determine if you have a case.
Stairs made of concrete or other similar material can blend, causing pedestrians to misstep and fall, causing serious, even fatal, injuries. First and last steps should be marked with a yellow strip or other friction strip to insure solid entry and exit of the stairwell. If there are only one or two steps that are concrete, for example, against a backdrop of concrete, it is even more important, as the concrete blends with certain lighting and can cause a tripping hazard and serious injury. This is particularly important for the elderly, disabled, and children. Stairs may have protruding or retracting nails, broken or loose boards, or overgrowth that cause tripping hazards. Child & Jackson have litigated numerous stair cases involving serious fractures, reconstructive surgeries, and life changing injuries. If you believe stairs contributed to a fall that caused you serious injuries, send us pictures of the stairs and we can ascertain whether you have case.
HAND RAILS / RAILINGS
Railings are required pursuant to local and state building codes for decks and stairs. Often railings are not stable due to age, overuse and improper maintenance. Railings along the stairs must meet with specific building codes and standards, such as height and accessibility requirements, and be in good repair. Child & Jackson has represented many clients who have fallen down stairs, fallen off decks, and even fallen off the second story balcony due to defective railings, causing multiple fractures, surgeries and life changing injuries. If you feel that a defect in a hand rail was a substantial factor in causing you serious injury, call us and we will take a look to determine if you have a case.
There are specific rules for paint markings in parking lots, particularly for undulations such as asphalt speed bumps. Child & Jackson has represent numerous clients that suffered serious fractures, requiring surgery, from unmarked/unpainted speed bumps that blend into the surrounding asphalt, causing serious fractures or other injuries to the elderly, disabled, children, or even grown adults. Handicapped parking spaces and other ramped areas must also be properly marked (see “RAMPS” above). Parking lots are known to have the disabled, elderly, and children routinely walking on them, and must be properly maintained. There are industry standards for applying a slurry seal to insure there isn’t plant growth through cracks, root undulations (lumps or bumps caused by roots), and hazardous cracks. Parking blocks are discouraged by many safety institutions due to their propensity to cause injury, but if used, should be well marked in a well lit parking lot. Child & Jackson has represented numerous clients regarding defective parking lot cases where the disabled, elderly and children were seriously injured, including cases of fractures requiring extensive surgery. If you believe you feel due in substantial part to a defect in a parking lot, send us pictures of the scene and we can help you determine if you have a case. case.
Lighting is crucial for stairs, sidewalks, parking lots, and walkways. Improper lighting can cause very serious, even fatal injuries. Measurements, such as minimum illumination intensities in foot-candles, are provided by various government and industry organizations, such as OSHA, NFSI, ANSI, ADA, and the CA Building Code Guidelines. Poor lighting on stair cases, parking lots, and sidewalks can make safe conditions extremely dangerous. For example, concrete parking/wheel stops that may normally meet minimum requirements can become very dangerous if there is no proper lighting in the parking lot. The elderly, disabled or children may trip over the unseen object and get seriously injured. Child & Jackson has represented numerous clients injured as a result of improper lighting in parking lots, stair wells and walkways. If you believe your fell in substantial part due to poor lighting, take a picture of the condition (even in the dark). We will look at the daylight data, and may have our expert go out to the scene and measure the lighting to determine if you have a case.
OTHER DEFECTIVE/DANGEROUS TRIPPING CONDITIONS and DEBRIS
There are endless conditions that can cause injuries. Here are just a few types of cases Child & Jackson have represented clients concerning:
- Collapsed flooring: Mobile/manufactured homes can rot to the point that tenants actually fall through the floor, causing serious injury.
- Fence Posts/Metal Protrusions/Wood or Plant Protrusions: When taking out fence posts, door stops, trees, bushes or railings, sometimes contractors leave protrusions that cause people to trip and fall.
- Unintended Walkways: Parking lots can be designed in such a way that a de facto walkway emerges where pedestrians walk through grass or foliage to get to their apartment or office building, creating an unsafe well worn path. Landowners are required to place walking stones and otherwise make such pathways safe where it is apparent that pedestrians will continue to walk due access difficulties.
- Concrete/Asphalt Undulations: It is surprising how often contractors leave concrete undulations, blotches or lumps that they use to cover piping or drains, or simply forget to clean up, without properly marking the concrete.
- Bush Overgrowth: Bushes can often leave leaves, debris and other material on a sidewalk or stairwell while simultaneously covering the railings, making the area unsafe.
- Tree Roots and Branches: Tree roots are a major cause of cracks in concrete or asphalt, but their branches and leaves can also leave residue that can become very slippery on wood decks or stairwells. Branches can cover stairwells or upper decks, creating an unsafe condition.
- Debris: Construction debris, garbage, leaves, etc., can cause tripping hazards. Landowners and business owners are required to inspect their properties to make sure they are reasonably safe for pedestrians and customers.
Landowners, property managers and business owners are responsible for WARNING customers and pedestrians of defects or conditions that can cause injury [See Cracks, Ramps, Stairs, Railings, Parking Lots above]. The defective condition must be reasonably likely to cause injury, thus, not every miniscule crack need be warned about [i.e. cracks under a half inch, for example]. There are specific industry standards regarding the proper marking of defects or conditions pursuant to the ASTM Guidelines, NFSI guidelines [National Floor Safety Institute], ANSI Standards [American National Standards Institute], California Building Codes, or ADA [American’s with Disabilities Act], and other standard retail business practices that apply to the implementation of signs and warnings by businesses.
SLIP AND FALLS: TYPCIAL CONDITIONS AND REQUIREMENTS
Slippery floors, walkways, decks, and stairs are actually fairly well defined by industry standards, and are measured by the COF [Coefficient of Friction]. Indoor floors that have a .5 COF are too slippery to be safe according to OSHA’s minimum suggested floor safety standards. https://safetydirectamerica.com/oshas-suggestion-for-minimum-floor-coefficient-of-friction-cof/
Other guidelines have a similar minimum standard, such as the ADA, CA Building Codes, ASTM Guidelines/Standards, NFSI, etc. It should be noted that this is only a minimum criteria given a flat, indoor dry surface, and that OSHA and other standards place the threshold far greater depending on other circumstances, such as exterior walkways, slope of the surface, exposure to moisture, oily substances (such as old leaves), etc., all requiring the need for greater friction given the circumstances. Outdoor/exterior sidewalks, walkways, stairs and decks need much higher COF to take into account rain, leaves (which can leave very slippery oily residues) and other conditions.
RETAIL STORES-INDOOR SPILLS
Retail stores, such as grocery stores, malls, clothing stores, restaurants, etc., have specific industry standards on how to keep indoor floors safe for customers. Generally speaking, the floor must be inspected and swept every hour. Stores must keep a “SWEEP LOG” documenting that the floor was swept every hour. Video tape of the store during the date of the incident will document whether the floor was actually inspected and/or swept every hour. However, in our experience, the video tapes are almost never produced when they would demonstrate liability on the part of the store. The typical excuse is that the video tapes have been “taped over” or “lost” by the time litigation ensues [unless it shows that the store was not at fault, in which case the video tapes are usually always produced].
In retail, when a floor is mopped, or liquid is spilled, a WARNING CONE OR SIGN should be immediately placed to assure that customers / pedestrians are aware of the condition. However, the store must first have either been actually notified of the spill, or had constructive notice of the spill (for example, been in the vicinity of the spill when it occurred and failed to see it, or waiters who fail to see a spill after serving the table). The elderly and children are especially vulnerable to wet floors in retail establishments, as the flooring can become very slippery given the coefficient of friction of their floors. Warning signs signal parents and the elderly to be extra careful or walk around the area altogether depending on their situation. Without a warning sign or cone, customers and pedestrians are placed at unnecessary risk of injury.
If a customer spills something and another customer slips on it before the area could be inspected either through a normal sweep or by constructive notice, there is likely no liability. However, often there are facts that demonstrate that the employees knew, or should have known, about the spill, especially if it is within sight of the point of sale area, or was within view of one of the employees when the spill occurred. Employees are required to be reasonably aware of the condition of the floor within their field of vision.
If an employee is responsible for causing a spill or condition, or of leaving debris such as a box or dropped produce, there is no requirement of “notice” inasmuch as the act itself created the hazardous condition, establishing liability on the part of the store.
PUBLIC CLAIMS versus PRIVATE CLAIMS
There are important differences between public and private property in any slip and fall and/or trip and fall case. It is imperative that you evaluated who owned and/or operated the property where the defect existed to insure you do not miss any important deadlines in filing your claim. Here are some of the major differences you need to consider immediately after you have determined whether you have a personal injury case:
If your slip and fall or trip and fall were caused by a defect or condition caused by the government or public agency, or occurred on land or property owned by the government or public entity, there are special rules and deadlines that apply to your case. The first step is to determine if where you fell seems like a publically owned or maintained area. For example, if you tripped on a crack on a sidewalk adjacent to a public road, it is likely that it is owned by the local municipality (city). However, there are usually special city ordinances which apply that make the adjacent private owner responsible for the repair and maintenance of that sidewalk, making them jointly liable. Contacting an experienced trial attorney immediately after your injury to help you determine the responsible parties, in particular if you suspect any potential government ownership or involvement.
Most importantly, there is typically ONLY SIX (6) MONTHS from the date of incident to file a claim against government owned or operated property for defects. This is a very short period of time given that there may be numerous owners, joint easement holders, joint lease agreements, maintenance agreements, home owners associations, etc., that apply to any given sidewalk or government property. There are also strict deadlines to file a formal complaint and lawsuit depending on whether a properly filed government claims is formally rejected or ignored (i.e. rejected by operation of law). Other special considerations and law also apply to public claims and entities, which can be very complex and demanding depending on the case. These will vary wildly from case to case depending on the facts. As such, you should seek out the advice of a personal injury attorney with extensive experience in public defect cases as soon as possible and without delay. Child and Jackson will have an experienced trial attorney familiar with all aspects of a public entity premises slip and fall or trip and fall claims, and will be able to give you a free consultation regarding the germane issues, deadlines, and viability of your slip/trip and fall claims at no charge to the client.
Finally, evidence of the defective condition should be collected as soon as possible after the incident or the public entity may fix the condition before pictures of the defect can be taken.
PRIVATE PROPERTY CLAIMS/LAWSUITS
Cracks, spills and defects in private sidewalks, walkways, ramps, parking lots, stairs, stores, etc. These often occur at apartment complexes, malls and strip malls, independent businesses, grocery stores, and even at some personal residences open to the public for limited business or public events. Typically you have two (2) years from the date of your action to file a lawsuit for negligence under California Law. However, evidence becomes stale very quickly, and the defective conditions are often immediately repaired, video tapes taped over, witnesses lost, etc., therefore you should not delay in filing a report or to consult an attorney, lest your best evidence become destroyed, lost or stale. [See Gathering Evidence: Slip, Trip and Fall Actions]
LEGAL ISSUES: Slip & Falls or Trip & Falls
NEGLIGENCE AND COMPARATIVE FAULT
California Civil Jury Instructions [CACI] are the actual jury instructions given to the jury when trying premises cases. Here are a couple of the basic instructions [“Plaintiff” is the injured person, “Defendant” is the business/insurance carrier that is being sued]:
400. Essential Factual Elements
JOHN DOE claims that he was harmed by DEFENDANT’s negligence. To establish this claim, JOHN DOE must prove all of the following:
- That DEFENDANT was negligent;
- That JOHN DOE was harmed; and
- That DEFENDANT’s negligence was a substantial factor in causing JOHN DOE’s harm.
401. Basic Standard of Care
Negligence is the failure to use reasonable care to prevent harm to oneself or to others. A person can be negligent by acting or by failing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation. You must decide how a reasonably careful person would have acted in DEFENDANT’s situation.
The above standard applies to all premises cases. The failure of a defendant to do something that a reasonably careful person would do is a breach of the standard of care applied in all premises slip and fall & trip and fall cases. In most instances, cracks in sidewalks, defective steps, spills, etc., are conditions that reasonably careful people would clean up or warn customers or pedestrians about if they exist. Therefore, in premises cases, often the pictures of the condition or defect itself are the best evidence in establishing liability.
405. Comparative Fault of Plaintiff
DEFENDANT claims that PLAINTIFF’s own negligence contributed to her harm. To succeed on this claim, DEFENDANT must prove both of the following:
- That PLAINTIFF was negligent; and
- That PLAINTIFF’s negligence was a substantial factor in causing his harm.
If DEFENDANT’s proves the above, PLAINTIFF’s damages are reduced by your determination of the percentage of PLAINTIFF’s responsibility.
The above gives rise to perhaps the most common defense by insurance companies in Slip and Fall or Trip and Fall cases: COMPARATIVE FAULT. Typically, the defense tries to establish that the injured person was negligent themselves by not looking where they were going [i.e., they should have seen the spill, crack, tripping hazard, etc., before tripping or slipping on it]. This is somewhat of a psychological issue, because most people walk with a narrow area of focus ahead of them, using their peripheral vision to unconsciously take care of things approaching their feet and other areas that are in the ancillary field of vision. Insurance carriers often try to confuse clients by this difficult to describe process, by trying to make clients look like they were being reckless or unsafe, even when they were just walking normally. Our firm is well acquainted with this and other techniques by defense attorneys and insurance carriers. We retain human factors experts that are well acquainted with this and other techniques used by the insurance carriers to undermine legitimate claims, and we fully prepare our clients to navigate these legal strategies and tactics that are based more on trickery and chicanery than relevant, practical reality.