Slip-and-Fall Accidents

May 23, 2018

Court Reverses Dismissal of Plaintiff’s Slip-and-Fall Case Based on Defendant’s Willful Ignorance of Hazard

Recently, a state appellate court issued a written opinion in a personal injury case that presents an interesting issue for Virginia slip-and-fall victims who are considering filing a premises liability claim. The case required the court to determine if the plaintiff presented sufficient evidence of the defendant store’s negligence to survive a defense summary judgment challenge. Ultimately, the court held that the defendant’s willful ignorance of the potential hazard may give rise to liability, and it determined that the lower court was improper to grant summary judgment to the defendant.

The Facts of the Case

The plaintiff slipped and fell in a Wal-Mart store while walking down an aisle. Although the plaintiff did not notice anything on the floor as she approached the spot where she fell, when she got up, she noticed that she had slipped in a puddle of water.

As it turns out, there was a Rug Doctor display in that aisle from which customers could rent carpet cleaning machines. The display was set up so that a customer could rent the machine from an automated kiosk near the machines. As a part of the agreement between Rug Doctor and Wal-Mart, Wal-Mart would receive a portion of the income the kiosk generated for allowing the use of the store’s aisle space. However, Wal-Mart employees were not necessary in the regular operation of the machine and were not trained on how to use the kiosk or repair the machines. A Rug Doctor employee would routinely stop by to perform the necessary maintenance.

April 23, 2018

Court Rejects Premises Liability Claim Based on Plaintiff’s Inability to Prove the Defendant Was Aware of Hazard Causing Her Fall

by Sidney Schupak, Esq.

A key element in a Virginia premises liability lawsuit is establishing that the defendant landowner had actual or constructive knowledge of the dangerous hazard that caused the plaintiff’s injury. If a landowner has actual knowledge of a hazard, that is generally easy to establish through the words or actions of the landowner. However, establishing constructive knowledge can be more difficult.

What Is Constructive Knowledge?

Constructive knowledge is a legal fiction, whereby a court will presume that a party had knowledge of a fact based on the circumstances. Essentially, if a court finds that a party had constructive knowledge of a fact, the court is saying that the party should have had knowledge of the fact, given the surrounding circumstances. For example, if a grocery store manager claims to not have knowledge of a puddle formed by a jar of pickles that fell from the shelf, but then he testifies that he walked by the puddle 10 times while helping customers, a court may determine that the manager had constructive knowledge of the puddle.

Recently, a federal appellate court issued a written opinion in a case, providing a real-world example of how courts analyze cases involving a defendant’s constructive knowledge of a dangerous hazard.

March 5, 2018

Obviousness of the Hazard in Virginia Premises Liability Cases

by Sidney Schupak, Esq.

In premises liability claims, the plaintiff must present evidence of each element in order for a judge to submit the case to a jury. If a plaintiff fails to establish each element of his claim, the judge will grant a defense motion for summary judgment, if made.

One element that is frequently contested in premises liability cases is the obviousness of the hazard. Obviousness is less an element of a claim than it is a defense. Essentially, if a defendant in a premises liability case can establish that the hazard that caused the plaintiff’s injuries was open and obvious, the plaintiff’s case will be dismissed.

A recent case illustrates how a plaintiff’s knowledge of the hazard that caused his injuries can defeat the plaintiff’s claim.

February 1, 2018

Court Applies the “Continuing Storm Doctrine,” Dismissing Slip-and-Fall Plaintiff’s Case

by Sidney Schupak, Esq.

Earlier this month, a state appellate court issued a written opinion in a personal injury case, raising an important issue that frequently comes up in Virginia slip-and-fall cases. Specifically, the court was tasked with determining whether a business owner was reasonable in waiting until a storm passed to clear ice deposited by the storm. Applying what has come to be known as the continuing storm doctrine, the court determined that the business owner was entitled to wait a reasonable time until after the storm to clear any snow or ice left behind.

The Facts of the Case

The plaintiff was employed as a driver for a retirement home. Primarily, the plaintiff operated a shuttle van that was used to transport residents. On one particularly rainy and cold day, the plaintiff stopped to get gas at the defendant gas station at around 7:00 a.m. At this point in time, the gas station had been open for about an hour.

As the defendant exited the shuttle to fill up the gas tank, he slipped on a patch of ice that was undisputedly caused by the freezing rain. As it turns out, moments before the plaintiff slipped and fell, a gas station employee had fallen on the ice. The employee notified her supervisor of the ice and arranged for a third-party snow-removal company to clear the ice. Of course, the ice was not cleared by the time the plaintiff fell.

December 11, 2017

Court Rejects City’s Assertion of Government Immunity in Recent Premises Liability Case

by Sidney Schupak, Esq.

Earlier this month, an appellate court in Illinois issued an opinion in an interesting case that presents relevant issues to victims who are considering filing a Virginia premises liability case against a government entity. Specifically, the case deals with the state’s recreational use statute and whether the trail where the plaintiff was injured was covered under the statute. Ultimately, the court concluded that the “mixed-use” trail at issue was not covered under the statute, and thus immunity did not apply.

The Facts of the Case

The plaintiff was injured while biking on a mixed-use trail. Evidently, an area of the pavement became cracked after weeds and other vegetation grew up through smaller cracks. The result was a bumpy patch of pavement.

As the plaintiff was riding in a group with her friends, one of the bicyclists ahead of her fell off her bike after running over the bumpy pavement. The plaintiff was unable to avoid a collision with her friend and ended up falling off her bike as well. She sustained serious injuries in the fall and filed a premises liability lawsuit against the city responsible for the maintenance of the trail.

November 6, 2017

Plaintiff Enters into Broad Settlement Agreement, Inadvertently Excusing Multiple Parties

by Sidney Schupak, Esq.

Last month, an appellate court in Mississippi issued an interesting opinion that should act as a word of caution to victims who are considering bringing an Indiana personal injury case. The opinion discusses the breadth of a settlement agreement entered into by the plaintiff and one of the parties she named as a defendant. Ultimately, due to the broad language included in the agreement, the court concluded that the agreement excused an additional party from the plaintiff’s case, despite that not being her intention.

The Facts of the Case

The plaintiff was walking on the sidewalk in front of an auto parts store when she stepped into a sunken hole where a utility box had been placed. The plaintiff sustained serious injuries as a result of her fall, and she filed a premises liability lawsuit against the city where the accident occurred, the utility commission that placed the box, and the auto parts store.

During pre-trial negotiations, the plaintiff entered into settlement agreements with the city as well as the auto parts store. Relevant to this case is the agreement between the plaintiff and the city. That agreement included language that released the city from liability, as well as its “successors, agents, attorneys, insurers, subsidiaries, sister or parent companies, assigns, employees, representatives, [and] stockholders.”

September 6, 2017

Court Upholds Slip-and-Fall Plaintiff’s Verdict over Defendant’s Sufficiency Challenge

by Sidney Schupak, Esq.

When someone is injured in a Virginia slip-and-fall accident and files a personal injury case seeking compensation for their injuries, the case will be heard by either a judge or a jury. Even if the case is heard by a jury, the judge will have an important role throughout the process by making determinations of which evidence will be presented to the jury, which substantive rules apply, and how the jury is instructed upon deliberation.

In Virginia personal injury cases that are heard by a judge, the judge will have the final say in the ultimate determination of liability. In some cases, a different judge may make certain pre-trial evidentiary rulings in order to not unduly sway the mind of the judge hearing the case. Once a judge makes a determination as to liability, that decision will be final; however, the losing party may have several appealable issues that can be brought to the attention of a higher court. A recent slip-and-fall case illustrates a defendant’s unsuccessful attempt at reversing a judge-issued verdict.

The Facts of the Case

The plaintiff tripped on a defect in the sidewalk when exiting the defendant hospital. As a result of her fall, she broke her toe and sustained a serious back injury. She filed a premises liability lawsuit against the hospital, arguing that the hospital was negligent in failing to properly maintain the sidewalk. As a part of her claim, the plaintiff had to establish that her injury was a reasonably foreseeable consequence of allowing the defect in the sidewalk to remain. Additionally, she had to establish that the defect in the sidewalk was the actual cause of her injuries.

June 26, 2017

Court Determines Accumulated Rainfall May Constitute Dangerous Condition, Depending on Surrounding Circumstances

by Sidney Schupak, Esq.

While all landowners and business owners have a duty to ensure that their property is safe for those whom they invite onto their land, there are limitations to this duty. One of the most common limitations that courts impose on a landowner’s duty to keep his premises safe involves dangerous conditions that are readily apparent to guests.

The rationale behind this limitation is that an injured party should not be permitted to seek compensation for their injuries if they were aware of the dangerous condition that ultimately caused their injuries. A recent case illustrates how a state appellate court was asked to apply this limitation on a landlord’s duty, but it declined to do so.

The Facts of the Case

The plaintiff was a college student. On a clear and sunny day, she was dropped off at school by her father. She entered the building where her first class was and attended class. During her first class, the weather outside changed, and it began to rain. However, the plaintiff was not aware of the change in the weather because the classroom where she was did not have any windows.

March 22, 2017

Court Prevents Slip-and-Fall Plaintiff from Making Argument on Appeal Because It Was Not Made at Trial

by Sidney Schupak, Esq.

Earlier this week, an appellate court in Rhode Island issued a written opinion in a premises liability case brought by the parents of a young boy who was injured while playing baseball in a park owned and operated by the defendant city. Ultimately, the court determined that although the plaintiff presented evidence on appeal that the defendant city knew of the alleged hazard prior to their son’s injury, it could not be considered on appeal because the evidence was not presented at trial.

The Facts of the Case

The plaintiff was participating in a baseball game in a park that was maintained by the defendant city. As the plaintiff was sliding into home base, his right foot and shin slid under the edge of the plate, which had been lifted due to repeated use. As the boy tried to stand, he broke his leg in two places.

A few months after the accident, the boy’s parents filed a personal injury lawsuit against the city, alleging that it had failed to safely maintain the field. In response, the city claimed that it was immune from the lawsuit due to the state’s recreational use statute. The plaintiff’s attorney issued a general objection to the application of the recreational use statute, but failed to provide a specific basis for the objection.

March 6, 2017

Court Determines School’s Efforts to Melt Snow in Parking Lot Did Not Increase the Chance of Student’s Slip-and-Fall Accident

by Sidney Schupak, Esq.

Earlier this month, a state appellate court issued an opinion in a premises liability case that required the court to determine if a school could be held liable in a case in which a student slipped and fell on a patch of ice that formed after the school applied snow-melt in the immediate area. Ultimately, the court concluded that while the school’s actions did alter the natural state of the snow on its property, there was no evidence suggesting that the school’s actions increased the risk of an accident. Thus, the case against the school was dismissed.

A Student Playing on an Ice Patch Slips and Falls

A student at the defendant middle school was playing on a patch of ice with some friends when he fell, chipping a tooth and fracturing his nose. The boy’s parents filed a premises liability lawsuit against the school, arguing that the school should be held liable for his injuries because it negligently allowed the ice patch to form.

The school moved for summary judgment, explaining that the snow or ice is cleared by school employees each morning. Evidence also showed that school employees applied snow-melt to the parking lot in order to get the snow and ice in the parking lot to melt. The school argued that it should not be held liable for the natural accumulation of snow or ice on the property.