It’s a scenario that plays out in countless grocery stores, convenience stores, even restaurants and fast-food chains, around the country. A person slips on the floor and a lawsuit springs up seemingly before the plaintiff even hits the ground.
It’s the classic “slip-and-fall case,” a claim that the store was negligent in allowing a dangerous condition to exist that caused the slip.
Until recently, a plaintiff could prevail in a slip-and-fall case only if a store’s employee caused the dangerous condition, the store knew of the dangerous condition or should have known of the dangerous condition because it existed for a long time. The onus was on the plaintiff to prove that the store was at fault. No easy feat.
Lawyers for the defendant traditionally felt that as long as they had the store’s sweep log, they had enough ammunition to win the case. And for the most part, particularly in Massachusetts, they were correct, as the courts almost always ruled on behalf of the defendant. Because of this, complacency tended to creep into the mindset of some attorneys and claims examiners, resulting in a lack of preparation that can potentially cause their client to fall victim to both large settlements and bad publicity.
The law began to shift in April 2007, when the Supreme Judicial Court of Massachusetts adopted a new approach to slip-and-fall cases. The court adopted the “mode of operation approach,” allowing the plaintiff to satisfy the notice requirement if the plaintiff can prove that the injury occurred because of a dangerous condition related to the store’s self-service mode of operation.
But it was a wake-up call some attorneys never heard.
For example, in a 2007 case a grandmother slipped on some rice in the aisle of a major Boston-area supermarket and suffered a broken knee.
Before trial, the judge suggested the defendant offer $10,000 (which I believe the plaintiff would have accepted). Instead, the defense attorney and the claims examiner conferred and came back with an offer of zero dollars. The defense attorney and claims examiner never factored in the “mode of operation” ruling.
It turned out to be a costly decision. The jury awarded the plaintiff $50,000, which ballooned to more than $55,500 when added costs and interest were tacked on.
Even now, three years after the change in the slip-and-fall law, many claims examiners and defense attorneys remain complacent and reliant on old proofs.
So, what can be done to assure that other businesses don’t also fall into the same trap?
• Know the plaintiff. Check to see if there is a pattern of lawsuits and do a medical exam, if warranted, to see if causation is an issue. Causation is one of the essential elements that a plaintiff must prove in a personal-injury action. For example, in the 2007 supermarket case, the grandmother fractured her patella. The X-ray showing the fracture was taken within hours after the fall. Causation was not an issue in this case. There was no real reason in this case to pay for a doctor to examine the plaintiff, draft a report and possibly testify at trial, at a cost of thousands of dollars.
On the other hand, if this particular plaintiff had slipped and fallen and alleged an injury to her lower back, visited orthopedic doctors and physical therapists for several months, and the resulting diagnosis was a bulging disc as a result of the fall, causing a percentage of permanent impairment, then your antenna should go up. In such a scenario, causation is a big issue.
• Think out of the box when it comes to risk management. Companies tend to rely too much on computers and formulas when attempting to come up with settlement offers. But what you need to do is put a human component into your evaluation. Ask yourself the most important question, “How likeable will the plaintiff appear to the jury?”
Don’t make the mistake of cookie-cutting each settlement based on other cases. The plaintiff in the supermarket case might not have been Mother Theresa, but a 78-year old grandmother, struggling to raise three children, now out of commission with a fractured knee, just before Christmas, is about as close to a blank check for a jury as they come. Ultimately, a claim is worth what a jury will give, not what the computer says.
• Finally, listen to your attorney’s advice. Make this a priority in the proceedings. Your attorney knows the legal system, has hopefully performed all the necessary due diligence in the case, and can give you an honest and forthright risk assessment, one that can save you a multitude of headaches down the road, and just as many dollars. •
Michael Maniscalco is a partner at Maniscalco & DiOrio in Quincy, Mass. He can be reached at mike@maniscalcoanddiorio.com
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