New York Personal Injury Law Blog » Slip and Fall, trip and fall


February 25th, 2015

Trips and Falls and Expectations (updated)

A trip and fall case invariably runs into a problem: Either the surface defect is so big that the defense claims it is “open and obvious” or it is so small that it is claimed to be de minimus and therefore not actionable.

In the eyes of a defendant, either one defense or the other (or both) will be asserted. And many jurors will accept one of those arguments.

But here is the problem, which this 2012 video below makes abundantly clear: Trips (or slips) on stairs and sidewalks and such are governed by the expectations of the pedestrian. We simply don’t walk the same way on the marble floor of an office building as we would on a rocky and rooty hiking trail. And we expect, when walking on stairs, that they will all be of an even height. And if one is off, this happens:

Trip or slip cases are not just governed by what the defect looks like, but what it is that we expect to see. A lone patch of ice, or one mis-measured step, can oft times be far more dangerous than the obvious stuff. Because then you have a trap.

Update, 3/23/15: I must be going senile. Not only did I blog this story once before, three years ago, but I used the exact same title. Which way to the Bloggers’ Asylum?

13 thoughts on “Trips and Falls and Expectations (updated)

  1. I was on a vacation some time ago and, to pass the time, I picked up a copy of the local free weekly (?) county news paper. In the legal notices part was a section on all of the suits filed since the preceding issue of the paper. The vast majority of them were slip-and-falls in the produce section of super markets. It looked like a veritable cottage industry at work. Like maybe five out of eight?

    Is this usual? Do these suits just get settled for some nominal sum by the store/corporation as the cost of doing business?

    No, I’m not joining the scam. My back hurts enough as it is without help from a carefully tossed grape.

    • The vast majority of them were slip-and-falls in the produce section of super markets.

      Such potential cases always have once central issue: Did the store have notice of the defect? (wet floor, banana peel, etc.) Unless the store either knew about the problem, or had a reasonable time to discover it (that banana peel was very brown and must have been there for a long time in a high traffic area), the case will go down in flames.

  2. @Old Geezer
    From the defense perspective, there are a large number of premise liability claims that get filed, at least where I practice, but I don’t think it really translates to a ‘cottage industry’. My gut feeling is that so many of these claims get filed because, other than car accidents, these are probably one of the more common types of personal injuries that happen, and one where the facts rarely provides a clear answer for fault. And while its true that many of these cases settle, a large number also settle before any lawsuit ever happens. But these lawsuits might get filed for various reasons including:

    (1) statute of limitations issues;
    (2) ongoing treatment precluding determination of damages;
    (3) ongoing investigation precluding factual determination of case merits;
    (4) subjectively unreasonable demands;
    (5) company policies against non-litigation settlements/subjectively unreasonable offers;
    (6) hope that court/venue assignment might lead to higher or lower settlement;
    (7) hope that litigation expenses might result in higher offer;
    (8) disagreements about application of law to facts (e.g., whether notice existed); and many others.

    I don’t even think the majority of defense attorneys would characterize these claims as a ‘scam’; like many things, some claims are legitimate, others are frivolous, and many others find themselves in the grey area of questionable liability, where they could go either way between the parties.

    • Neel:

      That is a terrific summary of the way a defense lawyer approaches a case, completely devoid of the too-often seen, drank the Kook Aide, all-cases-are-scams mentality that I’ve seen in many insurance adjusters.

  3. The term “scam” is probably over dramatic, but it was my initial reaction upon reading the paper and remarking on it to my wife. Certainly at least some of the cases were justified, but the wording of the filings as printed in the paper gave me pause. Possibly the content had been written by a stringer after reading the actual filing, and that may have influenced the tone of the resulting reports. But after seeing Russian dashcam videos, one does get the notion that insurance milking cottage industries exist somewhere.

  4. Not fer nothin, but the exact subways-stairs situation obtains at the uptown 1 northeast staircase at 23rd street. One of the stairs is a good 1/2 inch higher than the others. I kept tripping over it, just as the poor souls in the video do, along with cursing myself for not picking up my feet adequately (“come on, old man! Pick up the feet!”) until it occurred to me to take a good look at the stairs themselves. Evidently no one’s sued the MTA yet, or hurt themselves badly enough, because it’s been that way for several years.

  5. Great video, but why should the taxpayers fund such routine matters? The slip-and-fall victim gets a great benefit from the public transit system. At the very least, a schedule of payments based upon verified medical bills would make more sense than laying out 2x the ultimate damages in fees to lawyers on both sides.

    • why should the taxpayers fund such routine matters?

      You mean the victim should bear the costs instead of the tortfeasor?

      At the very least, a schedule of payments based upon verified medical bills would make more sense than laying out 2x the ultimate damages in fees to lawyers on both sides.

      You understand that this makes no sense whatsoever, right? The extent of injuries is often unrelated to the medical bills, as some injuries are treatable and some are not.

  6. @df

    While a tort victim gets a benefit from a properly functioning public transit system, that benefit is entirely irrelevant to whether the system bears responsibility for an injury suffered by a victim. If I’m defending a store like Wal-Mart or Target, I can’t defeat liability in a slip-and-fall where my client had actual or constructive notice of a condition by claiming that the victim has had a large number of prior satisfactory shopping experiences.

    And while it’s fine to discuss the extent to which public actors should be liable for damages, in practice its somewhat difficult to implement a policy that satisfies all the underlying goals. For example, the intent behind tort law is to make a victim whole and compensate them for the economic (medical bills, lost earnings/earning capacity, lost/incurred services) and non-economic injuries (disfigurement, pain and suffering, mental anguish) they’ve suffered. You could argue that a law establishing that the person injured by public transit should be able to recover defined economic damages, but not non-economic damages, is acceptable to meet the policy goals. But that same law would undermine the policy goal of making a tort victim whole; the victim injured by public transit would not be entitled to recover damages that a non-public transit victim could recover. Similarly, damages caps raise the same concern.

    And that’s really a major concern with the idea of scheduled payments. I could easily foresee a situation in which these type of scheduled payments completely price out any attorney from taking those cases for a prospective plaintiff. After all, if caps are limited based on medical damages (which generally have to be reimbursed) how could any attorney financially afford to take the case on contingency? Similarly, why would any plaintiff pay a lump sum or hourly rate (or at least a rate sufficient to attract an attorney). And if you think this is just unnecessary speculation, look at the effect damage caps have had on medical malpractice cases in Texas. Similarly, a cap system would also seem to reward people who deliberately chose not to use insurance for their medical care, since they’d have higher bills from which to obtain damages (while allowing attorneys to negotiate reimbursement reductions after an award). And this would put an attorney in a tricky position of having to advise a client whether to use insurance, knowing that without the insurance to damage award might be higher while risking that the client might have to pay the higher bill amount if he or she does not prevail in the lawsuit.

  7. @Eric Turkewitz – the”tortfeasor” seems to be an impressive way of saying “deep pockets.” Who’s the tortfeasor if that same person makes it up the stairs and trips on the curb, or his own shoelace? My point is sometimes people just have to accept their losses, and I’d include public transit stairways as one of those places. Clearly I am in the minority on that.

    • the “tortfeasor” seems to be an impressive way of saying “deep pockets.”

      One has nothing to do with the other.

      Who’s the tortfeasor if that same person makes it up the stairs and trips on the curb, or his own shoelace?

      There is none. But I don’t know why you ask since that has nothing to do with the video in this post.

      My point is sometimes people just have to accept their losses,

      It’s always easy to be dismissive of someone else’s injuries. Here, read this by a noted tort “reformer” who was then injured and couldn’t proceed because of the policies he advocated for:

      Crushed By My Own Reform

  8. So, df, if someone falls down a flight of subway steps due to a stairway defect pursuant to the Transit Authority’s negligence and the victim is seriously injured and confined to a wheelchair for the rest of his life then in your world its just too bad…better luck next time?? I don’t know whats more disturbing: your potential trolling or that you’re completely serious. I hope that you’re never seriously injured in an accident, go through many years of litigation and finally have your day in Court and at trial relying on jurors that share your minority view point.