Articles Posted in Slip and Fall

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clubIn or around August of 2009, Angela Sarkisian was in attendance at a night club named ‘The Liquor Store’ in Boston, Massachusetts.  Ms. Sarkisian was at the club for a bachelorette party she was attending.  The club consisted of two bars as well as a wooden dance floor and lounge area adjacent to the dance area.  Patrons were freely able to bring drinks from the bar to the dance floor as well as the lounge area.  In order to get to the lounge area a patron had to ascend two stairs.  Ms. Sarkisian spent the night with her friends and frequented the dance portion of the club as well as the lounge area.  At one point, she was taking the steps down to the dance floor and slipped on a puddle of liquid.  As a result she broke her leg in two places and required serious medical attention for her personal injuries.

Ms. Sarkisian brought suit against the club, predicated on negligence, and claimed that the club was negligent in allowing a defect (the puddle) to exist on the floor.  As a result of such a defect, she claimed she suffered serious and severe personal injuries.  The club countered that the Defendant did not breach any duty of care to the Plaintiff and that she failed to prove that club knew, or should have known, about the spill on the floor.  The club contended that without such notice, no breach of duty of care could be established.  As a result, the Defendant filed a motion for summary judgment alleging that there were no material facts in dispute that rose to a triable level- and as such- the Defendant should be entitled to judgment as a matter of law.  The court ruled in favor of the Defendant and Ms. Sarkisian appealed.

On appeal the Plaintiff argued that the mode of operation approach should apply because, based on the night club’s businesses, it is foreseeable that drinks can be spilled on a floor and create a dangerous condition.  In discussing the Plaintiff’s argument of ‘mode of operation’ the court wrote: Continue reading →

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mallOn April 24, 2011, Jackie and Ricky Cox, a husband and wife, went to a Wal-Mart to purchase some goods.  As Mrs. Cox made her way through the entrance, she fell and sustained serious personal injuries in connection with her fall.  An uninterested witness, an observer some twelve feet away, watched the fall take place.  He testified that for an hour before the fall he had observed the door threshold rising up approximately one half inch whenever a customer or cart crossed the threshold.  The witness testified that he observed this to occur due to the fact that the threshold plate was not secured tightly to the ground.  As a result, whenever a person stepped on one side of the metal plate, the other side would rise up.  He further observed, and subsequently testified, that when Mrs. Cox stepped on the plate with one foot, her other foot caught the plate causing her to fall.  A manager for Wal-Mart denied any sort of occurrence predicated on a rising plate.

Mrs. Cox filed a complaint in her home state of Mississippi and it was ultimately removed to Federal Court.  Mrs. Cox claimed that it was negligent of the store to allow a defect to exist on the property and that such a defect was unreasonably dangerous to persons such as herself.  The Defendant store argued that the purported defect in the threshold was not unreasonably dangerous.  A lower court agreed with the defense and held that a door threshold is among those dangers which are usual and which customers normally expect to encounter on the business premises, such as thresholds, curbs and steps.  As a result, the Plaintiff’s claim was dismissed.

The Plaintiff filed an appeal in the matter which was heard by the United States Court of Appeals in the Fifth Circuit.  The Court, on appeal, held that while there are certain dangers which are usual for a customer to expect, a defect is not one of those dangers.   A defect, the court detailed, is not a condition that one would normally encounter in the normal course of operations or mode of operation of a business.   The Court reversed the prior court’s ruling and allowed the Plaintiff to proceed to litigate her case on the merits. Continue reading →

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xrayIn a traditional case of negligence, the fact that the Defendant did a bad act is not necessarily enough for the Plaintiff to recover sums of money.  Our judicial system is grounded on the fact that we want to compensate victims, not punish wrongdoers.  As such, if a Plaintiff suffers a harm by a Defendant but has no lasting injury or damages to show for it- it will be very difficult for that Plaintiff to recover any compensation.  In addition to showing a duty that was owed to the Plaintiff, which was breached by the Defendant, the Plaintiff also has the burden of showing and proving that this breach caused him or her to sustain damages.

The evaluation of pain and suffering and of the other aspects of damages requires a determination of how badly the plaintiff was hurt—the nature, extent, severity, permanency, and effect of the injuries.  While any sort of physical pain or injury may have been small, this is not a bar to recovery.  Courts in Massachusetts have articulated that even if a bodily injury may have been very small, if it caused mental suffering to the plaintiff, that suffering was a part of the injury for which he/she was entitled to damages.

Showcasing damages may come in a variety of flavors.  For instance, if the injury causes or contributes to cause the development of a pre-existing disease, the person liable for the injury is also liable for the resulting aggravation.  A court may also look to the loss of earning capacity sustained by the Plaintiff.  When deciding such an amount the factfinder (be it judge or jury) may take into consideration what type of person the plaintiff is, the talents he or she has, the contributions plaintiff has made to society, etc.   Another category of damages is loss of enjoyment of life.  This is measured by his or her status in community affairs, personal interests and hobbies, contribution to society, etc. A plaintiff may recover reasonable medical and hospital expenses incurred in treating the injuries caused by a defendant’s purported negligence.  It is not necessary that the plaintiff actually paid the expenses, just that they were incurred (such as through insurance). Continue reading →

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darkIn September of 2009, Michael Eason reserved a room at the Boston Marriot Burlington Hotel for an overnight stay.  After checking into the hotel at approximately 8:00 pm, he made his way to his rented room.  After opening the door to his hotel room, Mr. Eason admitted that the room was dark except for the faint glow emanating from the partially open door and a small gap in the curtain hanging over the windows.  As he stepped further into the hotel room, the light became even fainter as the door fully closed.  Mr. Eason took a few more steps in his room and unexpectedly encountered a coffee table that caused him to sustain a serious fall.  Mr. Eason alleges that it was negligence on behalf of the hotel that caused or substantially contributed to the injuries he sustained in connection with his fall.  A suit was commenced in Middlesex Superior Court but was ultimately moved to federal court for litigation.  The Defendant Hotel filed a motion for summary judgment in hopes of getting the case dismissed.

In order to succeed in a claim predicated on negligence a plaintiff must establish that the defendant owed the plaintiff a duty of care, that there was a breach in the purported standard of care, and due to the breach the plaintiff was caused to sustain damages for which he or she should be compensated.  In discussing the duty in this matter, the Judge reiterated that:

“While a landowner has a duty to lawful visitors of its property to maintain reasonably safe conditions and to warn of unreasonable dangers, landowners “are relieved of the duty to warn of open and obvious dangers on their premises because it is not reasonably foreseeable that a visitor exercising (as the law presumes) reasonable care for his own safety would suffer injury from blatant hazards. . . Stated otherwise, where a danger would be obvious to a person of ordinary perception and judgment, a landowner may reasonably assume that a visitor has knowledge of it . . . .””

Continue reading →

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field-trip-205687-mMichelle Wilkins was approaching a public school in Haverhill in February of 2011 to attend her child’s parent-teacher conference. As she was making her way to the school she slipped and severely injured herself on ice that had accumulated on a walkway of the school. After treating for her injuries and seeking medical intervention, she brought suit against the city of Haverhill alleging negligence in the city’s failure to properly maintain the walkways to be free of ice and accumulating snow.  She argued that this accumulation constituted a defect in the property. Additionally, as a result of the alleged negligence by the city of Haverhill for allowing such a defect to exist on its property, she was caused to sustain numerous injuries. The city of Haverhill responded to the allegations by seeking to dismiss the case. In a somewhat surprising defense, the city of Haverhill cited M.G.L. c. 21, § 17C, the Recreational Use Statute.

As previously mentioned on this site, under the Recreational Use Statute in Massachusetts, a city or private party who permits the public to use his or her land for recreational purposes without fee, will be relieved of liability for injuries allegedly sustained as a result of defects in the property. The trial court judge allowed the City’s motion to dismiss the case, and the injured Plaintiff appealed. On appeal, the city argued that the Plaintiff’s claim should be barred under the statute because she is a member of the public and her attendance at the parent-teacher meeting qualified as an educational purpose within the meaning of the statute. Continue reading →

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1334532_48594781According to the National Safety Council (NSC), approximately 8.9 million Americans visit the emergency room every year due to injuries suffered in slip and fall accidents. Though people of any age may suffer injuries when they slip, trip, or fall down, statistics show that Americans aged 65 and older may suffer particularly severe injuries. Specifically, hip fractures are possibly the most prevalent injury suffered by elderly Americans who slip and fall.

The Centers for Disease Control and Prevention (CDC) reports that 258,000 people in the U.S. over the age of 65 were admitted to hospitals for fractured hips in 2010 alone. Falling down was the number one cause for such hip fractures. Most often, the victim would fall to the side and land directly on their hip. Falls took place in a wide variety of locations, including the victim’s home, stores, other public places, nursing homes, or even within the hospitals themselves.

Continue reading →

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under-construction-1268302-mOn May 31 2005, Tom Filepp was riding his bicycle on Harvard Street in Brookline, Massachusetts when he had an unfortunate accident due to the condition of the pavement. Specifically, he was pedaling his bicycle and encountered a “rut” in the pavement that caused his bicycle, and him, to turn over. Mr. Filepp suffered serious and severe personal injuries as a result. He promptly provided notice to the City of Brookline of the injuries he sustained. Subsequently, it was discovered that the Boston Gas Company was the responsible party as the corporation created the defect in pavement that caused Mr. Filepp’s accident.

Mr. Filepp was forced to file suit against the Boston Gas Company for claims predicated on negligence. The Defendant corporation asked the court to dismiss the case arguing that there were no material facts in dispute that rise to a triable level, and as a result, the Defendant should be entitled to judgment as a matter of law. The Defendant argued that Mr. Filepp, the Plaintiff, failed to give notice to the Defendant within 30 days of his accident. Under Massachusetts General Laws c. 84, § 18, a person injured due to a defect on a public way must send notice within thirty days after the injury to the, “county, city, town or person by law obliged to keep said way in repair.” As a result, because the Plaintiff failed to notify the Boston Gas Company, the organization obliged by law to maintain the parcel of land, the court dismissed Plaintiff’s case. Plaintiff appealed.  Continue reading →

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sunny-icicles-813790-mAccording to the National Weather Service, the average snow fall in Framingham for the month of February is 9.1”. The snow precipitation that we’ve encountered in the past few days has left approximately 10”-12” in towns throughout the metro west area. This one storm has left accumulations that are more than the average total for the entire month of February. While individuals plow their driveways, shovel their steps, and make areas of travel safe for guests and household members, a hidden danger lurks in areas most individuals are unable to remedy with ease- icicles hanging from rooftops. While many may laugh at the idea of an icicle posing a danger, the length and width of icicles falling from great heights transform these frozen wonders into frozen missiles capable of exacting injury, and in some cases, even death.

In Gosselin v. Colonial Shoping Center, Inc., a Plaintiff was injured while walking to get a cup of coffee from the Defendant’s store. As she approached the entrance she heard a sound of thunder from up above on the roof of the establishment. Before she knew it, she was hit unexpectedly by snow and icicles that fell from the roof. The Plaintiff brought suit against the store owner due her significant injuries that necessitated the intervention of an orthopedic doctor, claiming that the store owner failed to exercise a duty of reasonable care by failing to guard against the falling snow and ice. The lower court judge found in favor of the Defendant store owner. On appeal, the court held that there was no evidence suggesting any breach of the duty of reasonable care on the part of the Defendant. Additionally, the court held that the Plaintiff failed to present any expert testimony suggesting a design defect in either the roof or the awning where the snow fell. Finally, the court held that the Plaintiff presented no evidence that the Defendant was aware of the defect.  Continue reading →

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dark-doorway-1364550-mAn eighty year old woman enters a funeral home to attend the funeral of a friend. As she makes her way to her destination, snow continues to fall as it had been doing for the past hour or two. After making her way up the stairs to the funeral home and through the entryway door, she wipes her feet on the carpet just inside the entrance of the funeral home. After taking one step off the carpet she falls in a 3′ x 4′ area of dirty water on a marble floor and suffers injuries. She brings suit against the owner of the funeral home claiming negligence, and specifically, a breach of a duty of care owed to her and other patrons by failing to recognize the danger of water that had been accumulating on a marble floor. After extensive litigation in the matter, a jury returned a verdict for the injured Plaintiff. However, on appeal, the decision was reversed and the court held that, due to the transitory nature of the premises, and the lack of evidence that the floor became peculiarly slippery when wet, the court could not find the landlord breached his duty to the Plaintiff.

Does the “transitory nature” of premises effect a person from recovering due to a fall of snow, water, or ice at the entranceway of a premises?

The court in Wexler v. Stanetsky Memorial Chapel of Brookline, Inc. (referred to above) held that it does prevent an individual from recovering money from a landlord or shop owner. The court held that the transitory conditions of the premises, and its use in normal wet weather, could not have been prevented. Additionally, “there was no evidence to indicate that the water on the floor was more than the, “results from the tramping of many feet in such a place . . . under the conditions of weather then existing.’”  Continue reading →

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snow-covered-street-685491-mThe start of 2014 has brought an extreme cold wave, known as a Polar Vortex, that has plagued the United States. Individuals from the Midwest to New England have been greatly impacted by this weather pattern. Snow has been falling in record amounts, falling faster than it can be dealt with, and the bitter cold has made it unbearable to be exposed to the outdoors for an extended period of time. This accumulation, coupled with periods of warmth, are a dangerous combination. After the snow melts and creates pools of water on sidewalks and roadways, the menacing mother nature of New England blows in and freezes these water sources. The result creates hazardous conditions for pedestrians who utilize public sidewalks and roadways.

Massachusetts General Law Chapter 84, Section 15, provides the exclusive remedy against a city or town for injuries or damages caused by a defect in or upon a public way. Typically, if one is injured as a result of a defect on a sidewalk or roadway owned or operated by a city or town, there is a limited recovery of $5,000.00. Generally, a person’s right of recovery will be governed by this law if:

  1. he/she sustained “bodily injury or damage in his property . . .”;

  2. “by reason of a defect or a want of repair or a want of sufficient railing . . .”;

  3. while traveling;

  4. “in or upon a [public] way … .”

A “defect” is anything in the state or condition of the way that renders it unsafe or inconvenient for ordinary travel. This is not to say that the road or sidewalk need to be in perfect condition, but rather, reasonably safe. Imperfections in the road or sidewalk are considered to be expected and travelers should be aware of this. A defect may be a pothole, a roadway design, or a broken tree. However, snow or ice is NOT considered to be a defect. Under Chapter 84, section 17, “a municipality shall not be held liable for injuries sustained upon a public way due to snow or ice if, at the time of the accident, the way was otherwise “reasonably safe and convenient for travelers.” Put another way, if a traveler falls due to the snow or ice, he or she cannot typically recover against the municipality. Continue reading →