Slip and Falls and Trip and Falls; Premises Liability
Trip and fall cases and slip and falls come under the legal category of “premises liability”, which is a broad term that includes many different kinds of cases. In general, premises liability refers to the legal duties that a property owner or manager has toward the public. The cases that our law firm handles fall into several categories:
“Slip and fall” or “trip and fall” incidents are familiar to most people. This is what most people think about when we talk about injuries on property. Premises liability also covers other types of property related injuries.
Rape and Assault cases in apartments or commercial places are another main category that our firm handles. Often referred to as “negligent security cases,” they refer to the landlord’s failure to protect tenants.
Let's get deeper into each category:Trip and Fall Cases in Georgia
The first thing to know is that you should not immediately call a lawyer just because you fall down. With simple sprains or bruising, let your body heal and chalk it up as a close call. The law is here to support families when there are serious consequences from a fall. Our firm will only accepts cases when the fall caused the victim to break a bone or to need surgery. This is not because these are the only cases that deserve attention, but because we want to focus our attention on helping the clients who have had a life-changing injury that truly requires our legal representation. So the first thing you should do after a fall is ask yourself, “Is my injury really serious enough to get a lawyer involved?” Do not get taken advantage of by a store but do not make a mountain out of a molehill either.
If the injury is serious, then the next question to ask is “who is responsible for the injury?” Keep in mind that just because you fall on someone else’s property, this does not mean that it is definitely their fault. If you are walking through Publix, for example, and you trip over a box of cereal and become injured, the Open and Obvious Doctrine says that this is probably not the store’s fault. Because the cereal box was large and easily visible, common sense says that you should have been able to see it and avoid it.
On the other hand, if milk has been spilled on a store’s white floor and is not cleaned up for a long period of time, then someone’s slip and fall is probably the store’s fault.
In general, in order to establish that the store is at fault, the injured person has to demonstrate that the owner 1) had “actual or constructive” knowledge that the item or substance was in place to cause a fall and 2) that the injured person slipped or tripped despite exercising care on their part.
In the past, judges would often throw out cases because the injured person admitted that they were not actually looking at their feet as they were walking. However, because that seemed unfair, the appellate court decided that even if a person was not on constant lookout, the case can still go to a jury.
Even so, you should know that slip and fall cases are still quite vulnerable to Motions to throw out the case before it can get to a jury. If the store owner’s lawyers file a Motion for Summary Judgment, then they can try to convince the Court that the jury will not have enough evidence with which to make a decision.
One obstacle that can come up in slip and fall cases is an inspection log that the property owner can submit in an effort to show that they had a reasonable inspection schedule in place. “Reasonable” patrol times vary according to the law, but if a grocery store can show that they looked for hazards around the store every 15-20 minutes, then the Court will probably dismiss the case. This may seem unfair, but remember that no one can expect a store to patrol its grounds constantly, looking for anything that could be out of place every minute.
A good example of how these cases are considered is Perkins v. The Val D’Aosta Co., Case No. A10A0413 (Ga. Ct. App., July 9, 2010).
So if store owners can try to get a case thrown out by saying that the obstacle was in place too recently for the store to notice it, how does our firm respond?
Simply put, we use detective work and depositions. If there has been a serious slip and fall or trip and fall case, it will probably go into litigation, and at that point we talk to store employees and managers and look through store records and videos. Although stores will often begin by claiming that they have no responsibility, this defense tends to fall apart when hourly wage employees testify under oath.
Bottom line? Do not let yourself become discouraged just because the store claims they are not responsible, because there is often more to the story.Examples of slip and fall cases that our firm is handling or has handled:
Our client slipped on water at a Publix grocery store and tore her meniscus. The water was spilled by an employee and surveillance showed that there were employees in that area who had ample opportunity to clean up before the client’s fall.
A man slipped on spilled milk in a Kroger frozen foods aisle and broke his elbow. Video confirmed the fall itself and showed that aisle inspection had not occurred for several hours before the incident.
When entering a local Walmart, a woman tripped on a door mat and suffered from torn shoulder ligaments, resulting in surgery. Eyewitness statements revealed that the old door mat edges had been turned up for weeks without being adjusted.
Client entered a Publix and the ice cream delivery man had spilled ice from the delivery without cleaning it up. On the surveillance camera, we see the client fall minutes later. The liability there probably lies with the active negligence of the delivery man in spilling the water and failing to clean it up. Publix has too little time to do anything about it. That is a good example of common sense and the law, standing shoulder to shoulder.
Client was walking out of the men's restroom at a mall when he slipped and broke his hip because of liquid on the floor. The man reached us early so we were able to send letters to the mall to preserve the security camera footage showing the incident.
Typically the way a property owner will attack responsibility is to argue:
- We did not cause the spill.
- There was no spill
- You fell because of your choice of footwear
- We did not know about the spill and could not have cleaned it up.
- We have a reasonable inspection routine and fulfilled our duty.
- You were not looking where you were going.
Of these defenses, the most powerful on is 4. The law says the property owner either must know of the spill or should have known of the spill. In places where a property owner has reason to expect liquids and spills, like restrooms and food courts, property owners have a duty to put in place reasonable inspection routines. Generally that means the property owner should expect to patrol every 20 minutes or so. If they fail to do that, then the Court will find that the lack of a routine creates an issue for the jury to decide on whether the mall would have found the spill had they made a regular inspection.
In this case, the store video showed two important things. 1) It clearly showed the client falling hard and in a way that made it appear that there was liquid on the floor. 2) A customer slipped in the same spot only 30 seconds before. This establishes proof positive that there was something on the floor and that the client did not just fall on his own. So the tape kills defense 2 and 3.
So the next question is can the store get the case thrown out on a motion based on 4 or 5? If the video tape from earlier in the day shows proof that there is or is not an inspection routine or when the spill actually occurs, this will drastically affect the outcome of the case.
The tape does show that a security guard was in the area and the incident report shows that he actually saw the fall happen. Given that there is an agent in the area of the spill the law in Georgia will allow us to argue that the agent should have seen the spill.
We will continue to update as this case goes along.Final Notes about Trip and Fall Liability
Most people understand that trespassers have very few rights when they enter someone’s property. Most property owners understand that their only duty towards trespassers is not to “willfully or wantonly” hurt them. However, there is a key exception to this rule that you may not have heard of: the attractive nuisance doctrine. The best example of this doctrine is probably a neighborhood swimming pool. Because most people are aware kids love to swim, it makes sense that they might trespass on someone’s property to access a pool. After a local child died from trespassing and swimming in a local pool, the Appellate Courts considered how to determine what precautions should be taken. Ultimately, they determined that property owners are not responsible, as long as they make a reasonable effort to prevent trespassing, like putting up a strong fence. After all, what else is a property owner supposed to do?
But does this mean that it is impossible to win such a case? Definitely not. I have handled many cases that may have seemed impossible at first, including a case involving a gate that had been left unlocked and broken so that any child could have gotten in easily. Another case involved a child who died while trying to play on an exercise machine inside his apartment’s gym. In that case, we were able to show that access was not properly controlled, meaning that the property owner was in fact responsible.
Another important category to understand is the “licensee”. Any property owner is legally required not to expose a licensee to “wantonly and recklessly” to dangers that are not obvious.
Common examples of licensees include door-to-door salespeople and any kind of social guest.
Above all, the law reserves the most protection for people called “invitees”.
Rather than just refraining from causing harm, property owners are required to exercise ordinary care with invitees, such as keeping the property safe. Some examples of invitees are shoppers in stores, people who are hired to do work on someone’s property, and other people who enter property in order to benefit both owner and guest. Our office has seen many cases involving invitees who were shoppers at Kroger, Publix, and Family Dollar. While I frequently have conversations with potential clients who have been injured in these stores, after exploring the details of the case I often have to advise them that their claim is simply not legitimate. Both Slip and Fall and Trip and Fall cases are more complicated than they might appear, and if you are talking to lawyers, before hiring one you need to make sure that he or she is being realistic with you.Important Legal Points
Under a premises law analysis, the starting point is the legal status of the injured party. Trespassers are usually out of luck, barring mantraps and whatnot, so these two are the real players:
OCGA Sec. 51-3-1 Invitees (Better)
OCGA Sec. 51-3-2 Licensees (Worse)
- A social guest of an apartment tenant gets treated as an invitee. 294 Ga. App. 764
- Once you know the licensee is there, they get the same legal protections as an invitee. 251 Ga. App. 46
- Owner may assume you see static conditions (potholes and the like)
- If the danger is open and obvious and you can easily see it, you cannot sue them.
- If you are distracted or your view is blocked, you have a chance.
- An example would be pushing a grocery cart through a parking lot. Zack's Properties, Inc. v. Gafford, 241 Ga.App. 43 (1999)
I broke my leg playing basketball at the gym when I slipped on a wet area. Do I have a claim against the gym?
Probably not for two reasons:
- Most gyms make you sign a waiver of liability. These are enforceable in Georgia and unless the gym or club did something extreme, you cannot file suit. Remember this applies to Country Club Memberships, Gym memberships and many other scenarios.
- Even if you did not sign the paperwork, you still have to prove that the moisture came from a source other than the players on the court with you and that it had been there for a sufficient time for the gym to clean it up.
We have said it many times, you cannot walk blithely through this world if you know of a danger and expect to be able to sue the one time your forget to avoid the danger. Is is terrible that they left the cable out? Sure, but you cannot sue them for it.
It is common sense that if someone is aware of a possible hazard, he or she should make an effort to avoid being injured by it.
Nevertheless, should a careless person who creates a hazard be immunized from liability simply because the injured person had evaded an accident on a prior occasion? This question was at the center of Charter Communications (DE), Inc. v. Berwick, a recent decision from the Georgia Court of Appeals.The defendant in Berwick was Charter Communications, Inc., a business that provides cable television service throughout Georgia. Among Charter’s customers were the neighbors of the plaintiff in this case. In order to provide cable service to the plaintiff’s neighbors, Charter ran an orange cable across the plaintiff’s driveway.
The cable had a little slack, which allowed it to move up to two feet. On an evening in July 2012, the plaintiff was carrying a picture frame measuring about three feet by three feet out to a recycling bin. It was about midnight, but the street lights and the plaintiff’s porch lights were illuminated. The plaintiff successfully stepped over the cable with her right foot, but her left foot got caught. Although the plaintiff did not fall, stress associated with the jolt caused the glass pane of the frame to break. One piece of glass cut the plaintiff’s right ankle, severing a tendon, which required surgery. At the time of the accident, the cable had been traversing the driveway for 19 months, and the plaintiff admitted that she knew of the cable's location, had driven over the cable on many occasions, and had stepped over the wire at least once a day on average.
Following the accident, the plaintiff brought suit against Charter, alleging negligence and negligence per se. After the close of discovery, the defendant moved for summary judgment. The trial court denied the motion, which ultimately led to the current appeal.
On appeal, the Georgia Court of Appeals found that the trial court's denial of summary judgment in favor of the defendant was in error and reversed. As an initial matter, the Court of Appeals noted that possible negligence here did not sound in premises liability but instead in traditional negligence, for potential liability was not “premised on ownership or control of the premises.” Fitzgerald v. Storer Cable Commc’ns, 213 Ga. App. 872, 873 (1994). To establish traditional negligence under Georgia law, one must establish three elements: (1) “the defendant had a legal duty to protect the plaintiff from a foreseeable risk of the alleged harm”; (2) the defendant’s act or [failure to act] breached this duty”; and (3) “there [was] a causal connection between the defendant’s [act of failure to act] and the alleged injury.” Id.The first two elements were not in dispute.
However, under Georgia law, causation cannot be established when “a person has successfully negotiated an alleged dangerous condition on a previous occasion” because “that person is presumed to have knowledge of [dangerous condition] and cannot recover for a subsequent injury resulting [from it].” Sudduth v. Young, 260 Ga. App. 56, 60 (2003).
In this case, the plaintiff had long been aware of the cable’s presence, and therefore the Court of Appeals ruled that the plaintiff could not establish causation. Compare Fitzgerald, 213 Ga. App. at 874 (holding that causation could not be established because the plaintiff had been aware of the cable causing the injury for 20 months prior to the accident and failed to exercise ordinary care to avoid the cable at the time of the injury) with Murphy v. Wometco Cable TV of Fayette Cnty., 478 S.E.2d 398, 400 (1996) (holding that a genuine issue of material fact as to causation existed when the evidence did not conclusively establish that the wire over which the plaintiff tripped was plainly visible, and the plaintiff testified that she was sedentary and accordingly only saw the wire on a couple of occasions prior to her fall). Likewise, the Court of Appeals found that the negligence per se claim was unviable because even if the defendant violated a local ordinance regulating the placement of cable wires, the plaintiff’s “equal knowledge of the hazard . . . still entitle[d] [the defendant] to summary judgment.” Norman v. Jones Lang LaSalle Americas, 277 Ga. App. 621, 629 (2006). Accordingly, the Court of Appeals concluded the trial court erred in denying the defendant’s motion for summary judgment.
It is interesting to note that the evidence, at least as described in this Court of Appeal’s recitation of the facts, did not seem to suggest that the plaintiff failed to act with reasonable care when traversing the cable, as the plaintiff in Fitzgerald did. Nevertheless, the Court of Appeals ruling shows that the law is quite unforgiving when someone knows of the hazard leading to his or her injury. Negligence cases, even if they seem simple on their face, are never as straightforward as one would imagine. Folks that are hurt as a result of possible negligence should consider finding experienced counsel to help them traverse the legal hurdles that may arise. The Atlanta premises liability attorneys at Christopher Simon Attorney at Law have considerable experience representing Georgia residents injured as a result of property hazards, and they are ready to help you with a possible claim. Indeed, if you’ve recently been injured as a result of another party’s possible negligence, feel free to contact us to arrange a free case consultation to discuss the viability of your claim.Negligent Security Appellate Issues
When a hospital is a defendant in a lawsuit, we often believe that medical negligence will be at issue. However, hospitals can encounter liability for a variety of different issues. For instance, the Georgia Court of Appeals recently rendered its decision in Medical Center Hospital Authority v. Cavender, which consolidated appeals of several different trial court decisions arising from a multiple homicide at a Doctor's Hospital in Muscogee County, Georgia.
The plaintiffs in these cases brought negligence suits premised on negligent security theories against various defendants.Viewed in the light most favorable to the plaintiffs, the facts are as follows. Securitas Security Services USA, Inc., one of the defendants, provided security services to Doctor’s Hospital, another defendant, pursuant to a security agreement. Per this agreement, Securitas provided annual security surveys to Doctor’s Hospital, which “assess[ed] the efficiency of the security" provided. In February 2008, The Medical Center Hospital Authority, the third defendant, took ownership of the Doctor’s Hospital campus and entered into a management agreement with Doctor’s Hospital to manage the day-to-day operation of the hospital.
The hospital was required, per obligations from the the Joint Commission on the Accreditation of Healthcare Organizations, to maintain security policies and procedures for security.Prior to the Hospital Authority’s acquisition, it adopted a security policy manual, which included a section defining 18 crimes, both violent and nonviolent, that hospital security “are likely to be called upon to prevent” and “most likely to encounter.”
In March 2008, a shooter carrying two handguns visited Doctor’s Hospital and proceeded to the fifth floor. He returned on two more occasions on the same day, going to the fifth floor both times. On his third trip to the fifth floor, a nurse asked if the shooter needed assistance, which he declined. The shooter then saw a doctor, whom he followed. The shooter asked the doctor if he remembered him and his mother and then shot the doctor. The shooter then shot or assaulted several other victims. The lone Securitas guard on duty at the hospital that day was in the parking lot on patrol when he got a warning about the shooting taking place. The shooter was unable to enter the ER and walked to the parking lot, where the Securitas officer told others to take cover. The shooter shot another person in the parking lot before law enforcement arrived and proceeded to exchange gunfire with the shooter. The shooter was eventually apprehended.
In the current appeal, the Court of Appeals addressed whether the denial of summary judgment was appropriate in two wrongful death cases and a personal injury case brought by, or on behalf of, several people harmed against Securitas, Doctor’s Hospital, and the Hospital Authority.
Under Georgia law, a plaintiff in a negligence suit, including a negligent security suit, is required to prove the following four elements: (1) duty, (2) breach of duty, (3) causation, both direct and proximate, and (4) resulting harm. Brown v. All-Tech Investment Group, 265 Ga. App. 889, 893 (1) (2003). At the summary judgment stage, the plaintiff has the burden of showing that there are issues of material fact with respect to these elements, necessitating a trial on the issues. Generally, it is difficult to prove duty and causation in negligent security cases because “a property owner is not an insurer of an invitee's safety, and an intervening criminal act by a third party generally insulates a proprietor from liability” except when the “criminal act was reasonably foreseeable.” Ratliff v. McDonald, 326 Ga. App. 306, 312 (2)(a) (2014).
Therefore, a property owner will typically not owe an invitee a duty of reasonable care to prevent a third party’s criminal act unless he “has reason to anticipate [the] criminal act.” Days Inn of America v. Matt, 265 Ga. 235, 236 (1995).In resolving whether there was were issues of material fact related to duty and causation in this case, the court noted that a duty of reasonable care typically does not encompass “a duty to anticipate unlikely, remote, or slightly possible events,” McDaniel v. Lawless, 257 Ga. App. 187, 189 (2002), but that foreseeability of criminal acts may be found from “analyzing whether the property owner has notice of substantially similar prior criminal acts,” Sturbridge Partners v. Walker, 267 Ga. 785, 786 (1997). For a crime to be “substantially similar,” it must be “sufficient to attract . . . attention to the dangerous condition which resulted in the litigated incident." Id. at 786 (punctuation omitted). If the crimes relied upon are not substantially similar, they are, as a matter of law, insufficient to create an issue of material fact with respect to foreseeability.
In opposition to summary judgment, the plaintiffs relied on prior police reports to Doctor’s Hospital and a neighboring Medical Center facility between 2002 and the day of the incident in order to demonstrate the foreseeability of the shooter’s rampage. However, as the appeals court noted, none of the 11 reports from Doctor’s Hospital was in response to a multiple homicide, a single homicide, a shooting, a weapon, or a significant injury. Likewise, of the 32 reports from the neighboring Medical Center, only two involved the use of a weapon. Both were armed robberies in the parking lot that occurred more than five years prior to the mass shooting, and neither involved the actual discharge of a weapon. The court concluded that these two armed robberies were, as a matter of law, both too remote and dissimilar from the criminal act at hand to create a question of material fact with respect to whether the defendant could foresee the shooter’s homicidal rampage.
Beyond the foregoing, a plaintiff has a responsibility of establishing that the defendants had knowledge of the criminal acts that it seeks to use to establish foreseeabilty. Baker v. Simon Property Grp., 273 Ga. App. 406, 407 (1). Here, the Court concluded that the plaintiffs failed to proffer any evidence sufficient to establish the defendants had knowledge of the criminal acts at issue. Indeed, under Georgia law, the existence of a police report, standing alone, does not establish that a defendant has knowledge of a criminal act. See, e.g., Scott v. Housing Auth. of City of Glennville, 223 Ga. App. 216, 217 (1996) (concluding that it is impermissible to assume that a defendant had knowledge of a criminal act simply because that act was investigated by the police).
Next, the court found that testimony provided by a security expert was similarly unavailing at establishing a question of material fact. The expert’s testimony posited that the shooting was foreseeable because there had been an increase in the occurrence of hospital shootings and violent confrontations between patients or their family members and healthcare workers. The court found this evidentiary submission too general to establish a question of material fact. Indeed, reliance on general statistics, without specific events that would tend to raise the attention of those being charged with failure to secure, is insufficient to create an issue of fact. See Agnes Scott College v. Clark, 273 Ga. App. 619, 622-23 (2005). In addition, the expert failed to directly address the particular criminal history at the site at issue, which further undermines the value of the testimony in establishing a question of material fact. See, e.g., Sturbridge, 267 Ga. at 786.
Accordingly, the Court of Appeals concluded that the plaintiff had failed to meet the burden at summary judgment of showing that a question of material fact existed as to all the predicate elements of negligence, and thus the trial court erred in not granting the defendants’ motions for summary judgment. The court addressed certain arguments specific to Securitas and reversed with the instruction that judgment be entered in favor of the defendants.As this decision highlights, negligent security liability is often difficult to establish, given the law's reluctance to impose liability on others for failing to prevent a third party’s criminality. Accordingly, one who has been harmed as a result of a party’s possible failure to provide adequate security should consult counsel with considerable experience litigating these types of claims. The Georgia premises liability attorneys at Christopher Simon Attorney at Law have experience litigating cases presenting these and similar issues in both state and federal court and are prepared to evaluate your possible claim. Feel free to contact us if you are interested in a complimentary case consultation.