Slip and falls
Slip and Falls
“Slip and fall” accidents can occur in public spaces, supermarkets, department stores, or even on private property. Property owners owe their patrons an affirmative duty to make their premises reasonably safe for its guests, including correcting a hazard or warning of its existence. Property owners are required to not only address visible hazards but also make apparent hidden dangers or hazards. Under California law “property owners are under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619 [264 Cal.Rptr. 756].)
“To comply with this duty, a person who controls property must ‘ “ ‘ “inspect [the premises] or take other proper means to ascertain their condition” ’ ” ’ and, if a dangerous condition exists that would have been discovered by the exercise of reasonable care, has a duty to give adequate warning of or remedy it.” (Staats v. Vintner’s Golf Club, LLC (2018) 25 Cal.App.5th 826, 833 [236 Cal.Rptr.3d 236].)
Notice of Unsafe/ Defective Condition
The most common pitfall with “slip and fall” cases is establishing whether the property owner had prior notice of the defective or unsafe condition and therefore had a reasonable opportunity to remedy it prior to the incident. Property owners will commonly argue that someone else caused the defective condition (i.e. another supermarket patron spilled a drink which someone subsequently slipped) and that there was insufficient time to remedy the condition so as to avoid injury. There are two ways to establish “notice” of a defective condition, actual or constructive notice.
Actual notice
Plaintiff can establish actual notice in situations where the owner, or its employee in the course of employment, created the dangerous condition. “Where the dangerous or defective condition of the property which causes the injury has been created by reason of the negligence of the owner of the property or his employee acting within the scope of the employment,” notice is imputed. (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 806; see also CACI Nos. 1003 & 1012 (2012 Ed., Dec. 13, 2011).)
For example, in the cases of boxes left out by a store owner in the middle of an aisle, a spill by an employee, or where an owner removes a fixture but leaves part of it, or debris, behind, the owner cannot claim it did not have notice of the situation. In those situations, actual notice exists.
Constructive Notice
The plaintiff can also establish the owner’s notice through “constructive notice.” (Ortega v. Kmart Corp., 4th 1200, 1205 (2001). One way to establish constructive notice is to argue that the owner failed to make reasonably regular inspections, which thus raises an inference that the hazardous condition existed long enough for the owner to have discovered and remedied the situation. (Id. at p. 477.)
The duty to inspect is continuous, and inspections should be conducted frequently. (Ortega, supra, 26 Cal.4th at pp. 1206-07.) To exercise a degree of care that is commensurate with the risks involved, the owner must make reasonable inspections of the portions of the premises open to customers. (Id.at p. 1205; Moore, supra, 111 Cal.App.4th at p. 476.)
In order to receive the full value of your case it is vital to have an experienced personal injury attorney to aggressively seek documents and depositions to discover when and how inspections were done. This includes not just sweep sheets, but also policies, procedures, and manuals on safety and inspections, as well as video of the area of the incident for any number of hours before the incident. These documents provide a roadmap showing how the defendant failed to follow its policies and procedures and how, had it simply followed its own rules, the dangerous condition would have been discovered and the plaintiff would have never been injured. We have successfully litigated cases on behalf of injury victims for “slip and fall” or “trip and fall” incidents against major retailers including Wal-Mart, TJ-Maxx, Ross Stores, Ashley HomeStore, BJ’s Pizza, The Cheesecake Factory, Vons, Food4Less, Ralphs, El Tapatio Markets, Wholesome Choice, Rite-Aid, Home Depot, 99 Cent Store, and Target.
Why was my claim denied?
There is a wide array of reasons why an insurance carrier may deny your claim. California’s Fair Claims Settlement Practices Regulations (Cal. Code Regs. tit. 10 §2695.7) mandates the following with respect to insurance companies’ duties: ***(d) Every insurer shall conduct and diligently pursue a thorough, fair and objective investigation and shall not persist in seeking information not reasonably required for or material to the resolution of a claim dispute. ***(e) No insurer shall delay or deny settlement of a first-party claim on the basis that responsibility for payment should be assumed by others, except as may otherwise be provided by policy provisions, statutes or regulations, including those pertaining to coordination of benefits. ***(g) No insurer shall attempt to settle a claim by making a settlement offer that is unreasonably low.
An insurance carrier is required, in writing, to formally state the reasons for denial. Typically an insurance carrier will deny a claim for lack of a finding a liability. This is where they find that their insured did not cause the incident for which you are claiming injury. Another common scenario is where the insurance carrier will find that their insured is legally responsible for causing the incident (i.e. a rear-end accident) but that the incident did not cause your injuries (i.e. insufficient force to produce injury). There may be instances where an offer is made but is not in line with the amount of damages you claim. In this circumstance, the insurance carrier has determined that your expenses are unreasonably high in proportion to what is reasonable for the circumstances. It is important to note that the insurance carrier’s evaluation of your case value is not a determinant of the actual value of your case.
An experienced personal injury attorney will conduct a thorough evaluation of your claim and submit the correct demand to the insurance carrier. Ultimately if the parties are unable to come to an agreement as to case value the case will proceed through the litigation process where a jury or arbitrator will render a decision as to case value. Our office litigates over 85% of our claims. We find that engaging in formal discovery and fleshing out the facts ultimately leads to higher recoveries for our clients. We frequently retain experts to help develop our case for liability and injury.