Premises Liability: Burden of Proof in a Slip and Fall Case

Premises Liability: Burden of Proof in a Slip and Fall Case

Video Transcript –

Hi, I am Mark Cantor. Today I want to talk to you aboutpremises liability, commonly called slip and falls. Let's say you are at a gas station and you slip and fall on oil or grease or some dangerous condition on the ground. What is your remedy? Can you sue and recover money? The answer is that you can always sue. The difficulty is in the recovery of money. You must prove that the landowner knew or should have known about that dangerous condition of property.

So how do you do that? You look at, in this case, Missouri approved jury instructions which is your reference guide of what a trial lawyer must prove. This commonly happens in a grocery store; we have one of those now with a slip and fall. Or, at a gas station. Or, it is November 14th, 2014 and it snowed. So it may be that there was a dangerous condition of ice that had frozen, but if it is a natural condition like snow that everyone sees then it is going to be hard to establish liability.

The Missouri approved instructions say that your verdict must be for the plaintiff if you believe (and I am reading to you 22.03 from the Missouri Approved Instructions) first that there was a, in this case, oil or a banana peel or liquid on the floor of the defendants store and as a result the floor was not reasonably safe. Second, the defendant (could be the grocery store or the gas station) knew or by use of ordinary care could have known of this condition. Third, the defendant (again the grocery store or the gas station in this example) failed to use ordinary care to remove or barricade or warn of this dangerous condition. And fourth, as a direct result of such failure, the plaintiff (which is you) sustained damages.

Now the defense is going to say "Wait a minute, it was an open, obvious condition of property. That the plaintiff (you) should have seen by using ordinary care that the condition was there. And had you used ordinary care and kept a careful lookout, you wouldn't have fallen. And that your failure to keep a careful lookout directly caused or directly contributed to cause your injuries." And that is what they are going to use for what is called a comparative fault. And that is MAI 32.28.

So there is always a conflict in these cases. Was there a dangerous and hidden condition of property that caused you to fall? Frequently I have people that come into my office and say "I fell and therefore they owe me money. I fell and I broke my leg." Well they were also drinking and drunk and they tripped on their feet. Just because you fell doesn't mean you win the case. You need to show that the landowner knew or should have known of that dangerous condition and failed to act. They didn't warn you or barricade it.

So if it is snowing out, like it did over the weekend, and the landowner doesn't shovel their driveway at all, they do nothing, and you walk on that unshoveled driveway or sidewalk and you slip and you fall and you break your arm, you are going to want to say "Look, they were negligent." But they weren't negligent. They didn't do anything. They didn't undertake a duty to clean the sidewalk and then do it improperly. The way you win those cases is if they shovel part of the sidewalk and salt part of it and there is black ice, but they didn't shovel the part of the sidewalk you slipped and fell on. Well then maybe you have a case because they cleaned the sidewalk but they did it negligently. They didn't do it well enough to prevent your injury and it created a dangerous condition of property that you didn't know of and that they knew or should have known of.

At our law firm Cantor and Associate, Mark Cantor have handled these cases for years and years very successfully. It is very important to do the analysis at the beginning of the case to analyze whether or not it was a dangerous hidden condition of property before we can accept the case and proceed. Now a lot of these stores we are finding have videos, but the defendant won't provide the video until you file a lawsuit. So you know what? We file a lawsuit and we get the video and we take a look at it. I have sued a lot of places for dangerous and hidden conditions of property, but only if it is a dangerous and hidden condition of property. If there is an open and obvious step and you miss it and you fall, if your shoe laces are untied and you step on your feet and fall, well I am sorry but that is not a case. If you are texting and walking and you walk into a pole, there is no case.

But, if you are walking carefully and there is a condition there that you did not see, even when you are looking, like clear soap on the ground — I had a jury trial on this. A woman went into a store bathroom. She went to the restroom and when she stood up to walk out, she slipped and fell. Well the hand soap had leaked off the wall and pooled on a greenish colored floor. Well the soap itself was green and when she stood up, her foot was in that soap and she slipped and fell and herniated a disc in her back. The defense was that it wasn't a dangerous condition and even if it was we didn't know about it because it just happened. But, the jury in St. Louis city did not agree and I got a jury verdict. In that case, I actually bought some of the soap and I poured it on the floor and showed the jury that you cannot see the soap, it is a dangerous and hidden condition. The jury agreed.

I had another case, my very first jury trial in Jefferson County. It was a girlfriend and boyfriend - the girlfriend's washing machine was hooked up by the landlord to discharge the soap onto the grass. The boyfriend went out with his lawnmower and he was mowing the lawn and slipped on that soapy water and accidentally pulled that lawnmower up over his foot and it cut off his toe. It was a bad injury and I was a new lawyer and I tried the case. The jury, I am sorry to say, got it right. The person lived there and knew of that dangerous condition. They knew that the soapy water was discharged. He shouldn't have been out there mowing the lawn on top of the soapy water. He should have shut off the device before he mowed the lawn.

Let me tell you something: you remember your losses very, very well. You learn from them, and I did. If you have a premises liability case, if you have a slip and fall case, if you are in a parking lot that is not lit and you trip on something that you legitimately did not see, then I will help you. I have a case right now where a woman went into a bathroom. She was in the bathroom for a few minutes and when she came back out, the gas station attendant had mopped the floor in front of the bathroom, but did not put a warning sign, so she opened the door and walked out the same way she had walked in. She slipped and fell and needed to have knee surgery with a knee replacement. I will try that case because I have it on video. We secured the video in what is called discovery. And I believe my client, she didn't know about that condition and she wasn't adequately warned about that condition. The worst we can do in that case is lose because they are not offering any money, but I don't think we are going to lose, I think we are going to win because that is what a dangerous condition of property is - she didn't know it was soapy and wet. There were no warning signs.

Again, if we can help you, I know this is a little long, but I wanted to go through it and talk about the jury instructions. There are obvious other complex evidentiary issues in the trial. Thank you for watching and for tolerating my November mustache. I am Mark Cantor. This is Cantor and Associate. Call us at (314) 542-9999. Thanks for watching.

POSTED IN: Insurance Claims Mark's Post Slip and Falls St. Louis Personal Injury Attorneys

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