The State of Slip & Fall Litigation In Virginia

I've received quite a few questions about slip and fall cases recently. I blogged about it the other day in "Trip and Fall Lawsuit Against Food Lion Allowed to Proceed " and "I Slipped At the Grocery Store and Injured Myself, Can I Recover? " but I wanted to dig into it a little bit deeper. In the first article I discussed a recent ruling in which a Judge remanded the case to court rather than award summary judgment. In that case a grandmother was using an ATM at a Food Lion when her grandchild started moving away. While moving to collect the child, the woman tripped over a black metal railing sticking out from behind the ATM. She fell and fractured several bones. The operative language in that case was "open and obvious" as the two sides debated whether or not the rail was or was not so. The judge determined that reasonable people could differ on that fact and thus deemed it a matter for trial. The second blog was focused on grocery stores and generalities for those cases. I wanted to take a look at some more general slip-and-fall cases.

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There are several other cases, not as recent but still as applicable, that deal with slip and fall liability and it's standing under the law. I'll stick with Virginia cases. It's often said that Virginia is among the most unfavorable states in the country towards people injured in slip-and-fall accidents. In truth, Virginia actually has a comparable standard to most other states and that is the "open and obvious" clause, whether or not the defendant was negligent, and whether or not the plaintiff was contributorily negligent. If any of these questions go the way of the defense then your case won't fly.

As an example, I'll use the 1997 case of Davis v. Spotsylvania Mall Company. Ms. Davis was walking along one of the concourses in the mall when she slipped, fell, and suffered several fractures. The reason for her fall was a three-inch wide glob of ketchup or barbeque sauce. The first question was whether or not the hazard was "open and obvious." In this case, the condiment spill had dried on the outside and was a dark red which is important because it was located on an off-white floor with specks of several colors including dark red. According to the plaintiff this camouflaged the stain making it open but not obvious. This view is backed by witness testimony from a kiosk employee who had worked for three hours in close proximity to the spill without noticing it.

The second question is whether or not the Spotsylvania Mall Company was negligent. Several factors come into play when answering this question. First, the area in which the spill was located happened to be in front of several fast food restaurants that sold ketchup and barbeque sauce. Second, there was no evidence that the area had been patrolled either by security or cleaning staff since the morning while the accident occurred around 2:45 PM. And third, the outside of the stain was dry and crusty, further implied that it had been there for a long period of time. The judge in this case determined that the company was negligent because they had not patrolled an area that would seem at risk for spills since the morning and if it was patrolled it was done so poorly.

The final question is whether or not Ms. Davis contributed to her injuries. Ms. Davis could have contributed by being distracted, being in a hurry, or anything that would make her susceptible to the accident when others would not have been. The defense attempted to claim that Ms. Davis was contributorily negligent because she was "not noticing the floor," a quote from her own testimony. However, the Judge in the matter determined that it is not normal to watch where you put your feet while walking and that this is what Ms. Davis was implying. All three of the answers to the these key questions go for the plaintiff in this case and thus she was awarded for her medical expenses and pain in the amount of $100,000.

However, this is not often the case and I will use the 1994 US District Court, Eastern Virginia District case of Kellam v. Wal-Mart Stores Inc. as an example in opposition to Davis V. Spotsylvania Mall Company. In the case of Kellam she was walking into a Wal-Mart location in Norfolk while it was raining. Upon entering the store Ms. Kellam slipped and fell, sustaining moderate injuries. The first question of "open and obvious" is difficult to answer in this case because of the fact that it was raining and that there were "Caution: Wet Floor" signs around the area along with a greeter who supposedly warned patrons to "watch your step." For these purposes we can call this point a tie.

The second question of whether or not the defendant was negligent is also difficult to answer. What could Wal-Mart have done to prevent the accident? Did they do what they could to ensure the safety of their consumers or did they neglect them? It is a fact that rain happens and water gets everywhere when it does rain. Here, one could argue that Wal-Mart did not do enough or that it was simply an unfortunate incident that even the best laid preparations and warnings could not prevent. Once, again we can call this question a draw.

With the first two questions answered as ties, it comes down to the third question of contributory negligence. According to the judge, there is no evidence that the floor was wet before Ms. Kellam fell. In fact, it is very possible that the plaintiff tracked in the water that she claims to have slipped on and that her choice of footwear (rubber soled sandals) contributed to her lack of traction. One of the questions that arose in the trial was when the caution signs were placed. Ms. Kellam says they were placed after her fall and thus Wal-Mart did not adequately warn her of the danger. The judge responded that the defense's approach was more likely in that the floor was not wet until the plaintiff fell onto it wearing her rain jacket, thus the sign was put up afterwards. This question, and the case, goes to the defense because the plaintiff most likely caused her own fall by her choice of footwear and by tracking in the water that caused her to fall.

These two cases may seem similar from the basic facts but they had two very different outcomes. When considering your slip-and-fall case remember the three important questions to ask yourself. Is the hazard open and obvious? Is the property owner or manager reasonably negligent? And how might I have been responsible for my accident? If you can't answer these questions for yourself, or if you can and have determined your accident is worthy of litigation, I encourage you to consult with an attorney.

Ben Glass
Ben Glass is a nationally recognized Virginia injury, medical malpractice, and long-term disability attorney