On May 4, 2011, the Plaintiff as walking into the Kroger store, one that she had multiple times before. At the time of her fall, she was wearing “chunky heels” that were approximately two inches high when her foot “got caught” and she fell flat in the store, injuring herself. Taking a closer look, it was noticed that there was a “little groove” in the sidewalk just outside of the entrance right next to a metal plate at the base of the doors. Testimony established that the groove was approximately half an inch deep and approximately a quarter-inch wide.
Plaintiff did testify that she didn’t notice the groove before falling and could have seen the groove had she been looking at the time of the fall.
In response, the Kroger presented evidence that it lacked knowledge that the groove was there, why it was there, or that anyone else had fallen as a result. Kroger also claimed that it should not have known about the groove.
Why Did the Court Dismiss the Plaintiff's Case?
The Court found that the groove did not present an dangerous condition. Essentially, the Court found that, unless something unique is presented, general defects in walkways is not enough to find a defendant need to do something to fix the defect or warn its customers of such defect.
The Court went on to find that Kroger did not know about the groove. In fact Kroger expressly stated it had no idea of the groove.
What’s more the Court went on to state:
“Simply put, the Plaintiff’s own opinions and conclusions are no substitute for evidence of how and when the allegedly dangerous crevice developed. Plaintiff’s reliance on her own statements amounts to mere speculation and conclusory allegations.”
You Must Prove 4 Things in a Slip and Fall Case in Virginia:
- You must have fallen due to a dangerous condition.
Keep in mind, that doesn’t mean that the store (or other establishment where you fell) has to keep its premises in a perfect condition. Inherently, there will be flaws at any location. Heck, think about your own living room! (No offense, if you saw my living room, the whole room is a dangerous condition!)
In understanding what exactly a dangerous condition is, we look at previous decisions by Virginia courts. Dangerous conditions have been found to be for instance wet or slippery substances, or unexpected objects laying on the floor. What has been found to NOT be dangerous conditions are irregularities in sidewalks. In fact, it’s been found that a depression of a concrete expansion joining 3 inches long, 4 inches wide, and 1 inch deep did not constitute a dangerous condition!
- The Store must have known or should have known of the dangerous condition.
It's not enough to assume that your fall was due to a dangerous condition. You still must be able to prove in court that the store (or wherever you fell) knew or should have known of the dangerous condition. There are two ways this is defined:
- "Actual Knowledge"
Actual knowledge is exactly what it sounds like. It means that you must show that the storeowner, manager, or some other agent actually knew that the condition was there. Statements like “I meant to clean that up,” or the like is what you’re looking for.
- Should have known (“Constructive Knowledge”)
In the event that no store representative will admit to knowing about the condition, you must prove the store should have known about it. What exactly this means is very difficult. In the Jefferson case, the Plaintiff tried to argue that it was apparent that there was a previous attempt to fix the groove but that the filling had eroded over time. But she offered no evidence of that except her own testimony. The Court went on to discuss a previous case in which a Plaintiff fell over an empty soda bottle. In that case, the Court found against the Plaintiff because there was no evidence should have known about the bottle because there was no evidence as to how and when it got there. As you get a sense, if your case lacks an statement of actual knowledge on part of the store, the Court will hold you to the fire so to speak, and will not think twice about dismissing your claim if the circumstances are right.
- "Actual Knowledge"
- Proximate Cause – You must be able to specifically articulate how you fell.
While not really focused upon in dismissing this case, the Court did make a point to consider the Plaintiff’s testimony as to how she fell. In essence, the Plaintiff states that she must have fallen over the groove because her foot “caught” something. The Court did not find that was enough because she couldn’t say with certainty exactly how she fell. If you cannot say exactly how you fell, your case will be very difficult.
- You must have not contributed to your fall – at all.
Virginia imposes a law called contributory negligence. Under contributory negligence, if you are found to be even 1% at fault for the accident, you don’t recover. That means if you weren’t looking where you were walking, you were on your cell phone, or you were doing something else distracting, the defense will argue that you contributed to the accident by not being aware of your surrounding. While you may think that’s ridiculous, be fully aware that that is the law in Virginia. Many cases have been lost on this point.
What Should You Take Away from This Article?
If you’ve been hurt in a slip and fall accident, this is the analysis that will need to take place to determine if you have a case. As you can see, the cards are stacked high in Virginia. Personal injury litigation is costly and time consuming. So before you decide you want to file your claim, you need to consult with an attorney and be able to answer YES to ALL of these questions.
If you have questions about a potential slip and fall or other injury case, call our team of experts at BenGlassLaw. We can be reached at (703) 584-7277.
You can also read more about the Jefferson v. Kroger Case here.
If you would like to learn more about the personal injury claims process, we have a free book about personal injury cases in Virginia which you can download right now.