Just what are the rules when someone slips and falls on a slippery substance or because of some defect in the flooring or sidewalk? Who is responsible?

Someone who owns the premises or otherwise has responsibility for a floor or sidewalk has a duty to use reasonable care to keep the walkway safe. If they fail in that duty, they are negligent and may be responsible. The failure typically takes place in one of two ways. Either the person responsible for the walkway has created a dangerous condition (by perhaps leaving debris in the way or creating a hole or depression.) Another way that a person may be responsible is by failing to maintain a safe premises by, for example, failing to clean the premises or remove snow in a timely manner.

Often, however, the case revolves around whether the victim exercise due care for their own safety. Thus, if they fail to see a condition that is "open and obvious" and they get hurt they may be barred from recovery. Virginia follows the doctrine of "contributory negligence." According to Virginia law, contributory negligence is an affirmative defense that must be proved according to an objective standard whether the plaintiff failed to act as a reasonable person would have acted for his or her own safety under the circumstances. The essential concept of contributory negligence is carelessness. The issue whether a plaintiff is guilty of contributory negligence is ordinarily a question of fact to be decided by the fact finder. The issue becomes one of law for the circuit court to decide only when reasonable minds could not differ about what conclusion could be drawn from the evidence.

When the plaintiff's injury is caused by an open and obvious dangerous condition, the plaintiff has to show conditions outside himself which prevented him from seeing the dangerous condition or which would excuse his failure to observe it. In other words, when the plaintiff was distracted and suffered injuries from an open and obvious defect, an issue of whether the planitiff has contributory negligencecan now be created for the jury. However, “‘more is needed than a simple allegation of a distraction to create a jury issue. It [is] necessary for [the] plaintiff to establish that [his] excuse for inattention was reasonable, i.e., that the distraction was unexpected and substantial.’”

The Supreme Court and Contributory Negligence

The Supreme Court of Virginia has specifically to hold that, as a matter of law, a pedestrian's failure to look down while stepping forward necessarily constitutes contributory negligence in every case.  

Fultz v. Delhaize America, Inc., 278 Va. 84, 90, 677 S.E.2d 272, ___ (2009)

A pedestrian injured on account of a sidewalk defect is guilty of contributory negligence as a matter of law when he had actual knowledge of the defect and no reasonable excuse for inattention. The same is true when, although the pedestrian had no actual knowledge, the defect was open and obvious and, by the exercise of ordinary care, could have and should have been seen.

Hillsville v. Nester, 215 Va. 4, 5, 205 S.E.2d 398, ___ (1974) 

A person who trips and falls over an open and obvious condition or defect is guilty of contributory negligence as a matter of law. When a plaintif knows of the existence of a condition but, without any reasonabl excuse, forgets about the condition and falls in, off, or over it, he is guilty of contributory negligence as a matter of law.

Scott v. City of Lynchburg, 241 Va. 64, 67, 399 S.E.2d 809, ___ (1991)

Homeowners are not obligated to warn invitees of a hazard “where the dangerous condition is open and obvious, and is patent to a reasonable person exercising ordinary care for his own safety. The obvious character of the condition relieves homeowners of any duty they otherwise might owe. As some commentators have said, an invitee injured by such a condition “is barred from recovery by lack of defendant's negligence toward him, no matter how careful plaintiff himself may have been.”

Runyon v. Geldner, 237 Va. 460, 465, 377 S.E.2d 456, ___ (1989)

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Ben Glass
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Ben Glass is a nationally recognized car accident and ERISA disability attorney in Fairfax, VA.