Slip and Falls

According to the National Center for Injury Prevention (a division of the Centers for Disease Control), “unintentional falling is the leading cause of nonfatal injury across all age groups except 10-24;” and for this group, it “is the second leading cause of nonfatal injury.” The National Safety Council urges older American adults to take steps to remain independent longer by talking to their doctors and making their homes safer. They go on to say that according to the Centers for Disease Control (“CDC”) statistics: (a) every 20 minutes, an older adult dies from a fall; (b) more than 1 in 4 older adults falls every year; (c) three million older adults are treated in emergency departments each year for fall injuries and (d) more than 800,000 patients are hospitalized each year as a result of a fall – most often because of a head injury or hip fractures.

However, slip and fall lawyers like us can help you amass all necessary facts; then pursue claims for injuries arising from the negligence of others.  We assist injured people from all over the Chicago area, including Orland Park, Chicago Heights, Tinley Park, Matteson, Frankfort and Park Forest, IL.

Having said that, slip and fall cases are among the most difficult cases to win at trial. Illinois makes it even harder to succeed because of a prejudice that favors land and homeowners when it comes to slip and fall cases. Most cases are decided in favor of the land and homeowners. It is also hard to find sympathetic jurors to hear your case because many jurors are homeowners themselves and sometimes think: “I’ve done the same thing myself!” Against these significant negative odds, you MUST take steps as soon as possible after the accident. In order to “achieve as solid a case” as possible, by “locking down” all the facts you remember. Because of their training, lawyers are good at helping to get all facts out of you – they do this at depositions, arbitrations and trials for a living. Some fact(s) you may think is inconsequential may come out as the lawyer questions you about your slip and fall incident. So, it is essential that you hire your attorney as soon as possible after the accident – preferably before you give any statements to the homeowner’s insurance adjuster.

The reason for this is that many adjusters are incredibly skilled in protecting the homeowner (or landowner) from liability when and if you bring a lawsuit to collect for your injuries/damages. During my forty-one + years of practice, I can’t tell you how many times I’ve heard this at my first consultation with a slip and fall Client – “The homeowner’s insurance company has to pay if someone falls on the property – right?” The answer to this FAQ is a simple “NO.” Let’s take an example to illustrate my point – you are going to a friend’s house, and an hour before you arrive, it snows about 3 inches. Your friend (the homeowner) has done nothing to shovel his sidewalk; you slip, then fall on his sidewalk and fracture your leg. You then ask: “Is the homeowner (and/or his homeowner’s insurance company) liable for my injuries?” Given those brief facts, the short answer is “NO.”

Slip and fall cases are not only very hard to win but also very “fact-intensive.” While there are various elements that you (the Plaintiff through your attorney) must prove in order to win a slip and fall case, the key facts that are generally the most difficult to establish are those “surrounding the cause of the fall.” These facts must establish that:

1. A “hazardous condition” existed.
2. This specific “hazardous condition” is what made you fall.
3. “How did it (the thing that made you fall – such as coke, water, banana peel, etc.) get there?”
4. “How long did the hazardous condition” (which caused your fall) exist at that location before it made you fall?
5. As a result of the foregoing landowner’s and/or homeowner’s negligence, you sustained serious injuries.

The facts supplying answers to these four questions are “key” to establishing whether the homeowner (or landowner) is responsible to you for your injuries.

In order to provide you with some insight into why I say these slip and fall cases are very “fact-intensive,” I am going to provide you with two (2) “real-life” examples.

EXAMPLE #1: Mary went to grocery store #1 to buy some groceries. While she was walking down the produce aisle, she slipped and fell on a banana peel and severely fractured her leg in two places requiring $118,468 in medical bills and 4 months off work. Her leg no longer has full radius of motion. After getting home from the hospital, she received a call from the grocery store’s insurance adjuster who asked Mary if she would give a recorded statement regarding all the facts pertaining to the accident. Mary agreed, then gave a recorded statement (which included all of the foregoing facts) to the insurance company adjuster. After relating all the facts above to the adjuster and near the end of the recorded statement, the adjuster then asked Mary if she recalled any other fact(s) regarding this accident, and Mary said, “No.” After Mary said “No,” the adjuster then asked, “Have you given me all the facts you know regarding this accident?” to which Mary said, “Yes.” The adjuster then said she would get back to Mary shortly. Two weeks later, Mary received a letter from the insurance adjuster saying they were sorry, but they would not pay Mary anything for her injuries. Mary then hired attorney #1, filed suit against the grocery store (defendant) and at the trial of the case (nearly 3 years after the accident) testified to all the foregoing facts. The jury found in favor of the defendant (grocery store), and Mary received nothing ($0.00) for her injuries.

EXAMPLE #2 (After Mary’s case went to trial): Nancy went to grocery store #1 (i.e., the same grocery store that Mary used) to buy some groceries. While walking down the produce aisle, she slipped and fell on a dark brown/black banana peel and severely fractured her leg in two places requiring $118,468 in medical bills and 4 months off work. Her leg no longer has full radius of motion. After getting home from the hospital, she called attorney #1, who told her to come to his office immediately. She went and he then had her provide him with all the facts of the accident. After hiring attorney #1 (Mary’s former attorney), Nancy received a call from the grocery store’s insurance adjuster, who asked Nancy if she would give a recorded statement regarding all the facts pertaining to the accident. Nancy agreed, then gave a recorded statement (which included all of the foregoing facts) to the insurance company adjuster. After relating all the facts above to the adjuster and near the end of the recorded statement, the adjuster asked Nancy if she recalled any other fact(s) regarding this accident, and Nancy said “No.” After Nancy said this, “No,” the adjuster asked, “Have you given me all the facts you know regarding this accident?” to which Nancy said “that’s all I can remember right now” [NOTE: Her lawyer told her to say these words at the end of the statement, because oftentimes, people get very nervous when giving a statement, and because of this, fail to mention EVERY single fact to the adjuster, so in case that happens, this will allow Mary to amend her statement if something refreshes her recollection and she remembers the other fact(s).]. The adjuster then said she would get back to Nancy shortly. Two weeks later, Nancy received a letter from the insurance adjuster saying they were sorry, but they would not pay Nancy anything for her injuries. Nancy then hired attorney #1, filed suit against the grocery store (defendant), and at the trial of the case (nearly 3 years after the accident) testified to all the foregoing facts. The jury found in favor of the plaintiff (Nancy) and awarded her ($300,000) for her injuries.

Both cases were decided correctly – so why did Nancy receive $300,000 and Mary receive nothing? Both sued the same grocery store. Both had the same amount of medical bills. Both had the same amount of lost time, i.e., 4 months. Both lost the same amount of radius of motion in their leg, and both hired the same lawyer. So why did these two women get two different results? [Hint: it is not because the jurors were different!] The difference between these two cases is actually two-fold.

The first difference is that after he lost Mary’s case, attorney #1 sat down and tried to figure out “WHY” he had lost Mary’s case and discovered it was because he had overlooked that he had to establish (on Mary’s behalf) “how long the hazardous condition” existed: “(see #4 above)” at the time Mary slipped and fell. As a general “Rule” (with some minor exceptions) in Illinois, the law requires the 5 facts (set out above) MUST be established (to a Judge or Jury’s satisfaction) in a slip and fall case OR the land/homeowner WINS! Does the fact pattern given to you in Nancy’s case (above) provide any fact that might seem to establish “how long the hazardous condition” [the banana peel on the floor] existed on the floor before the accident? The answer to this question is a somewhat subtle “YES.”

The reason for the different jury decisions is that Mary’s statement simply gave the naked statement regarding the “cause” of her slip and fall as: “I slipped on a banana peel” and when the insurance adjuster asked Mary (at the end of the recorded statement) if she knew of any other facts regarding her accident, Mary had simply said “No.” So, three years later, when the case was tried, she barely remembered the banana peel, let alone what color it was when she fell.

Nancy, on the other hand, described the banana peel as a “dark brown/black banana peel,” and it is common knowledge that a banana peel turns brown and/or black AFTER some time elapses. This “element of time” was considered by Nancy’s jurors who themselves knew that banana peels turn this color only if they lay there for some time. Using this information, the jury could infer that the banana peel (i.e., the “hazardous condition”) had been on the floor for quite some time before Nancy came along and had her accident.

The law imposes a “duty” on the grocery store to reasonably maintain its floors free of “hazardous conditions.” Since jurors are told about the grocery store’s “duty” to take reasonable measures to maintain its floors safe for customers and the juror’s personally know that banana peels are slippery enough to make people fall when they are new and yellow as well as brown and black, and they know that it takes quite a while for a banana peel to get dark brown/black, the Jurors will inevitably decide that the banana peel had lain on the grocery store for quite some time before it became all brown and black. So the grocery store should have seen the banana peel laying there for some time, yet it did nothing to pick it up; so the store is guilty of “negligence” and Nancy should receive her damages for the store’s negligence.

Now, coming full circle, the difference between the two cases is that the attorney (same in both cases), now KNOWS (after losing Mary’s case) he has to be extremely careful to be certain he gets ALL facts necessary to clearly establish the five (5) factors required in every “slip & fall” case. Unfortunately, that may not be of much help if the Client does not quickly hire an attorney shortly after the slip & fall and BEFORE speaking to the landowner’s adjuster about the slip & fall accident. While the facts in these 2 cases have been changed in multiple respects, the “RULE” which they clearly point out is very real and serves to point out the subtleties (in the fact patterns between slip & fall cases) which makes the difference between “winning” and “losing” the case. Equally important: the EXPERIENCES of each lawyer bringing these very difficult cases to trial makes a very critical DIFFERENCE!! David G. McDermott’s more than 41 years practicing law brings this critical difference to your corner when you retain McDermott & McDermott, Ltd.