Our office is currently handling a number of trip and/or slip and fall cases. Several are slated for trial early next year. Many law firms will not accept slip and fall cases and we only handle a hand-picked number for good reason. As mentioned, in some of our early articles North Carolina is not a very fertile jurisdiction for many types of personal injury cases. Nowhere is this truer than in premises liability cases.

The primary reason, again discussed in previous articles, is the legal defense of “contributory negligence”. Remember next time or if ever are asked to vote or give your opinion on the issue, only 3 other states in the country in addition to North Carolina follow this archaic doctrine. It means that the Plaintiff must be 100% fault free, because even 1% of negligence attributed to the Plaintiff will bar his or her claim. In my opinion the law is in this regard is very unfair.

Negligence is defined as failure to use or exercise reasonable care. It does not mean by its own definition that anyone is expected to be perfect, nor should they be held to such a high bar. Moreover, no one is perfect and so it is too easy for the defense on these cases to sidestep the main focus of the case in order to obtain a technical tag (“your it”) and pedantic victory on the Plaintiff with some contributory “negligence” argument when in reality that is not the case. 

Q. [By defense counsel] “Which way were you looking Ms. Jones when you were walking down the aisle?”.

A. [Ms. Jones] “Straight in front of me”.

Q. “Oh, so you were not looking down at the floor?!” 

You see where I am going here. This exchange is right out of a deposition in a case I am handling. The Plaintiff is somehow “negligent” for even looking straight ahead.

Test yourself next time you walk into a store or even your house. Do you look directly down at the floor while you walk? I submit if you do you will probably bump your head on something.

I guess you may feel that a jury could sort this out and see it for what it is, but unfortunately jury verdicts in trip and fall cases demonstrate the opposite, they in fact do get hung up on such argument and can be easily swayed to become unforgiving to a plaintiff in such claims.

 A review of the reported cases actually shows that even getting to a jury is a challenge. Judges dismiss on a motion called summary judgment the lion’s share of premise cases preventing them from even reaching the trial stage. Here contributory negligence is the most stated ground for the defense in addition to what’s known as the “open and obvious” defense.

This defense goes like this, if a condition is equally “open and obvious” to the Plaintiff as it is to the folks who are responsible to keep the area safe than it is an absolute bar to recovery. But think about what this means. If an elderly woman, who for the first time is walking on the sidewalk specifically designed, built and intended for pedestrian traffic trips on a protruding brick, which had been in such condition for 6 months despite the owner’s duty to reasonably inspect, is it fair to bar her claim? Is it really as open and obvious to her as to the owner?

 How open and obvious is clear water on tile floor or a pothole in a blacktopped or shaded area? I’m arguing less against the basic rationale behind these defenses as their misdirected application to day to day and common events and their pernicious ability to prevent recovery of anything especially when the injuries can be serious.     

Here are some tips if you are ever involved in a slip and fall accident.

 1)      Take pictures immediately of the defect or hazard if possible, on your cell or camera if available. It will disappear quickly and your case with it.
2)      Make sure you make a written report to the owner of the accident and defect when possible immediately after it occurs and keep a copy.
3)      Do not give any recorded statements without first consulting us or an attorney that practices in this area.
4)      If anyone else is around get their name and number-witness statements are very important. 
5)      Save or take a picture of the shoes or footwear you were wearing.