Risk Management For Slip-and-Falls: What Not To Do
By M. Jansen Voss, Partner
I have handled a number of cases over the years involving slip-and-falls at mental health facilities, non-profits, daycares, health care facilities, retail stores and restaurants. The following real-life example involves an experience I had at a restaurant, but the fundamental lessons can (and should) be applied to any for-profit or non-profit business.
Several months ago, I had lunch with a fellow lawyer at a restaurant in downtown Birmingham. The restaurant was packed with people. While we were standing in line to place an order, a lady (let’s call her Jane Doe) fell flat on the floor! I helped her up, and fortunately only her pride was hurt. An employee behind the counter saw the fall. As she was getting off of the floor, Doe discovered a small greasy spot on the floor. She told the employee about the greasy spot on the floor. The substance was very small and hard to see on the dark colored floor. The employee, overwhelmed with taking food orders, acknowledged Jane Doe’s statement but did nothing to clean up the spot or warn other customers. As I approached the same employee to place my order, I also relayed that there was a greasy spot on the floor and it was difficult to see. The employee did nothing. Fifteen minutes later, another person sitting at an adjacent table informed the very same employee about the greasy spot. Still nothing. We ate our meal and left after approximately 40 minutes.
Luckily, Jane Doe was not injured. But, the restaurant was setting itself up for significant exposure if another person fell on the greasy spot. I am not going to bore you with the law. However, I will walk you through a short analysis:
Jane Doe (a customer of the restaurant) slipped on a greasy substance that was difficult to see. This alone does not trigger a potentially serious slip-and-fall lawsuit, unless evidence later reveals the employee or the restaurant knew or should have known of the greasy substance prior to Jane Doe’s fall. But Jane Doe’s fall puts the restaurant on actual notice of a fall. The fall could have been idiopathic, but the employee nor the restaurant did anything to investigate.
Here’s where things start to go downhill from a risk management standpoint. Jane Doe then tells the employee she fell on a greasy, hard-to-see substance on the floor. Now the employee and restaurant have actual notice of a greasy, hard-to-see substance on the floor that caused a fall. Yet, the employee does nothing. I told the employee the greasy substance was hard to see – the second notice. Another customer also notified the employee about the greasy substance – a third notice. Yet nothing was done.
Let’s assume the greasy substance remained on the floor, and nothing was done to warn customers about the substance after I left the restaurant. Let’s also assume an unsuspecting customer, John Doe, walked into the restaurant, fell on the same greasy hard-to-see substance, and broke his wrist. The restaurant has a very difficult situation on its hands:
- The restaurant had actual notice that customer Jane Doe fell in the area where John Doe fell.
- The restaurant had actual notice of a greasy substance in the area of Jane Doe’s fall.
- The restaurant was informed the greasy substance was hard to see.
- The restaurant was aware there were a number of other customers that may walk on or around the greasy substance; and
- A reasonable person would likely conclude that since Jane Doe fell on the greasy, hard-to-see substance, other customers may not see the greasy substance and would likely fall.
- Despite all of these red flags, the restaurant did nothing to clean the greasy substance or to warn other customers (John Doe) of the greasy substance.
This is not a good set of facts for the restaurant if John Doe files suit. Through the discovery process, we may uncover potential defenses to John Doe’s claims against the restaurant. In fact, we have successfully defended clients in similar cases that initially seemed insurmountable. But, the odds are not in the restaurant’s favor. They knew the greasy substance posed a risk of harm to customers, yet did nothing about it.
The takeaway from this example is as follows: If you or your employees are notified of a hazardous condition, and particularly if you have been made aware of a prior fall caused by a hazardous condition, you need to: 1) remove the hazard or 2) provide sufficient warnings of the hazard if removing the hazard is not immediately feasible.