If I can be successful with slip and falls, so can you

Insurer’s denial of liability is just a starting point for any premises case

2015 March

This article will cover some things to keep an eye out for when handling premises cases, and is based upon many years litigating these cases in Southern California.

The two most important points I want you to remember when handling premises cases are these:

A denial of liability is a starting point on any premises case. Expect that the carriers will deny almost 100 percent of your cases. To successfully litigate premises cases you have to be willing to gamble. You have to be willing to push the defense further than normal. You have to be willing to take chances on the unknown aspects of your case.

Perhaps you’re asking yourself, “Why would I want to take on these cases?” After all, notice is so hard to prove, defendants file summary judgment motions, and these cases have about a 50 percent losing rate. True, but there’s also a flipside. I know for a fact that, most of the time, if you’re careful to select the right cases and then work them up correctly, you can have success with them.

How I fell into trying slip/trip and falls

I don’t know anybody who went to law school dreaming about being a premises-liability lawyer. That’s not what drove me to law school, that’s for sure. For those of you who don’t know me, I have been practicing for about 16 years. Like most of us who did not go to Harvard, I did not have a lot of choices when it came to getting a job after I graduated and passed the bar. I worked for a year at two small personal-injury firms. I don’t know what it was, but just my luck, I worked for two guys who spent most of their time partying and leaving me in charge of the office (both were subsequently disbarred!). I was 25 years old and had no guidance. So I figured if I have to deal with all this stress anyway, I might as well go out on my own.

I had become friends with a local chiropractor, who was good friends with Juan J. Dominguez (e.g., the guy on the back of buses). At that point, having grown up in Southern California, I thought he was like a mythical creature; his face was everywhere. So when I mentioned to the chiropractor that I was considering going out on my own, he offered to set up a meeting for me with Mr. Dominguez. He said, “Maybe you can work with him, or, if you open an office, maybe he can help you out.”

Ignorance was bliss. A young kid, I just thought, “Okay I’ll go see this Mr. Dominguez.” Of course, now I know that getting a meeting with him was like going to see the Wizard of Oz. Mr. Dominguez is not exactly the kind of guy who you’re going to walk into his office and meet. I really doubt you will ever see him anywhere for that matter. He is a super low-key, under-the-radar kind of guy.

A week later, I saw Mr. Dominguez. He said, “You seem like a smart kid; let’s go see this lawyer who works here, he just deals with cases we are going to drop. We can give you cases we are going to drop, and you can see if you can get something out of them.”

I said, “You have a lawyer who just deals with cases you’re going to drop?”

 He said, “Yeah, you know we sign up 300 to 400 cases a month.” I was in awe! “But before we do that, I want to give you some advice if you’re going to do this: Remember, a denial of a claim from an insurance company is just a starting point.”

It was kind of over my head at the time, but it has become the phrase I use most in my practice. My associates probably get sick of me saying it. It’s 100 percent true; especially when it comes to slip-and-fall cases.

So Mr. Dominguez and I walked down the hall to a big room with files stacked to the ceiling, and spoke with the lawyer in there, Larry Litzske. Mr. Litzske told me to come there every three or four weeks to meet with him, and he would give me as many denied slip/trip and fall cases that I wanted. It was like Christmas came early; I remember walking out of there with two boxes of files I had to drag out the door, but thinking I hit the big time. My timing was also fortuitous; it was 2001, the year Ortega v. Kmart came down from the California Supreme Court. Ortega is probably the best plaintiff premises case to come down since I have been in practice; later in this article I will discuss it.

And so, armed with stacks of denied cases, and Ortega, I was propelled into the practice of premises-liability law. Thank you, Juan Dominguez, Jr. and Larry Litzske, from the bottom of my heart.

Case selection

If you want to sign up premises cases, you can sign them up as fast as you can meet clients. There are tons of clients out there looking for lawyers because most lawyers won’t take them. You do have to be careful about the ones you take.

Soft-tissue cases

Soft-tissue premises cases can definitely become a consistent revenue maker, especially for attorneys who do not have substantial reserves of cash for upfront costs. These cases require minimal time, as opposed to claims involving property damage, getting somebody’s car fixed, dealing with getting a rental car, and all the nightmares and time that go along with that. Instead, after they officially retain you, you assist getting them to a doctor if they don’t have one of their own, and let the doctor treat the patient. The average soft-tissue case may have $5,000 in physical therapy bills, maybe an MRI and an ortho evaluation.

Gather all the medical bills and send out a short demand letter. In some cases, nothing further is needed to obtain a settlement − often for two to four times more than the medical bills. It’s not as exciting as obtaining a $10 million verdict; but the “hourly” rate for cases that settle easily can be very attractive.

Here is a caveat on soft-tissue premises cases; do not file denied soft-tissue premises cases unless you have a very compelling reason. Maybe it was referred to you by someone that you represented before that has sent you several friends, and you don’t want to cut off that source. Over the years, I have had to file cases worth $500 because adjusters sometimes get so out of line and crazy (that) I just had to make a point. I consider that the cost of doing business.

Blind claims

Try to avoid blind claims, which are cases where people tell you they were injured but the possessor of the land has no idea they were injured. The story usually goes like this:

I fell down at the Motel 6 I was staying at the other night, on a spill in the hallway, and I broke my elbow. I never reported the fall to them because I was so tired I went to bed. And when we checked out in the morning we paid with cash, I have no receipt and I was just staying in the room. I was not a registered guest. My cousin Whitney can be my witness; she was with me.

(Good luck with that claim.)

When a claimant has a blind claim, I will not represent him or her unless he or she has something tangible to show that the claimant was at the scene at the time of the alleged injury. For example, I have had grocery store cases over the years where a client was injured but did not realize they were injured at the time of the fall. Usually, the pain would emerge a day or two later. This tangible showing might include the client visiting a doctor, and/or the claimant returning to the store to make a report. If the client has a receipt for his or her purchases from the store on the day and time in which the injury occurred, I would take the case.

Similarly, if a claimed injury was not reported, but the client has an emergency room record showing they came into the emergency room complaining of an injury in a fall that day or a few days earlier, and if the story is consistent with what the client tells you happened, I would take the case.

I like to look at every case I file this way: How am I going to avoid getting a motion for summary judgment granted against me?

Notice and Ortega

Under general negligence principles, because the owner of the premises does not automatically owe a visitor a duty to keep that visitor safe, the owner must have either actual or constructive knowledge of the dangerous condition before liability will attach. Ninety-five percent of the time, you will be dealing with a constructive-notice circumstance, which brings us to Ortega v. Kmart (2001) 26 Cal.4th 1200, mentioned earlier. How do you take advantage of Ortega? First, it is important to understand the underlying facts in the case:

While shopping at a Kmart store in Torrance, the plaintiff, Ortega, slipped on a puddle of milk on the floor next to the refrigerator and suffered injuries to his knee, including ligament tears. Ortega did not notice whether the milk was fresh or odorous, warm or cold. Kmart’s former manager testified that Kmart employees were trained to look for and clean up spills or hazards (although they did not keep written records). The manager also claimed that it is unlikely for something to be on the floor for more than 15 to 30 minutes, but conceded the possibility that the milk could have been on the floor for as long as two hours. The plaintiff sued Kmart for personal injuries. The jury returned a verdict in plaintiff’s favor and awarded him $47,200 in damages. The defendant appealed.

The Court answered the question, can the defendant be held liable for failing to meet the standard of reasonable care when the plaintiff does not present evidence showing how long the milk has been on the floor? The Ortega court ruled that a plaintiff may demonstrate that the defendant had constructive notice of the dangerous condition by showing that the site has not been inspected within a reasonable period of time so that a reasonably prudent person would have discovered and corrected the hazard. The plaintiff did not present direct evidence showing how long the milk had been on the floor. He did not notice whether the milk was fresh or odorous, warm or cold. He did, however, show that an inspection was not made within a particular period of time before the accident. From this, it would be inferred that the condition existed long enough for the defendant to have discovered it. Therefore, the defendant breached its duty of reasonable care.

Constructive notice in absence of proof of inspection

What a great decision; it makes defendant stores and retail establishments accountable to customers. Ortega was a member of the public invited into the store to spend money but, ironically, that store wanted to penalize him for not having the evidence to prove exactly how long the condition that injured him existed. This result was unfair because the stores were holding all the cards. But prior to Ortega, without such evidence, his case would have been dismissed. Post-Ortega, the burden is somewhat shifted.

Another caveat: It is not a definitive answer that the condition existed long enough to have put the defendant on constructive notice. The Court held the lack of inspection records was only an inference that the condition was on the floor long enough to give the owner the opportunity to discover and remedy it. It still remains a question of fact for the jury whether, under the circumstances, the defective or dangerous condition existed long enough to have been discovered by a possessor of land using reasonable care. Defendants can try and rebut this inference through testimony that the inspection method they had in place was reasonable, even in the absence of written records.

Defendants do not have to keep sweep sheets or inspection records of their premises. But, defendants who, for whatever reason, don’t want to maintain such kinds of records showing inspections and maintenance were actually completed, now increasingly end up in front of a jury. Ortega eliminates probably 80-90 percent of the summary judgment motions that were often granted due to the fact that plaintiffs could not prove actual or constructive notice. Ortega makes constructive notice in absence of proof of inspection a jury question.

We all know that what settles cases is exposure. What is a defendant’s exposure in front of a jury? If the jury is going to hear about a store with no records of inspection and/or no policy or system for inspection and maintenance, that exposes them to a verdict. That will get your case settled most of the time.

Using a PMK against defendant

Be sure to send a request for production of documents that asks for premises inspection records and procedures and policies regarding inspection and maintenance. Ask for records for one year before, and one year after, the incident. Ask for computerized records as well. Lots of newer stores now have systems where employees swipe cards or press buttons hidden all over the store that they have to press at certain intervals to show they were there in that area.

Once you get your discovery and you get a chance to analyze the inspection records or lack thereof, you need to set a person most knowledgable (PMK) deposition. Send out a broad category of information you want to ask the PMK. I usually ask for the following PMK:

Persons with knowledge of the incident, with knowledge of the store’s maintenance policies and procedures, the store’s maintaining of any records of any inspection and/or maintenance of the premises of the store open to the public, the making and retaining any incident reports concerning persons injured in the store.

Most PMKs from grocery stores and retail establishments fall into a category of witnesses that I call “the unprep-ables.” I’m sure we’ve all dealt with the unprepable client. You repeatedly attempt to drill into them how to answer questions at a deposition, but when the moment of truth arrives, your preparation all goes out the window. Here, however, those “unprepable” witnesses become your unexpected assets. Despite best efforts by defense counsel, most PMKs will say odd and unexpected things. Let me share with you two example PMK answers I’ve received during depositions.

In one case, a tree root had pushed up a sidewalk in Westwood and caused a nice lady to fall and break her leg. I took the PMK deposition of the city’s tree-maintenance guy. He had answered an inspection question from me a few minutes earlier, where I thought he had said four to five years.

So I followed up, “you said earlier this inspection normally happens every four to five years.

He responded, “45 years.” I said, “every 45 years?”

And the court reporter asked me, “45 years?

And I said, “That’s a hell of a schedule.” In his attempt to make that sound reasonable, he added, “That’s subject to change depending on funding, of course.”

I would say that you’re okay on constructive notice of 45 years.

The produce department

In another case I had against a supermarket, my client had fallen on a jalapeno pepper in the produce department. In this case, the store had sweep sheets to show that they had cleaned the jalapeno department eight minutes before my client’s fall. When I deposed the PMK, he was very proud to be in charge of the jalapenos. He said, “I’m in charge of the jalapenos. And it’s my job to sell the most jalapenos we can. So my jalapenos at my store, I stack them up at an angle so I can stick more of them on the table. As a matter of fact, I stick a banana box on the table and I make it like a ramp. And then I can stack more jalapenos on my table, because I’m in the business of selling jalapenos.”

I asked, “Doesn’t that make them fall off if they’re stacked at an angle? Wouldn’t it be easier if they were just flat and level?”

He responded, “Yes, but how could I sell all the jalapenos that way?” This was in his testimony, so even though the sweep sheet showed the area had been cleaned only eight minutes prior, the judge denied summary judgment, and the case settled.

After getting written discovery and taking the PMK deposition, you’re usually in a decent position. The defense will either have not provided records of inspection − claiming none exist, or, the records they do provide will lack detail and will not be specific enough to torpedo your case. You hopefully will have some useful PMK testimony to use as well. These things combined will help you survive a summary judgment motion.

Rebutting the everyone-is-always-on-the-lookout defense

Some PMKs will claim that every employee is always on the lookout for dangerous conditions, and that everyone is responsible for customer safety, all of the time. However, that type of testimony is not sufficiently specific. These issues are governed by industry standards, when and how often they should inspect and try to make safe the premises is very specific. If you’re not familiar with them, consulting with a good expert is helpful on these issues.

Unfortunately, the defense will argue throughout the trial that everyone is always on the lookout and responsible, despite that such evidence is contrary to established law and industry standards, which require a reasonable inspection method. Unfortunately, I have seen that defense work in trial.

When I was a new attorney, I always wondered why defendants would purposely fail to maintain records. Years later, the answer has become pretty clear. Sometimes those records serve as the best evidence against the defendant. For instance, many times when defendant returns discovery responses containing inspection records, those records will be incomplete, full of gaps, and, at times, will literally hang defendants out to dry. This is because these records are maintained by the “unprepables” and are, like people, far from perfect most of the time.

In a case I recently handled, the records defendant kept were supposed to be sweep sheets every half hour in the produce department at a major grocery chain. However, they had gaps in inspection entries for about two hours. The PMK explained that they must have had a shift change and that those inspections were probably missed. My client was severely injured during that gap in sweep sheet entries when she fell on produce left on the floor for what could have been hours. The records they kept hung them.

That is why defendants turn to the “we-keep-no-written-records-but-everyone-is-on-the-lookout” defense. It avoids these inadvertent slam-dunk situations for plaintiffs.

The “open and obvious” defense

Open and obvious is a real Catch-22. As a plaintiff’s lawyer, you want to make it a point to expose just how totally dangerous the condition that caused injury to your client was. But the more dangerous it was, the more likely defense counsel will claim the dangerous condition was open and obvious. The defense is going to make this argument every time they can.

Defendant will argue, “Who would voluntarily encounter such an open and obvious condition?” Take a hard, long, look at the situation. If you really have no argument around the open and obvious contention, then preserve your credibility and argue comparative negligence. Admit, yes it was open and obvious. However, emphasize the plaintiff is only comparatively negligent by a small percentage. His failure to perceive how dangerous the condition was does not end the case. Remember to argue that the possessor of the land has an obligation to maintain the property in a reasonably safe condition. Don’t let defendant turn the tables on you; the possessor of land has a duty to not expose persons to unreasonable harms.

No notice required

No notice is required where the defendant created the dangerous condition that injured the plaintiff. As the use of surveillance videos increases, this situation has become increasingly common. A case I recently handled involved a subway employee mopping when my client walked in and fell right in the area where the employee was mopping.

This scene was captured on surveillance video, which we obtained in discovery. The employee’s mopping created the dangerous condition on which my client was injured. No notice is required in such a situation. That is one example why you should be sure to ask for surveillance videos in discovery. Also, make sure to ask for footage from at least one hour prior to, and one hour after, the fall to see what went on and if you can see the condition as it existed at the time of the incident.

A cautionary tale about using experts

What experts to use and the type to designate is a major consideration. In these slip/trip and fall cases, it must be specific. I was litigating a case recently where I realized too late that I had designated the wrong type of expert. My client worked at a Target that had a janitorial company come in the middle of the night to clean the floors. My client worked overnight stocking shelves in the store. She fell and was injured on water that we alleged the janitorial staff had spilled on the premises. I designated an expert that I had used many times before on the standard of care for retail establishments like Target. But just before his deposition, after talking to him about his opinions, I realized that he was not the correct expert. I needed an expert on the standard of care for janitorial cleaning services and how they’re supposed to deal with the situation like this.

Despite choosing the wrong expert, we got lucky. The janitor that was actually responsible for the condition also happened to be a disgruntled ex-employee by the time we found and subpoenaed him to be deposed. He testified that he thought it was dangerous to have his crew working right in between people stocking shelves and that he spilled water all over the place constantly. He also testified that my client was not the first one to fall because of it.  We got a good settlement.