Winning Slippery Lawsuits

According to the National Floor Safety Institute, fraud accounts for 10% of slip-fall claims. According to Kevin Masterson, an attorney specializing in slip-fall lawsuits with Birmingham, Alabama based Janecky Newell, it is vital to take these cases to court rather than settle them for fear of costly litigation.

A Case Study
Late one evening, Betty Smith (name changed for anonymity) claimed she entered a checkout aisle in a Wal-Mart store in Florida, slipped and fell violently onto her back and hit her head, losing consciousness. She said she came to in a few moments, looked around and realized her back was very wet, and there was a clear liquid on the floor. She also claims that, as a result of this incident, she had a ruptured disk in her lower back and in her neck, a torn rotator cuff in her shoulder and torn meniscus cartilage in her knee. She also says there were absolutely no warning cones up.

Her later investigation revealed that Birmingham, Alabama-based Southern Cleaning Services, Inc. (SCSI) had cleaned in the area within about 5 to 10 minutes of her fall. She also alleged that she saw Wal-Mart personnel hurrying to put wet floor cones out after the fact.

Her contention was that SCSI had mopped the floor, left mop water on the surface and neglected to place wet floor cones, resulting in her fall.

At this point, many insurance companies, believing that juries will be sympathetic to the alleged victim, would settle the case out of court to avoid more costly legal expenses. But not this time. Wal-Mart, a self-insured entity, and SCSI — a company with very clearly defined floor safety procedures and protocols answered Ms. Smith’s challenge by inviting her to bring suit against them. She did and they won. According to Masterson, “Ms. Smith sued for $250,000 and didn’t get anything.”

How did SCSI successfully defend itself? First, Masterson says that bringing a case to court initiates the deposition process, which is often very revealing about the plaintiff’s credibility.

“We started delving very deeply into various details not only with the fall itself but also with the injuries and other aspects of her claim that just didn’t gel,” Masterson says. “For instance, she was claiming that she had never had any problems with her back and neck and shoulder and knee. There was no question that these injuries were present, but the question was what caused them. In delving, we had found that she had had prior injuries in all of those areas. We were able to lay that out to the jury.”

Second, and most important, SCSI has clearly outlined operating procedures to prevent slip-fall. The CEO of SCSI, Dean Goforth, took the stand. Since SCSI had not been notified of the incident until 6 months after the fact, he candidly admitted having no first-hand knowledge of the incident. According to Masterson, Goforth said, “‘But I can tell you this: this is how we always operate,’ and he went through, in great detail, the procedures for mopping, drying and buffing the floors and immediately having warning cones put out.

“He outlined a standardized system for monitoring those areas and not pulling those cones until the floor is completely dry. Standardized operating procedures from which there is no deviation is the best protection.

“Some attorneys differ on that because sometimes written procedures can be used in a trial to hit you over the head if someone deviates from it. But if it’s a fairly simple procedure in simple terms and it’s easy to follow and you have someone to make sure that the training regimen dictates that these are always followed and never deviated from under any circumstances, then I think it’s very worthwhile to follow. Juries like a sense of public responsibility.

“Sometimes looking at it from a cost-benefit standpoint, I can understand when companies want to settle out of court. I can understand that aspect of the business decision–but sometimes you send the wrong message to the public.

“If Ms. Smith gets money easily in a situation like this, somebody finds out and tries to do it.

“Even when you have a credible plaintiff, the important thing is not to roll over on these claims and pay them off too quickly.

“When handled out of court, you can’t get too deep into an investigation; they are limited in terms of what information they can dig up. Insurance companies can interview people, but Ms. Smith would not have been required to talk with them, she certainly wouldn’t be under oath as she was in a deposition situation.

“We’ll get them in a deposition and we can keep them there as long as we want and run through the details, and often the truth is revealed in the very minute details. In this case, slowly a picture of inconsistency came out.

“My point is, if they had treated this claim as one that had taken her word for it and not gone the extra steps and did not make her file suit so we could get into the discovery end of it, we would never have known these inconsistencies. We would not have had these medical records that showed these prior injuries.

“I think slip-and-falls are among the best areas to defend. I think the public, in general, has been fascinated with some of these documentaries or news shows where they have a video of people faking these falls. Everyone has seen one of those, and I think it sticks in everyone’s mind and it’s at least somewhere in the mind of the juror who’s hearing a case like this. There is also the general perception that there’s a lot of lawsuit abuse, that times have changed.

“Having a very standardized operating policy and procedure to prevent slip- falls — one that’s clearly communicated to employees — is the best defense.”

Allen Rathey is President of Boise, Idaho based instructionLink/JanTrain, Inc.

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