DennisBeaverApril 02, 2011 (Original publish date) • By Dennis Beaver

Some of the most often asked questions about legal responsibility concern slip-and-fall or trip-and-fall injuries on someone else’s property. If you or someone you know has recently been injured in one of these accidents, today’s story will be helpful.

We could be shopping at a supermarket, looking for some item, and the next moment find ourselves on the floor with a fractured leg. Yes, it happened on their property, but does this fact alone – where it occurred – make the owner or management of the market legally responsible for the injury and medical bills?

Most people answer, “Yes, of course, because it happened there.”

But that’s not the correct answer, and here’s why: Where a trip and fall or slip and fall occurs isn’t as important as why – what led to it? There has to be some element of fault – negligence – before you can hold the property owner responsible. And that’s only fair.

What if I am a klutz and simply trip over my own feet while trying on a pair of Dockers at Target, fall on the floor and break my arm? Regardless of the extent of my injury, Target will correctly maintain that they didn’t cause the injury. It’s one area where common sense and the law dovetail. That said, when lawyers explain this, they still often hear, “But it happened on their property.”

Claims adjusters and attorneys ask a series of questions with these types of cases and gather evidence to support their position of no liability. Anyone injured needs to find evidence proving fault. These are the questions which must be answered:

(1) Did the property owner/manager do something or fail to do something which led to the injury?

(2) How could they have prevented the injury?

(3) Did they know or should they have known of the dangerous condition – for example, water leaking from a drinking fountain, making the floor slippery?

(4) Either aware of the dangerous condition – or having created it – could management have done anything to make the place safer, or did they knowingly allow the danger to persist?

(5) Did the person who was injured contribute in some way, such as ignoring an obvious danger or by being intoxicated?

(6) Do we have the names of witnesses or employees who saw the event or who responded shortly thereafter?

Finally, were the premises so clearly dangerous that a fall or other injury was obviously going to happen, yet management actively prevented corrective steps from being taken, such as refusing to turn on the lights in a garage, staircase or restaurant?

You’ll really fall for our hummus

Last week we told you about the “fine dining experience” David and his friends from Visalia had at a Southern California “Mediterranean-style” restaurant.

As he put it, “The place was so dark, it was impossible to read the menu. Each table had one candle, which provided virtually all the illumination. We strained to read using that little candle, and finally just had to go to our cars and get flashlights.

“But we had no choice as our waiter refused to turn on any of the overhead lights, even though we asked him nicely. His smug reply was that, ‘Management believes it is more romantic this way, and besides, this saves us energy.’

“It was so dark, that when I got up to visit the washroom, I could not see the leg of a chair, caught my leg in it, and took a violent bump into the side of a table. As I am diabetic, this event required medical treatment.”

David asked if the restaurant would be responsible for his medical bills and any other damages.

What Dave must do

Steven Barth, professor of hospitality law at the Conrad N. Hilton College of Restaurant Management at the University of Houston, gave us his opinion and recommendations for anyone in David’s situation.

“Obviously, anyone who operates a restaurant where it is so dark a flashlight is needed in order to read the menu has put patrons in a dangerous situation. There is no excuse for this, especially when you think of what could happen in the event of a fire.

“It is critical to write things down in a diary of the event while it is still fresh in your mind. Witness statements would be helpful, if you can locate any, including restaurant employees.

“Keep track of medical expenses and send a letter to the restaurant, outlining what happened and asking for compensation. No doubt, a claims adjuster will be assigned to the case. Depending upon the severity of your injury or stonewalling of the insurance company, do not hesitate to seek the advice of an attorney.”

Sound advice indeed.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.