I’ve Fallen and I Can’t Get Up! Slips and Falls On Your Property …

We’re all hoping we’ve seen the last days of winter, but the month of March, and even early April, can still bring snow and ice in New England. Someone has fallen in your parking lot, or maybe on the sidewalk leading to your store. The surface was slippery; he/she fell and sustained serious injury. What do you do if you receive a feared slip and fall notice?

Call your insurance agent immediately. Your general liability insurance provides you with a lawyer who will represent your interests. If you are found responsible, your insurance includes indemnity coverage up to certain liability limits. If you exercised foresight and purchased umbrella insurance, you may have an additional layer of protection. Unfortunately, there are times when the matter cannot be resolved without a law suit. This article focuses on the substantive law applied to your case if you must defend yourself in court.

The first question concerns “control” of the premises location where the fall down occurred. If the fall down occurred at your home, clearly you are responsible for maintaining the premises. If your business leases the premises from a landlord, check your lease agreement. Did the landlord retain responsibility for maintaining the premises or was that responsibility assigned to you? On the issue of control, the judge likely will tell the jury:

“The legal responsibility for maintaining premises in a reasonable safe condition depends upon who is in possession of the land, that is, who has control of the premises. ‘Control’ means the power or authority to manage, superintend, direct, oversee, restrict or regulate.” CT Jud. Website (CJW), § 3.9-9.

In considering whether you actually control the premises, the jury will consider evidence of:

• acts of maintenance, such as fixing, repairing, cleaning, painting, performing upkeep – or the power to direct those activities;
• acts of inspection such as conducting or directing inspections or surveys of the property;
• acts restricting or allowing entry onto the premises;
• acts warning others of conditions or boundaries on the property, or setting or laying out rules for conduct upon the property;
• using the premises or property to store things, or to receive mail, visitors, customers or deliveries. CJW, § 3.9-9.

Assuming you controlled the premises where the fall down occurred, what is your responsibility to patrons who come to your business or guests you have invited to your home? Patrons and social guests are considered “invitees.” The judge will instruct the jury that you owe the patron or social guest the duty to:

• use reasonable care to inspect and maintain the premises and to make the premises reasonably safe;
• warn or guard the visitor from being injured by reason of any defects that the invitee could not reasonably be expected to discover;
• conduct activities on the premises in such a way so as not to injure the visitor. CJW, § 3.9-4.

Before the jury can hold you responsible for injuries and damages, and assuming you didn’t actually create the slippery condition, you either had to know about the specific dangerous condition that caused the fall down, or you had constructive notice of the dangerous condition. CJW, § 3.9-12, 13, 15. Constructive notice “means that … [you], using reasonable care, should have known of the unsafe condition in time to have taken steps to correct the condition or to take other suitable precautions.” CJW, § 3.9-13. Some factors the jury considers include:

• whether you inspected the premises on a reasonable basis or in a reasonable way; and
• how long the condition had existed. CJW, § 3.9-13.

The law doesn’t require you to guarantee the safety of all persons on the premises. CJW, § 3.9-18. Instead, the jury is asked to determine whether the slippery surface had existed for such a length of time that you, in the exercise of due care, should have discovered it in time to have remedied it before the claimant fell. CJW, § 3.9-16.

All is not lost. The jury will also scrutinize conduct. If the claimant was not using reasonable care to discover the slippery surface or to avoid such dangerous condition as he ought to have known about or ought to have been able to discover, then his carelessness will either reduce his recovery or maybe even prevent him from recovering any damages at all. CJW, § 3.9-20.

Throughout this article, I have used the phrase “reasonable care.” It has been defined “as the care which an ordinarily prudent or careful person would use in view of the surrounding circumstances.” CJW, § 3.9-19. Unfortunately, this definition provides nominal practical guidance, but it’s the best the law can offer. In the end, the best advice I can provide is purchase plenty of insurance, find yourself a skilled lawyer and be careful out there. Wishing you a Happy Spring!

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