Proving Why in Slip and Fall Cases
Barry: The one thing that's really surprisingly difficult in a lot of these cases is proving exactly what made you fall. Now, one of the basic essential elements of any one of these slip and fall cases is showing what caused you to fall and relating that back to the defendant's negligence. People many times have a really surprisingly difficult time saying exactly what it is that made them fall, and it's not enough that you show that you fell on a piece of property that was just filled with hazards.
There's a fairly famous case that came down from the Illinois Appellate Court years and years ago where a lady was at a jeweler and was walking down a ramp and slipped and fell and hurt herself, and when she was asked at her deposition “What caused you to fall?” She was uncertain about what caused her to fall, but she said, “There was grease on the ramp, there were oil spots on the ramp,” but she couldn't connect her fall in particular to any one of those grease spots or oil spots that was on the ramp.
The Court ultimately dismissed the case because the plaintiff, the lady who fell, was unable to show exactly what it was that made her fall, and that dismissal ended up being affirmed by the Appellate Court. When I'm representing people who are victims of slip and fall accidents one of the things that is always asked about in great detail is exactly what it is that caused you to fall, and one of the things that I need to work on very carefully with the clients is making sure that they're able to give that explanation.
Pam: So then how do you go about addressing that with the client?
Barry: This is part of client education. I make sure the clients know this is an important issue in their case and why it's an important issue in their case. When I meet with clients, many times at first they may have a hard time explaining why it is that they fell, and sometimes it's kind of surprising, but people know for the most part why it is that they fell. They may have a hard time explaining why they know that this is the case, and it's something that takes a lot of careful work with clients.
To give you a real common example we'll talk about a client who slipped and fell on ice. A lot of times people are just walking along, and they slip on ice, and the next thing you know they're either looking at the ground, or they're looking at the sky, and if they're pressed about why it is that they know that they slipped on ice, a lot of times people at first blush will have a hard time explaining why they knew that they slipped on ice. Now, when I'm getting a client ready, I talk with them about “Well, you've slipped on ice before. You know what that sensation's like. That's what you experienced that day. When you were down on the ground, you felt the ice beneath you.”
Those kinds of things are the kinds of things that will get you past what ultimately will be emotion dismiss if you're are not able to explain exactly why it is that you fell. If the client can't help themselves in that regard, then the next step would be to look for independent witnesses who may have seen the fall or in their medical records. The things that the client may have said to the paramedics or staff in the emergency room immediately after they fell. That's evidence that can be used to establish that, but the case is much stronger when the client can explain that themselves. The bottom line on this is without some real evidence of what exactly caused the fall, the case is going nowhere.