Falls in Residences

• Author: Charles E. Turnbow
• Pages: 452-490

19-1

CHAPTER 19

Falls in Residences

§1910 Single Family Homes

§1911 Limited Liability

§1912 Owners’ Lower Duty of Care

§1913 Foreseeability of Use

Case 1: Remote Stairway

Case 2: Main Entry

§1920 Multi-Family Dwellings

§1921 Apartments

Case 1: Improper Re-Sealing of a Stairway

§1922 Condominiums

Case 1: Painted Walkways

Case 2: Resurfaced Walkways

§1923 Hotels and Motels

Picture: Water Stains on Concrete Stairs

§1924 Vacation Rentals

Case 1: Fatal Fall in Rental Unit

§1930 Special Care Residences

§1940 Hazards in Residential Buildings

§1941 Structural Defects

§1942 Stairways

§1942.1 Classification of Stairway Fall Accident Cases

§1942.2 Background and Statistics

§1942.3 Common Elements in Stairway Accident Cases

§1942.4 Special Aspects of Premises Liability Law

Case 1: Failure to Inspect

§1942.5 Burden of Proof

Case 2: Plaintiff Slips on Stair Tread

§1942.6 Questions and Answers

Case 3: Handrails Too Close to Wall

§1943 Porches and Balconies

Case 1: Slippery Decking

§1944 Single Risers

§1945 Floor Material and Flooring

§1950 Hazards From Poor Maintenance

§1951 Water on Walkway

§1952 Solid Debris

Case 1: Sand on Handicapped Access Ramp

Case 2: Sand and Gravel on Driveway

§1953 Weathering and Maintenance

§1954 Falls From Windows

§1954.1 Duty

§1954.2 Duty to Maintain

§1954.3 Parental Responsibility

19-2

SLIP AND FALL PRACTICE 

§1960 Changes in Occupancy

§1961 Transient Business Use

Case 1: Home as Precinct Polling Place

§1962 Business Use of Home

Case 1: Home Businesses

Picture: Unmarked Hazard

§1970 Checklists

§1971 Stairway Fall Accidents

§1980 Deposition Outlines

§1981 Stairway Experts

§1982 Lighting Experts

19-3

 FALLS IN RESIDENCES §1913

§1910 Single Family Homes

The average house is fraught with hazards. The largest

number of injury-producing slip and fall accidents occur

in or around the home. Falls in bathtubs, kitchens, garages,

stairways and walkways are relatively common.

§1911 Limited Liability

If an injury occurs to a homeowner or a member of his or

her immediate family and the homeowner is also the occu-

pier of the premises, liability is very limited. Many states

have a family exclusion act that prohibits members of an

immediate family from suing each other. Aside from the

stigma of suing a family member, there are a number of

affirmative defenses that can be raised. Since the victim is

usually a resident, he or she may have actual or constructive

knowledge of the defect that caused the fall. Victims who

are also homeowners have a duty to inspect and repair the

premises under most circumstances. There may be liability

by the builder for latent defects which were the result of

poor design or construction practices and which would

not be readily apparent on inspection by the injured prop-

erty owner. However, most jurisdictions have a statute of

limitations regarding such liability. Check carefully before

pleading.

§1912 Owners’ Lower Duty of Care

When dealing with an accident involving a non-family

member, carefully consider the different levels of duty

imposed by statute, custom, practice or community

standards. Jurors are likely to rely on their own life expe-

riences to determine what is commonly done in the

maintenance of a single family home. For example, a

5-inch-deep hole in the middle of the yard may create a

substantial tripping hazard. It is not unusual, however, to

find such a hole where there are young children or dogs.

Unless the yard is to be used for a quasi-public event,

there is little need, other than for aesthetics, for the home-

owner to fill the hole. The only individuals likely to be

exposed to the condition are family members aware of its

existence. The same defect in the lawn of an apartment

house or public park, however, would require diligent

effort to eliminate. The homeowner has a duty to warn

of known hazards to the social guest and failure to do so

is negligence. Where the occupier is a tenant, the owner

has a duty to both inspect and warn invitees of the hazard.

Social guests of the tenant usually step into the shoes of

the tenant and have the same rights of protections against

hazards.

§1913 Foreseeability of Use

The foreseeability of the public’s use of the area determines the

required level of maintenance. For example, in the following

two cases, each stairway presented a substantial hazard. The

juries found a different duty based on the area’s anticipated

use.

Case 1: Remote Stairway

The plaintiff was a cable TV installer entering the defendant’s

property to connect drop leads for new cable service. In order to

get to the back of the house to make the connection, the plain-

tiff had to descend wood steps, partially obscured by 10 to 12

inches of snow. The plaintiff slipped and fell down the steps.

Bringing suit in superior court, the plaintiff alleged that the

stairway did not meet the UBC minimum standards of safety

as adopted by the county. The plaintiff contended that the vari-

ation in riser height and lack of handrails created a substantial

hazard. Further, since the defects were in violation of the code

and they directly caused the incident and subsequent injuries,

the plaintiff alleged that he was entitled to a negligence per se

instruction.

The plaintiff’s engineer stated that the stairway was subject to

the building codes and did not meet the minimum standards.

The defendant’s expert argued that the stairway was exempt

from the code provisions because it was not attached to the

building; instead it was a series of steps following the natural

slope of the lot. The defendant’s expert contended that:

• The steps did not serve any habitable portion of the building

and would not be considered part of the ingress or egress

facilities;

• The placement, design and construction of the stairway was

such that it was not intended for public use; and,

• Since the stairway led to an unused portion of the property,

it was not foreseeable that it would be used by those not in

residence.

The jury found that the property owner had no duty to main-

tain the stairway within the specifications set forth in the

building code because the steps were not intended for public

or trade use.

Case 2: Main Entry

The plaintiff was apartment-sitting for a friend at a beach-

front apartment. Beach traffic and on-shore winds caused

sand to accumulate on the walkways and courtyards. To get

from the apartment to the promenade, the plaintiff had to

descend four steps leading from the common porch of the

apartment to the courtyard. As the plaintiff headed out for an

evening walk, she slipped and fell on the sand-coated steps.

During discovery, the apartment manager testified that she was

aware of the sand accumulation, that the problem was a substantial

one, and that she took extraordinary measures to assure that the

steps were clean and safe. Every morning she swept and hosed

down the steps and porch. If she had the opportunity, she would