In the Beginning

AuthorCharles E. Turnbow
In the Beginning
§100 Introduction
§110 Slip and Fall Elements
§111 Victim
§112 Hazard
§113 Causal Link
§114 Injury
§115 Focus on the Issues
§120 Establishing the Hazard
§121 Getting the Basic Information
§121.1 The Victim
§121.2 The Accident
§121.3 Mechanics of Fall
§121.4 Type of Shoes or Footwear
§130 Documenting the Hazard
§131 Witnesses
§131.1 Paramedics and Other Emergency Personnel
§131.2 Percipient Witnesses
§131.3 Store Personnel
§132 Statements and Reports
§132.1 Client Statements
§132.2 Incident Reports
§132.3 Depose Witnesses for Preservation of Testimony
§133 Physical Evidence
§133.1 Clothing
§133.2 Debris or Other Foreign Material
§134 Photographs
§135 Measurements
§136 General Damages and Non-Medical Specials
§137 Determine the Existence of Building or Safety Codes
§§140 - 150 [Reserved]
§160 Expert Evaluation
§160.1 Consulting With Experts and Other Witnesses
§§170 - 180 [Reserved]
§190 Initial Evaluation Checklist
§100 Introduction
Slip and fall accidents will injure over 28.4 million
Americans this year. Approximately 25,000 will die as a
result of their injuries and several hundred thousand more
will suffer permanent disability. Slip and fall accidents
are the second highest cause of accidental death among
the elderly. In 2010, the United States Center for Disease
Control (CDC) reported that 19,700 adults over the age
of 65 died as a result of fall accidents and an additional
581,000 required hospital care for serious fall related inju-
ries. The effect of fall accident injuries can be catastrophic
to the victims, resulting in substantially changed life styles
and monetary loss. In the elderly alone, the medical costs of
the fatal accidents exceed $179 million. The CDC estimates
that non-fatal accident medical costs are $19 billion annu-
ally. Seventy percent of the accidents will be the result of
some defect on the premises, arising from a lack of ordinary
reasonable maintenance, or design features which do not
meet accepted governmental or industry building code and
safety standards.
Of all personal injury actions, slip and fall cases have
the reputation of being the most difficult to win. Often
shunned by trial lawyers and undervalued by defendants
and their insurance carriers, these cases are characteristic
of personal injury litigation that demands a full knowledge
of the law and technology if litigation is to be successful.
Since 1967, I have been consulted on over 9,000 cases
involving pedestrian fall accidents. Of these cases, about
10 percent have gone to trial. As an expert consulted
equally by both plaintiff and defense, I found that while
defense counsel was often inspired and occasionally bril-
liant, plaintiffs’ counsel was frequently defeated by lack of
adequate preparation.
Changes in the laws and their application have altered the
entire landscape of premises liability. For example, most
jurisdictions have adopted the doctrine of comparative
fault, which has affected the success rate of many plain-
tiffs. In the past, when a plaintiff’s contributory negligence
was a complete bar to recovery, plaintiffs won in less than
40 percent of all slip and fall cases. After the adoption
of comparative negligence, the success rate increased to
over 60 percent.
In cases lacking percipient witnesses or objective evidence
describing the condition of the premises, the discovery
process becomes very important. Evidence supporting the
critical issue of notice must be presented with facts devel-
oped through careful discovery. This text includes inter-
rogatories, deposition outlines and other discovery tools to
help the attorney in developing this extremely important
While premises liability law differs from state to state,
certain underlying principles do apply. Case law is cited
when it is the basis of majority opinion. The referenced
rules of evidence are those of the majority of states or the
Federal Rules. It is not the purpose of this book to provide
a treatise on the law of premises liability. Instead, the fol-
lowing pages offer a useful guide to effectively handling
the mysterious and often frustrating slip and fall case.
§110 Slip and Fall Elements
Slip and fall cases contain the same basic elements as any
personal injury action arising from a theory of negligence.
The main elements are:
These elements are the building blocks of the structure in
every case. The strength of the structure determines the
success of the action. Each of the basic elements are dis-
cussed in more detail below.
§111 Victim
The plaintiff’s attorney must effectively present the victim
of the slip and fall accident who is frequently the only wit-
ness to the incident. Usually only the victim can describe
the conditions of the walkway surface and those events
occurring immediately before the accident. To succeed at
trial, the credibility of the victim is extremely important.
To ensure that credibility will not be a problem, every
detail of the accident must be explored with the client.
There is a reason for every fall. The reason may not be
obvious, but it exists. The more the client knows of the
conditions and facts surrounding the accident, the easier
the task of determining its cause. Ask the client to explain
every action just before the accident and what happened
during the fall. In the beginning of your initial interview,
have the victim tell you the facts in a narrative form, such
as the following:
I was shopping in XYZ Market. I had been shop-
ping for about 30 minutes. My shopping cart was
about half full. I was walking from the meat depart-
ment toward the fresh vegetables when I turned
down the main aisle in the produce department. I
was pushing my cart and my left foot slid forward.

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