How to Win Your New York Slip or Trip-And-All Case?

We get a lot of questions about how to win a slip or trip-and-fall case. Here are the most common ones, with our answers.

Do I automatically win my case if I tripped or slipped on something that should not have been there?

No, not automatically. You can win, but it depends on the facts. If you slipped on a slippery substance, or tripped on some kind of defect, you generally have got to prove that the defect or the water or whatever it is you tripped or slipped on was something that the owner of the building either knew about with sufficient time before you fell or should have known about. Let me explain. Let's take an example, let's say you slipped on a puddle in a supermarket. You don't know exactly what it was, but it was some kind of a green substance. You get badly injured and you try to bring a claim. The key to your case will be this: That substance you fell on, that liquid, do we know when it got there, and how it got there? Can we find out? After all, it could have been some customer five minutes before you who dropped spilled some Mountain Dew on the floor and didn't bother telling anyone. So you come along and slip on it. Under that fact pattern the store is not liable because, after all, what could they have done? They didn't know about it and could not reasonably be expected to have found out about it before you came along and slipped on it. On the other hand, if you can prove that that spill, even if another customer put it there, had been there for a significant period of time, you can win your case. That’s because the owner is required to inspect the property for spills and other dangers with reasonable frequency. So again if we don't know how long the spill has been there it is a tough case. We can't win that for you. The same logic applies to trip and fall cases. Was the defect or thing you tripped on just recently left there by another customer? Did the store know about it? Should they have known about it? How long was it there? Who put it there? Those are the kind of questions we are going to want to ask.

How do I prove the defect or spill was there for a significant period of time?

Sometimes this is so obvious you don’t even need any other proof than the defect itself. For example, if you tripped on a parking lot pothole that is a foot wide and five inches deep, it’s pretty obvious that pothole has been there for a while. A hole like that does not form overnight. The issue is much trickier, though, for slips. For example, in the supermarket example we discussed above, if you can find a witness who said “I saw that same spill there an hour before” then you can show that the store wasn't doing their job of performing reasonable inspections every half an hour or so to try and catch spills. Better yet, in this day and age, you should try to get your hands on the surveillance video of that section of the store. That should show the spill happening. At Michaels & Smolak, once we are hired, that’s one of the first things we do, we demand that the store preserve or provide us with any surveillance tapes. Generally, in a supermarket, if the spill was there for at least 30 minutes, that’s a good case.

What about slip on snow and ice cases? How do I prove that kind of case?

The same principles discussed above apply to snow and ice cases. Generally, you have to prove the snow or ice was there for a sufficient period of time so that that the property owner had a reasonable period of time to remove it. But with snow and ice cases, the weather history often is crucial to proving your case. If it was snowing or drizzling cold rain or sleet when you slipped, generally the landowner is not going to be liable. The owner is allowed to wait until after the snow/rain stops for some time before he is required to clean up the snow or ice. However, even if it was snowing when you fell, you can win if you can show the ice you slipped on was OLD ice that had been there for a while rather than being ice that was just recently formed. You can prove this if you have taken photos of the ice you slipped on. Generally if it is “opaque” (can’t see through it) and thick, it is old. A fresh snow fall will cover and hide that old ice from view, which may be why you did not see it and slipped on it. On the other hand, so called “black ice” (so clear you can see the black asphalt beneath the ice) is usually deemed recent. Black ice cases are hard to win because the ice is so recent the owner will not have had a fair amount of time to remove it.

The weather records will also help us prove how long the ice had been present. For example, we had a case where the temperatures had risen above 32 degrees three days before our client’s fall, and then fell below freezing and remained consistently below freezing for the three days before the fall. It was a fair conclusion that the ice our client slipped on formed three days before when the above-freezing temperatures caused snow to melt and then freeze when the temperatures again dipped below freezing. Those facts were good for our client’s slip-and-fall case because they tended to show that the owner had three full days to salt and remove the ice, but failed to properly do so. We were able to settle that case for a considerable sum of money. At Michaels & Smolak, we also hire expert meteorologists to help prove when the ice formed. Also important are the snow removal/salting records of the owner or the owner’s snow removal contractor. If you can show that the owner or contractor had a history of not salting and plowing and did not do so before at reasonable intervals before you slipped and fell, this will help you prove your case.

After I fell, the store’s insurance company called and asked me what I was wearing on my feet. Why does that matter?

If you slip or trip and fall and bring a claim against the owner of the premises, the owner’s insurance carrier is going to try to blame you. The more blame they can put on you, the less they will have to pay you. New York lawyers call this concept “comparative negligence”. It works like this: At trial, if a jury finds your injuries are worth $100,000 in compensation, but that you were 30% responsible for your own injury because you were not watching where you were going, or you were wearing improper footwear which contributed to your trip or slip, then the judge will give you only 70% of the compensation, or $70,000. So if you were wearing flip flops, or old shoes with worn down treads, this is not good for your case. On the other hand, if you were wearing sneakers or work boots in good condition, this will help your case. At Michaels & Smolak, we always advise our clients to save the footwear they were wearing as evidence.

Does it matter how big the defect is?

Yes! Some defects are so small and insignificant that an owner will not be held liable. How small? It depends on where the “small” defect is located. For example, if a slab of walkway is elevated one inch above the adjoining slab so that you catch your foot on it and trip, this might be considered a significant defect if it is located on the main entrance way to a busy store where hundreds of people walk daily. But if the same defect is located at a seldom traversed walkway out around the parking lot perimeter, the defect will likely not be deemed significant enough to establish liability.

Ok, now we have covered the most frequently asked questions about slip and trip-and-fall cases. But there are a few questions that no one thinks to ask us which we are going to answer anyway:

What if the owner of the property actually CREATED the defect I tripped on? Does that make a difference?

Yes! That’s a stronger case. Most trip or slip-and-fall cases involve defects that appeared over time and that the owner failed to notice or failed to timely correct. But when the owner actually CREATED the defect, that’s a different story. You no longer have to worry about proving the defect was there for a sufficient period of time. All you have to show is that the owner negligently created the defect. For example, imagine a case where the owner of an apartment building is redoing the walkway. He digs it up and is going to get around to replacing it the next day. But in the meantime he fails to mark off the area in question. A tenant then walks down the walkway at night and falls into the missing walkway area. Again, that’s a very strong case. Or imagine a case where a restaurant employee mops the floor but fails to put up wet floor signs. You walk in and – oops – down you go. It doesn’t matter that the floor was wet for only a minute before you got there. The owner (through its employee) CREATED the defect by mopping and not warning you.

Can I sue the City or Town or Village if I trip or slip on their sidewalk?

Usually not! Believe it or not, cities, towns, villages and other “municipalities” are usually “immune” for liability from trip or slip-and-fall lawsuits. There are special laws in place that protect them. The legislature’s rational for having these laws in place is that they don’t want tax payers being burdened with the cost of paying out large settlements for trip and slip-and-fall cases. The most important rule is that you have to prove the municipality had prior written notice of the defect or icy condition. And that almost never happens. Almost no one writes to a city, town or village complaining of a defect. They might call. But write? Almost never. So unless you are lucky enough to trip on a sidewalk defect that somebody wrote to the municipality about before you fell, you are usually out of luck. There are some exceptions to this rule, however, the big one being that if the municipality affirmatively created the defect, then you do not have to a show they had prior written notice of the defect. So, for example, if the City removed a slab of sidewalk and failed to properly replace it, and this causes you to trip and fall, your case can proceed. The City affirmatively created that defect. But if the slab got “heaved up” by the freezing and unfreezing of the ground over the years, the City did not affirmatively create the defect, so you are going to have to show there was prior written notice of the defect, which again is almost never there.

Does the fact that the owner had some kind of warning up destroy my case?

Not necessarily. For example, we have seen many cases where stores have improperly positioned “wet floor” signs so that they did not fairly warn customers of where the slippery surface is. Also, a warning alone does not necessarily destroy your case because the owner, in the first instance, has a duty to REMOVE or FIX the defect if that is possible and practical. For example, a cheapskate owner of a parking lot who, to save money, refuses to spend money on salt and instead just places a sign up saying “beware of ice” is not going to “skate” from liability (pun intended!). It is not enough to simply warn where removal of the hazard was practical. On the other hand, if there was a warning and you did not notice it, this will likely cause a jury or an insurance adjuster to find you “comparatively negligent” so that your settlement offer or verdict will be reduced. Thus, if your case was normally worth $100,000, but the adjuster or jury finds you were 50% responsible for failing to notice or abide by the warning, your settlement offer, or verdict a trial, will be reduced to $50,000.

Thanks for reading these most common, and most uncommon, questions and answers. Now don’t hesitate to call us to set up a free consultation about your particular case. Each case is different and needs a complete review so that we can decide whether a case exists, how strong it is, and what it’s worth. Or, if you would like more free information, don’t hesitate to order our free book, “Understanding Your New York Personal Injury Claim” by Michaels & Smolak lawyer Mike Bersani. If you chose to hire us, here is how the process works:

How the Claims Process Works
  • (1) Getting to know you. Our first meeting will probably take up to an hour. We will thoroughly question you, and examine whatever records you have, to gather all available evidence and leads to evidence. We will also get to know each other and decide whether we want to work together on your case. If we agree to work together, we will both sign our retainer agreement.
  • (2) Gathering records. Your medical records are extremely important and will play a big role in proving the “value” of your case. Since we need to be sure we get ALL the records, we will have you sign authorizations allowing us to write directly to each of your medical providers, who will then send us all your records. From time to time, we will write them to get updates. We will similarly gather any records of your past income should you be claiming lost income. Relax: gathering records is all on us. All you have to do is sign the authorizations.
  • (3) Getting our ducks lined up. We will also write to all the relevant insurance carriers, defendants, etc. We may also take statements from witnesses. This will ensure we have everything in place for when we eventually make a settlement demand.
  • (4) Waiting. Yes, that’s right. The next step is usually just waiting. Waiting for what? For you to heal. We can’t make a settlement demand until we know the extent of your injury, and whether you will have a permanent loss, and if so, how severe that loss will be. If we settle before we know the permanent consequences, then we will sell you short. The insurance company will not pay for permanent injuries as long as you are still treating and there is a chance you will completely heal. The wait may be for months or even a year or longer, depending on the injury.
  • (5) Settlement. Once you are done treating, all the lawyers (yes all of us!) will study your file, your medical records, etc., and together we will decide – based on our experience in the courtroom -- what a fair settlement should be. We will then call you back to our office to meet with you and discuss our recommendation. You can accept or reject our recommendation. If you accept it, we will then try to settle the case for MORE or at least as much as we have agreed would be fair. But if the insurance company offers less than the number we agreed on, and negotiations fail to bring them up to our number, we will help you decide whether we should “take them to court” or simply take the last best offer. The decision is always yours, but we provide you will all the information you need to make an informed decision.
The End Result

We have helped hundreds of people just like you get their lives back in order after suffering serious injuries from slip and trip-and fall accidents. Here are a few examples of cases we have handled.

Martha was traveling on the New York State Thruway when she and her husband stopped at a travel center to get a bit to eat. She slipped and fell on what appeared to be a freshly mopped floor with no “wet floor” warning cones. She suffered a serious lower back injury. After investigating the claim, we made a six-figure settlement demand, but the insurance carrier would not offer a fair settlement. So we sued and took the deposition of the employee who had mopped that day. It turned out he had not been properly trained to place warning cones. Also, he had used dirty, greasy water to mop.

Here’s another example of someone we helped: Tara, a student at an upstate New York college, slipped and fell on a paved walkway which connected two campus buildings. She was walking from one of her classes to another class located in another building. Because other students were walking in front of her, she did not see a small patch of ice on the pavement. She slipped, fell, and suffered a serious fractured fibula requiring surgery. When we visited the site, we noticed a low-lying crease in the pavement in the exact spot where Tara told us she fell. Although the crease might have been deemed insignificant if it had been located in a parking lot or a less frequently traveled area, this accident happened in the heart of the college where the most foot traffic was. Ice would form in that low-lying crease whenever temperatures rose and then dropped, causing snow to melt, and then to run to the low point in the crease, and then refreeze. We argued to the insurance adjuster that the walkway should have been repaved to remove the small crease so as to prevent ice from forming there. Eventually we convinced the insurance adjuster that we would prevail at trial, and we extracted a significant settlement for our client.

Please note that past case results are no guarantee of future successes. Each case is different. We have described just a few of the hundreds of cases of slip and trip-and fall we have brought to successful conclusion just to give you an idea of the many kinds of cases we handle.

Our team is standing by to help you, too. As a matter of fact, we look forward to your call and the chance to serve you as we have served others in our community. While we certainly can’t guarantee any results, we may be the right law firm for you. The best way for us to find out is by calling us at 315 253 3293 to arrange a free consultation.

Yours,
The Michaels & Smolak Team

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