How to Protect Your Business from Liability for Slip and Fall Lawsuits


Whether walking down the sidewalk, through the parking lot, inside your store or restaurant, or elsewhere on your property, there may be hazardous conditions you may not be aware of. When those hazards aren't promptly removed or repaired, there's a good chance someone is going to slip or trip, and fall. When they do, they will likely be injured.

In the United States, resulting costs of slip and fall accidents are estimated at $13-14 million per year. Slip and falls are the number one cause of accidental injury, resulting in 20.8 percent of all emergency room visits.[1]

Slip and fall accidents often result in leg, elbow, hip, wrist and other injuries, ranging from mild to very serious, including back and head trauma. It's up to you to do all you can to minimize or eliminate the number of slip and fall accidents on your business property.

According to the Centers for Disease Control and Prevention (CDC), each year over one million people in the United States are injured in slip and fall accidents. Over seventeen thousand people die in the U.S. each year because of those injuries. Moreover, slip and fall accidents make up 15 percent of all job related injuries, which account for between 12 and 15 percent of all workers' compensation expenses.[2]

Business Premises Liability and Slip and Fall Accidents

Premises liability is a legal doctrine applying to business owners. Under this doctrine, a business owner can be held legally responsible, or "liable" for slip and fall accidents and resulting injuries which occur on their property. Let's review the legal issues involved:

Legal Issues Applying to Premises Liability

  1. Duty of Care
  2. Reasonableness
  3. Knowledge
  4. Breach of Duty
  5. Negligence
  6. Direct and Proximate Cause
  7. Damages

First: Premises liability begins with the legal "duty of care" you have as a business owner to do everything reasonably possible to assure your property is safe, and that your customers, patrons, clients, employees, and others legally upon your property are safe from undue harm and injury. This is a very important concept, as "breaching" your legal duty of care can result not only in injuries, but in skyrocketing insurance costs.

Second: Your legal duty of care is a reasonable one. This means as a business owner you aren't required to take extraordinary measures to keep the property safe. Instead, you are only required to doing everything within reason to make your property safe.

For example, a restaurant owner would not be under a legal duty of care to have multiple employees continuously follow around every customer in the restaurant to clean up every drop of liquid which is spilled, or every piece of food that is dropped. To do so would be unreasonable, and not required by law. However, the same restaurant owner would have a legal duty to have the employees monitor the floor for hazards at regular intervals, such as every 15 minutes or so.

Third: To succeed in a slip and fall personal injury claim an injured party must show you knew, or should have known there were hazardous conditions on your property which were likely to cause injuries.

For example, a clothing store owner may have received numerous complaints over a period of weeks that the mirrors in the dressing rooms were loose. Knowing that, the store owner did nothing. One day, while trying on clothes a mirror came loose, falling onto a customer, severely cutting her. In this case, the store owner knew, or should have known of the danger to customers and yet failed to take action.

Fourth: When you knew, or should have known a hazardous condition exists and you failed to repair or eliminate that hazard, you effectively breached your duty of care by failing to take appropriate remedial action to protect your customers from undue harm or injury.

Fifth: A breach of duty of care constitutes negligence.

Sixth: Your negligence then becomes the direct and proximate cause of a customer's injuries. "Direct and proximate cause" means there were no other intervening factors, other than your negligence, which could have caused the injuries.

Seventh: As a result of those injuries, a customer sustained damages. Damages are normally defined as medical or therapy bills, out-of-pocket expenses related to the injury, lost wages, and pain and suffering. For employee workers' compensation claims, pain and suffering is not recoverable, and only about 2/3rds of the employee's wages are recoverable.

Invitees, Licensees, and Trespassers

As a business owner, when considering premises liability your legal duty of care extends to several "classes" of people. For legal purposes they are called "Invitees," "Licensees," and "Trespassers."

What is an Invitee?

An invitee is a person who enters onto your premises at your express invitation, or the invitation of an employee. The invitation does not have to be in writing. The invitation is made for the purpose of transacting business. The invitee enters your property so you and the invitee gain some mutual benefit from the invitation.

For example, customers coming onto your business property are invitees because they are invited into your business to purchase something. Tradesmen and women hired to do work on an owner's property, like plumbers or roofers, are usually also classified as invitees because they are being paid in exchange for their work on the property and each party gains a benefit.

What is a Licensee?

A licensee is an invited guest for personal, rather than business or commercial purposes. For example, a dinner guest at your home would be a licensee. When it comes to businesses, those who enter onto the property are almost always Invitees, not Licensees.

Trespassers

Trespassers are persons who enter upon your property without being asked, and normally in violation of local trespassing laws. For example, a burglar would be a trespasser. So would a patron who is told to leave and who ignores your command or that of your employee.

As a business owner you have no legal duty to keep your property in a safe condition for trespassers. But there is an exception. You may not willfully cause harm to a trespasser, unless in self-defense or the defense of a third party.

Common Causes of Slip and Fall Injuries

Inadequate Lighting

Inadequate lighting can hide a number of hazards inside and outside of your business, including curbs, physical obstructions, steps, potholes, and even criminals set on robbing your customers.

Parking Lots

Parking lots harbor a number of hazardous conditions, including concrete car stops, potholes, misdirected cars due to faded pavement arrows, uneven pavement, lack of adequate stop and yield signs, ongoing construction, and criminal activity.

Sidewalks

As a business owner you are normally not responsible for the maintenance of state, county, city, village or other governmentally controlled sidewalks. However, in some cases the maintenance of sidewalks is shared between the government entity and business owner. It's always important to know whether or not as a business owner you are responsible for maintenance of sidewalks adjacent to your business.

If you are responsible, it is vital you remove or repair any hazardous conditions, including cutting back shrubbery or trees protruding over the sidewalk, cracks, uneven areas, holes, tree roots, and other hazards which can cause a customer to trip and fall.

Ice or Snow Outside a Building

A business owner is responsible for walkways and parking lots owned or controlled by the owner. Walkways can include the immediate areas around the outside business where customers walk once they leave the sidewalk. When snow or ice accumulate, those areas must be cleared as soon as possible, and kept clear by removing the ice and snow at regular intervals.

In most cases the law doesn't require a business owner to remove ice or snow which has accumulated off the business property. However, if weather conditions cause an extraordinary accumulation of snow or ice on the roof, it may then melt and drip off the roof, refreezing on the ground in front of the business.

Physical Obstacles

Poorly placed electrical cords, protruding furniture, floor mats, floor door moldings, door stops, fallen merchandise, and other obstacles must be promptly eliminated or repaired.

Congested Ingress and Egress "Flow Rates"

As a business owner you must be sure the entrances and exits to your business are sufficient to permit customers, patrons, and other persons legally upon the property to enter and exit your business without undue congestion. Heavy flow rates through obstructed areas may cause people, especially young children and the elderly, to lose balance and fall.

Wet and Slick Floors

Spills, rain, snow or ice carried into the building, waxed floors, wet floors from mopping, and other slippery floor conditions are common causes of slip and fall accidents. Be sure to promptly eliminate all those hazards. This includes setting out a sufficient number of cautionary signs to cordon off the slick area. One sign may not be enough. [3]

Measures to Take to Avoid Slip and Fall Accidents

  • Take immediate action to eliminate hazardous conditions, including removing or repairing the hazards.[4]

  • Maintain flooring, restrooms, aisles, fitting rooms, shelving, and walkways at regular intervals. Use industry standard cleaning products, instead of cheaper, often less effective products.[5]

  • Repair on a frequent basis all uneven surfaces.[6]

  • Make sure elevators and escalators are inspected and maintained at regular intervals.

  • Employ security personnel when there is a real possibility outside nefarious persons might inflict harm to customers, patrons, and others legally upon the property, including parking lots, sidewalks, etc.

  • Have regular training for all employees regarding safety measures and immediate reporting of hazardous conditions.

  • Instruct employees in slip and fall safety measures for customers, including the creation of Incident Reports (see below).

  • Instruct employees in the procedures for assisting customers who may have slipped and fallen, including calling for emergency assistance where obvious, or when requested by injured customers.

  • Have regular maintenance of outdoor areas, including sidewalks, children's play areas, parking lots, and lighting. Regularly monitor and repair potholes, remove snow, ice, and water from property, and remove obstructions.[7]

  • Keep up to date records of maintenance, including specific actions employed to remove and repair hazardous conditions. Be sure all government inspections are passed, and that proof of your passing scores is maintained.

  • Conduct daily safety surveillance looking for wet or greasy floors, loose floor mats, torn or bunched carpeting, poor lighting, including replacement of burned out or dimmed lights, floor obstructions, such as litter, fallen merchandise, uneven and cracked flooring, exposed cables or wires, etc.

  • You must have adequate premises liability insurance. A business liability insurance policy pays for covered losses arising from slip and fall injuries up to the limits of your policy. It may cover bodily injury occurring on your business premises or arising from your operations.[8]

Incident Reports

Documenting slip and fall accidents is vital in protecting your business from false or exaggerated claims of injury by customers, patrons, employees and others who may be injured on your property.

Incident Reports made at the time of the accident will forever show exactly what happened, the reason why, whether or not there were witnesses, the conditions precipitating the fall, and other pertinent information. This is important as some victims of slip and fall accidents have a tendency to exaggerate their injuries, or the causes of their slip and fall.

Here's a downloadable Incident Report Form

What You Need To Do After a Slip and Fall Accident

1. Offer Medical Attention

Administer first aid. If the injury appears serious, and/or if a customer or employee asks for emergency medical services, do not hesitate to call an ambulance.

2. Gather Documentation

Use an Incident Report Form to gather the names, addresses, phone numbers and other witness contact information. Do the same for the injured party.

3. Secure Photographic Evidence

Be sure to preserve any videotape which may have been taken by your surveillance cameras. Also, take photographs of the slip and fall area, and photos of the injured person, if you are able to do so.

4. Report the Accident to Your Insurance Company

Whether you think the person who fell was seriously injured or not, contact your insurance company and advise them of the circumstances of the fall. If the person who slipped and fell was an employee, promptly contact your workers' comp insurance provider to confirm the employee will receive follow up medical treatment.

5. Follow Up With the Person Who Fell

Within 24 hours after the slip and fall, contact the person who fell. Let them know you are concerned about their well-being and ask if medical care was needed. Since you should have already reported the incident to your insurance company, let the injured person know one of the company's representatives should contact them soon.

6. Preserve Evidence

Preserve any evidence, such as a broken piece of machinery, tools, a broken tile, torn floor mat, etc. Do not attempt to conceal the evidence. Doing so can backfire if the injured party retains an attorney and later questions you under oath about the evidence. This is known as "Spoliation of Evidence," and can undermine your defense if the case goes to trial.

"Damages" in Slip and Fall Accidents

In the event an invitee, licensee, or employee is injured because of a slip and fall accident, he or she may have sustained damages. Damages generally include medical and therapy bills, out-of-pocket expenses (for such items as medications, bandages, crutches, costs of travel to treatment, etc.), lost wages, and pain and suffering.

Pain and suffering is not available to injured workers covered by workers' compensation insurance. Additionally, the employee may only be entitled to about 2/3rds of his or her lost wages.

Types of Injuries

Legally speaking, there are two types of injuries sustained in slip and fall accidents. These are generally classified as "soft tissue" and "hard injuries." In most cases, slip and fall accidents result in soft tissue injuries.

Soft tissue injuries include sprains and strains of tendons, muscles, or ligaments, minor burns, abrasions, and cuts, minor swelling, and other similar injuries. More serious hard injuries can include fractures, 3rd degree burns, deep cuts requiring stitches, concussions, disk herniations, head trauma, and other more serious injuries.

Deaths from slip and fall accidents occur with much less frequency than soft tissue and hard injuries, and yet when deaths occur, the results can be devastating for the business owner and the victim's family.[9]

Employee Slip and Fall Injuries

According to the United States Department of Labor, slip and fall accidents in the workplace constitute the majority of general industry accidents. They cause 15% of all accidental deaths, and are second only to motor vehicles as a cause of fatalities.[10]

Employees in wholesale and retail businesses suffer the highest rates of slip and fall injuries. The U.S. Bureau of Labor Statistics states over 229,190 workers are injured annually from on the job slip and fall injuries.[11]

More than 16 percent of all workplace slip and falls result in injuries or illness that affect the productive environment of a workplace. According to the Consumer Product Safety Commission, slip and falls are the leading cause of workers' compensation claims.[12]

To avoid employee slip and fall injuries, you must do everything within reason to take preventive measures, including:

  • Clean up spills as soon as they occur
  • Replace unsafe flooring, install mats and add abrasive strips
  • Mark spills with warning signs
  • Mop or sweep up debris from floors
  • Remove obstacles from walkways
  • Secure mats and carpets with tape to ensure they remain flat
  • Close cabinets or drawers when not in use
  • Keep workplaces and walkways well-lit
  • Replace burned-out light bulbs and faulty switches
  • Ensure employees are wearing correct footwear[13]

Fraudulent Slip and Fall Claims

Slip and fall "scams" happen all the time. You may think your business is hazard free, and it may very well be. Unfortunately, there are still people out there who will feign accidents and injuries in an attempt to convince your insurance company to compensate them for their "injuries."

Common frauds include "padding," or "inflating" actual injury claims with unnecessary medical or chiropractic bills. Some slip and fall claims are "staged" by one or more parties in an attempt to convince you they were injured as a result of a hazardous condition on your property.

Some scammers have been known to bring their own liquids and purposely spill them on the floor. Others may have cohorts who act as witnesses, not only to the slip and fall, but as to the "pain and suffering" of the person who fell. It's almost impossible to completely thwart such fraud, but with immediate and proper documentation of the circumstances of the fall, you will be protected.[14]

Whether you believe the slip and fall accident is feigned or not, report it to your insurance company. You may think doing so will automatically increase your insurance premiums. While that may be the case for some, for most business owners it's more likely the insurance company will detect the fraud during their investigation and not pay the claim.[15]


References:

  1. National Floor Safety Institute
    http://nfsi.org/nfsi-research/quick-facts
  2. Center For Disease Control (CDC)
    http://www.cdc.gov/HomeandRecreationalSafety/Falls/adultfalls.html
  3. The Green in Hygiene
    http://greeninhygiene.com/2012/08/08/slippery-when-wet-the-hazards-of-wet-floors
  4. State Farm
    https://learningcenter.statefarm.com/safety-2/work/prevent-slips-trips-and-falls-on-your-property
  5. Carnegie Mellon University
    http://www.cmu.edu/ehs/occupational-office/workplace-safety/slip-trip-fall.html
  6. Chub.com
    http://www.chubb.com/businesses/csi/chubb4992.pdf
  7. Huffington Post
    http://www.huffingtonpost.com/kiernan-hopkins/how-to-prevent-accidents_b_4215041.html
  8. NFIB
    http://www.nfib.com/article/8-ways-to-be-prepared-for-a-slip-and-fall-incident-63384
  9. New York Times
    http://www.nytimes.com/2012/08/29/nyregion/a-fatal-slip-cuts-short-the-life-of-carlisle-champalimaud.html
  10. United States Department of Labor
    https://www.osha.gov/SLTC/walkingworkingsurfaces/index.html
  11. U.S. Bureau of Labor Statistics
    http://data.bls.gov/timeseries/CSU00X4XXXXX6E100
  12. Consumer Product Safety Commission
    http://nfsi.org/nfsi-research/quick-facts
  13. Rubbercal.com
    http://www.rubbercal.com/rubber-mat/Articles-3/cost-of-slip-and-fall-injury.html
  14. SafetyED
    http://www.safetyed.org/howtopreventfallsintheworkplace.html
  15. Einsurance
    http://www.einsurance.com/journal/premises-liability-insurance-basics-for-small-business

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