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Our Atlanta slip and fall attorneys have very good reviews from former customers and can correctly analyze your case.
The term premises liability is a broad one that encompasses a number of very different types of cases. Generally speaking, the phrase premises liability covers cases involving the legal duties owed by the owner or manager of property to the public. The cases that we handle fall into a few subcategories:
If you fall on someone’s property the first thing to know is, do not run out and call a lawyer just because you fell. Our firm only accepts slip and fall and trip and fall cases where the client has broken a bone or is in need of surgery. This is not to say that other cases are without merit, we prefer to serve clients who have had a major life-altering event and we can make a substantial difference.
So, when analyzing what steps to take, the first question is, “Is this a serious injury that merits getting a lawyer involved?”
The second inquiry to make is, “who is responsible?” It is important for you to know that just because you fell on someone’s property in Georgia, it does not mean that it was legally their fault. For example, if you are walking through a Kroger grocery store and you trip over a pallet of Wheaties boxes and hurt yourself, it is probably not going to be the store’s fault under the Open and Obvious Doctrine. Think about it for a moment; the pallet is large and easily visible. The law reflects common sense in that you are expected to watch where you are going.
Conversely, if there is spilled milk on the light floor of a Publix store and it has been there for a period of time sufficient for a careful store owner to have located and cleaned it, then the responsibility lies with the store.
Generally speaking, in order for the fall to be the fault of the property owner, the injured person must show that the owner 1) had actual or constructive knowledge of the substance or item that caused the fall and 2) that the injured person did not know about the substance or item despite the exercise of care on their own part. Judges used to throw these cases out regularly where the injured person admits that they were not looking down at their feet as they were walking but that seemed unfair and so the appellate court’s said that even where the person admits they were not on a constant lookout the case can still go to the jury.
It is important to note that slip and fall cases are still very vulnerable to Motions by the owner’s lawyers to throw the case out before jury trial. Known as Motions for Summary Judgment, this is an argument the defense files arguing to the Court that there is nothing for the jury to hang their hat on.
One frequent danger is that the property owner will have logs showing that they had an inspection routine in place. The frequency of patrols under the law varies but for grocery stores, if the store can show that they patrolled looking for hazards every 15-20 minutes, then the Court will still throw the case out. Although this might seem unfair, you must realize that it is not cost-effective to patrol the entire store and immediately spot every customer that drops an item.
For an example of how the Court of Appeals analyzes these cases read Perkins v. The Val D’Aosta Co., Case No. A10A0413 (Ga. Ct. App., July 9, 2010)
How do our lawyers combat the store’s allegation that the spill was too recent to create liability? Detective work and depositions. Most significant slip and fall and trip and fall cases go into litigation. It is our common practice to take depositions of the store employees and managers and to go through the store video and operational records. While it is relatively easy for a store to put up a brave front and to claim that their policies and procedures are airtight, it tends to crumble when hourly wage employees are deposed under oath.
The bottom line is, with a significant injury case, do not be discouraged just because the store is initially denying responsibility. Good detective work can take you a long way.
Here are some examples of slip and fall cases that we are successfully handling for clients:
Client slipped in Publix in Downtown Atlanta on water spilled by the attendant at the floral section. Surveillance showed that there were store employees in the area who could have easily cleaned up the spill before the client fell, tearing her meniscus and requiring knee surgery.
Client Slipped in Kroger Frozen Foods section on spilled milk and sustained a fractured elbow. Discovery showed that surveillance confirmed the fall and that there was no regular inspection of the floor area for 3 hours before the fall.
Client tripped over aged doormat at Walmart and sustained torn shoulder ligaments requiring surgery. Eyewitness testimony showed that the matt had been turned up for weeks without replacement.
Most people are aware that trespassers have comparatively few rights when they are injured on another’s property. A landowner owes the trespasser only the duty not to willfully or wantonly injure them. One of the key exceptions to this rule though pertains to children and is known as the attractive nuisance doctrine.
The classic example is the neighborhood swimming pool. Everyone knows that kids like to swim and it is foreseeable that they might trespass. In a case stemming out of an Atlanta Georgia death, the Appellate Courts decided that where the property owner has taken a reasonable measure such as erecting a substantial fence, then the landowner cannot be responsible for the child’s death and this makes sense, what else is the pool owner to do? Does this mean that recovery in those cases is impossible? Not at all. I have litigated several cases that seemed impossible from the outset including ones where there was a gate, but it was kept unlocked and in bad repair so that the child could easily get in. In another challenging case, the child died while playing with a weight lifting machine at his apartment gym. There we focused on the issue of how access was controlled and there was responsibility on the property owner.
The second category of persons on a property is that of the licensee. The property owner owes the licensee the duty to refrain from wantonly and recklessly exposing them to non-obvious perils. A social guest and a door-to-door salesman are classic examples of a licensee.
The most protected category of person is that of the invitee. The property owner owes the invitee the duty of ordinary care in keeping the premises and the area of approach safe. Invitees include shoppers, people doing work on the property at the owners’ invitation and anyone else there for the mutual benefit of the owner and the guest. The most common type of case we see in Atlanta is the shopper at Kroger, Publix or Family Dollar. I have many potential clients that call seeking a settlement for their injury in these stores and for many of them, I go through the analysis and have to advise them that they do not have a case. Slip and Fall and Trip and Fall cases in Georgia are not an airtight proposition and if you are shopping for a lawyer, be sure that they are giving you a realistic view of the odds of taking a settlement or a trial verdict. Determining the legal status can be a tricky thing. For example, I represent a Papa John’s pizza delivery driver who was shot while delivering pizza to an apartment complex. The cases say that so long as it was a tenant ordering the pizza, then the driver is an invitee. However, if the order of the pizza had been a ruse to draw the man in and the caller never intended to get the pizza, then the driver would only be a licensee.
In a recent appellate decision, Ingles Markets v. Caroll, a plaintiff was knocked down in the aisle of a grocery store and sued the store for not preventing the accident with monitors or the like. The Court wisely observed that a premises owner cannot prevent that which is not foreseeable. Congleton v. Starlite Skate Center, Inc., 175 Ga. App. 438 (1985)
Among the most critical steps in litigation is the summary judgment phase. Summary judgment is not actually a discreet phase one must encounter in a case. However, in virtually every lawsuit, the defendant or the plaintiff – or often both – will move for summary judgment following the close of discovery. At this juncture, the court must decide whether there are issues of material fact that a jury must resolve. In the absence of such material facts, the court will rule, as a matter of law, in favor of one of the parties. Given the costs and risk attendant to trial, defendants will often place emphasis on winning a summary judgment motion.
Fortunately for the Publix shopper in Houston v. Publix Supermarkets, Inc., the material facts did exist. Houston started with a slip-and-fall accident in aisle 13 of a McDonough, Georgia Publix Supermarket. While shopping, the plaintiff, in this case, fell on water. The plaintiff averred that she was paying attention to where she was going at the time but had not seen the water prior to falling. The plaintiff further testified that she saw puddles of water on the ground after falling. In response, Publix provided records and testimony from various employees, declaring that the area where the plaintiff fell had been inspected on several occasions shortly before the fall. According to this testimony, the last inspection took place four minutes before the fall. All the employees testified that had he or she noticed a hazard he or she, pursuant to Publix policy, would have corrected it.
Following discovery, Publix moved for summary judgment, arguing that there were no issues of material fact and that the court should find in its favor as a matter of law. Prior to dealing with whether there was an issue of material fact regarding the plaintiff’s negligence claim, the court first addressed a spoliation argument raised by the plaintiff. Spoliation occurs when a party destroys evidence relevant to litigation and thereby gains a strategic advantage. Five factors are considered in order to determine whether spoliation has occurred: “(1) prejudice to the defendant as a result of the destruction of evidence, (2) whether any prejudice can be cured, (3) the importance of the evidence, (4) whether the spoliator acted in good or bad faith, and (5) the potential for abuse if expert testimony about the evidence was not excluded.” Bridgestone/Firestone N. Am. Tire, LLC v. Campbell, 258 Ga. App. 767, 768-69 (2002).
The plaintiff contended that Publix’s choice to preserve only one hour of videotape from the day of the fall constituted spoliation. However, the court found this argument unavailing because the plaintiff failed to establish that her interests were prejudiced by Publix’s destruction of videotape. The court noted that the videotape included all the time the plaintiff was in the store, that the tape was destroyed the next day pursuant to store policy (admittedly, one could argue about the propriety of such a policy), and that the preserved video showed the area where the plaintiff was for 30 minutes before and after the incident.
Since the plaintiff failed to establish that additional footage would be relevant or show that Publix’s destruction was done in bad faith, the court concluded that spoliation did not occur. Next, the court turned to whether Publix was entitled to summary judgment. Georgia law provides that when “an owner or occupier of land, by . . . invitation, induces . . . others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” O.C.G.A. § 51-3-1. To succeed in a slip-and-fall negligence claim, a plaintiff must prove: “(1) the defendant had actual or constructive knowledge of the foreign substance and (2) the plaintiff lacked knowledge of the substance or for some reason attributable to the defendant was prevented from discovering it.” Shepard v. Winn Dixie Stores, Inc., 241 Ga.App. 746, 747 (1999).
Typically, a plaintiff will not have access to evidence that an employee had actual knowledge of the hazard, so the plaintiff must establish constructive knowledge. In this case, an employee was in the immediate area of the fall at the time it occurred. Under Georgia law, constructive knowledge can be shown if “an employee of the defendant was in the immediate area of the hazard and could have easily seen it.” Mock v. Kroger Co., 267 Ga. App. 1, 2 (2004). The employee’s presence creates an issue of material fact concerning whether the water was a hazard the employee “could have easily seen.” Next, although Publix argued that the inspections that took place prior to the fall demonstrated the exercise of ordinary care as a matter of law, the court found that the presence of the water created an issue of fact regarding the adequacy and reasonableness of these inspections, which is a distinct question from whether the inspection program itself was reasonable for purposes of disclaiming constructive knowledge of the hazard. Given the existence of questions of material fact, the court concluded that summary judgment was not appropriate and denied the defendant’s motion.
Although slip-and-fall cases are generally considered straightforward from a legal perspective, one should note that this one case involved a transfer from state court to federal court, an evidentiary dispute, and several pre-trial, dispositive motions. Indeed, even straightforward cases take effort, and anyone who has been injured in a possible case of negligence should always consider getting the assistance of competent counsel prior to undertaking legal action.
The Atlanta premises liability attorneys at Christopher Simon Attorney at Law have experience in negligence litigation and are ready to offer you zealous representation. If you are interested in a free case consultation, feel free to contact us.