A business owner has a duty to make the public areas of their property reasonably safe.
However, trip and fall cases are fraught with traps for the unwary. Things like:
- failure to report the incident;
- failure to get the names and contact information of witnesses;
- failure to seek prompt treatment
- and failure to preserve evidence like photos of the hazard or surveillance video.
Let’s take a look at a recent Garrison Law Firm trip and fall case
The Trip and Fall Incident:
A couple of years ago, we had a client named Betty (an assumed name) who went to a local restaurant to pick up a to-go order with her grandson in attendance. It was well after sunset, and they entered the door next to an outdoor eating area together.
Upon picking up their order, they left out the same door where the lighting was poor. They had to walk around the outdoor seating area to return to their car. The outdoor seating had a railing around it with corner posts set in elevated concrete. This post was in the middle of a 4-inch raised and about 8-inch square block of concrete, leaving the concrete sticking out about 3 inches beyond the railing on the sidewalk.
The concrete was not color painted and not easily seen in the low lighting that evening.
As luck would have it, Betty caught her shoe on that concrete block and fell hard onto the cement sidewalk, injuring her back. She was able to get up and get in her car. By the time she drove the short distance to her house, she could not get out of the car.
The Trip and Fall Injury:
She was taken by ambulance to the hospital, where an MRI was performed, determining that she had fractured five mid-back vertebrae and ruptured several disks.
The next day she was taken to surgery, and the surgeon fused 5 of her thoracic disks, leaving her with a permanent reduction in her spinal range of motion and a six-month recovery period during which she would wear a back brace 24/7.
The family was in shock over what happened and how badly Betty was injured. Unbeknownst to Betty and her family, Betty has osteoporosis, making her susceptible to more severe injury from a fall.
The family was worried that her condition would hurt her case and worried about how their family business could survive without her for such a long time.
Trip and Fall Representation:
Garrison Law Firm received a call from Betty’s son not long after her surgery, raising these family concerns. We immediately had the son go report the incident to the restaurant and to take pictures of the concrete hazard. We also sent someone to the scene to obtain our own photos of the area.
It was later observed that after this incident, the restaurant had painted the subject concrete bright yellow. One of our attorneys went to Betty’s hospital room to gather information from Betty and the family about how the incident happened, what injuries she had suffered, and what they knew about her upcoming recovery.
Common Legal Issues in Trip and Fall Cases
Here are some legal issues most people are not aware of.
First, the business “takes its victims, and it finds them.” This means that if the injured person was more susceptible to injury because of a pre-existing condition, so the business is liable for the added level of damages sustained by the increased injury.
Secondly, the fact that the restaurant had painted the raised concrete cannot be used against it as proof that the unpainted block was dangerous. The reason it cannot be used is a matter of “public policy.”
The public policy is that dangerous conditions must be remedied so no one else can be hurt by them. Allowing such repair to be used as some type of admission of liability would have a chilling effect on businesses taking remedial measures to remove the hazard. Therefore, our pictures of the recently painted concrete could not be used in court. However, they could be used in settlement negotiations with the restaurant’s insurance company in the argument that the condition was hazardous in the event it tried to claim the condition was not hazardous.
Betty’s family contacting Garrison Law Firm promptly allowed us to preserve critical evidence. Asking her son to go report the incident to the restaurant got admissions from the manager that others had tripped there before and that he himself had tripped there several times. Because it was the son, and not our lawyer, that got the admissions, the son could testify about the admissions. Yes, it is hearsay testimony but admissible as an exception to the hearsay rule because it is a statement against interest.
If our lawyer would have obtained the admissions, then Garrison Law Firm could not have represented Betty because our lawyer would have become a fact witness disqualifying us from further representation.
Trip and Fall Settlement
Betty made a fine recovery and was able to go back to work after about six months. We were able to get the restaurant’s insurance company to agree to mediate the claim pre-lawsuit saving her an increase in the percentage of attorney fees when the case goes into litigation.
At the mediation, we settled Betty’s claim for $600,000. As you can imagine, Betty’s medical expenses were well over $100,000 for her surgery, a several-day hospital stay, a 3-week stay in a rehab facility, and follow-up treatment until she was released from all her medical care.
We negotiated with her health insurance company to reduce the lien significantly so that after attorney fees, costs, and lien satisfaction, Betty received over $300,000 in tax-free compensation.
The health insurance company was inclined to reduce its lien because it knows that the nature of trip and fall cases is that more than 50% of such jury trials result in a defense verdict because the jury finds that the plaintiff was more than 50% at fault for their own injuries, and other juries allow the plaintiff’s damages to be reduced by any percentage of fault they assign to the plaintiff that is less than 50%.
Under Indiana law, if a plaintiff is found to have comparative fault of more than 50%, then he/she recovers nothing.
Betty and her family were delighted with the outcome, both medically and financially.
Hire an Indianapolis Trip and Fall Lawyer
If you have been injured in an accident of any kind, please call Garrison Law Firm at 317-842-8283 as soon as possible so your rights can be fully protected from the start.
Time is of the essence!
