It’s the classic “slip & fall case,” a claim that the store was negligent in allowing a dangerous condition to exist that caused the slip.
    
Until recently, a plaintiff could prevail in a slip and fall case only if a store’s employee caused the dangerous condition, the store knew of the dangerous condition or should have known of the dangerous condition because it existed for a long time. The onus was on the plaintiff to prove that the store was at fault. No easy feat. 
    
Lawyers for the defendant traditionally felt that as long as they had the store’s sweep-log, they had enough ammunition to win the case. And for the most part, particularly in Massachusetts, they were correct, as the courts almost always ruled on behalf of the defendant. Because of this, complacency tended to creep into the mindset of some attorneys and claims examiners, resulting in a lack of preparation that can potentially cause their client to fall victim to both large settlements and bad publicity.

The law began to shift in April of 2007, when the Supreme Judicial Court of Massachusetts adopted a new approach to slip and fall cases.   The court adopted the “mode of operation approach” allowing the plaintiff to satisfy the notice requirement if the plaintiff can prove that the injury occurred because of a dangerous condition related to the store’s self service mode of operation.

But it was a wake-up call some attorneys never heard. Even now, over two years after the change in the slip and fall law, many claims examiners and defense attorneys remain complacent and reliant on old proofs.
    
Here’s a perfect example. In July of 2007, a 78-year old grandmother of three walked down the aisle of a major Boston-area supermarket, slipped on some rice, and suffered a broken knee.   On the surface, it seemed like just another day at the office for the attorney of this major supermarket chain. He seemed to be rather callous about the case, trying it as he would all others without considering the variables inherent to the particular situation, such as a very sympathetic plaintiff (a 78-year old woman trying to raise three grandchildren on her own), a very tangible injury (a fractured knee), and the fact that the trial was held on December 7, 2007, just three weeks before Christmas. A legal perfect storm the attorney overlooked.
 
To make matters worse for the defendant, the defense attorney and claims examiner never factored in the  “mode of operation” ruling that the plaintiff could win the case, if it could be shown that the accident was caused by a foreseeable dangerous condition. In this case, the dangerous condition was the rice on the floor, and the mode of operation was that the stacking of the bags of rice by store workers on a metal shelf had created the spillage.
   
Before trial, the judge suggested they offer $10,000 (which I believe the plaintiff would have accepted). Instead, the defense attorney and the claims examiner conferred and came back with an offer of zero dollars. It turned out to be a costly decision. The jury awarded the plaintiff $50,000, which ballooned to just over $55,500 when added costs and interest were tacked on.
   
So, now that we know how a major employer got into this position, what can be done to assure that other businesses don’t also fall into the same trap? There are several steps that can be taken:

1. Review your company’s polices and procedures. Make certain it points out explicitly what potential problems store managers and other employees should be looking out for, particularly in the areas of spillage and breakage.  In this case, a piece of sharp plastic caused the bag of rice to tear when it was stocked on the shelf, creating the “mode of operation” ruling.

2. Know the Plaintiff.  Check to see if there is a pattern of lawsuits and do a medical exam, if warranted, to see if causation is an issue. Causation is one of the essential elements that a plaintiff must prove in a personal injury action.  Simply put, the defendant's negligence must be the “legal or proximate cause” of the plaintiff's injuries.  But that’s not to say a medical exam, and the costs associated with it, is needed in every case.    

For example, in the case of the grandmother, she fell and fractured her patella. The x-ray showing the fracture was taken within hours after the fall. Causation was not an issue in this case. There was no real reason in this case to pay for a doctor to examine the plaintiff, draft a report and possibly testify at trial, at a cost of thousands of dollars.

On the other hand, if this particular plaintiff had slipped and fallen and alleged an injury to her lower back, visited orthopedic doctors and physical therapists for several months, and the resulting diagnosis was a bulging disc as a result of the fall, causing a percentage of permanent impairment, then your antenna should go up. In such a scenario, causation is a big issue.  You should have the plaintiff examined by a doctor who can provide an opinion as to whether the fall caused the bulging disc, or if it was a pre-existing condition.

3. Think out of the box when it comes to risk management. Companies tend to rely too much on computers and formulas when attempting to come up with settlement offers. But what you need to do is put a human component into your evaluation. Ask yourself the most important question, “How likeable will the plaintiff appear to the jury?”
    
Don’t make the mistake of cookie-cutting each settlement based on other cases. The plaintiff in the supermarket case might not have been Mother Theresa, but a 78-year old grandmother, struggling to raise three children, now out of commission with a fractured knee, just before Christmas, is about as close to a blank check for a jury as they come.  Ultimately, a claim is worth what a jury will give, not what the computer says.

4. Finally, listen to your attorney’s advice. Make this a priority in the proceedings. Your attorney knows the legal system, has hopefully performed all the necessary due diligence in the case, and can give you an honest and forthright risk assessment, one that can save you a multitude of headaches down the road, and just as many dollars.  Don’t wait until the eve of trial for this information, your attorney should provide you with assessments early and often.

By following these four simple steps during a slip & fall lawsuit, you can take the fate of your business out of the hands of a potentially sympathetic jury, and any decision that might come forth for a potentially damaging settlement.

Michael Maniscalco is a partner in the law practice of Maniscalco & DiOrio in Quincy, MA. Michael has spent his entire career litigating personal injury claims as both a plaintiff’s and defense attorney, successfully litigating hundreds of cases in Superior and District Courts. He is a graduate of Suffolk University School of Law (J.D., 1991 Cum Laude), Boston University (B.A., 1987). He can be reached at 617-847-4343 and michael@lawyersact.com. His website is www.lawyersact.com