Slip and Fall Accidents

Man Injured in Hotel Slip-and-Fall Accident Seeks to Hold Hotel Liable

November 8, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in Kentucky issued a written opinion in a premises liability case involving a man who slipped and fell while trying to get into the shower at the defendant hotel. In the case, Goodwin v. Al J. Schneider, the court held that the lower court erred in dismissing the plaintiff’s claim for his own failure to take reasonable precautions in entering the shower. Specifically, the state’s high court held that the lower courts mistakenly determined that the defendant did not have a duty to protect Goodwin.

The Facts of the Case

Goodwin and his wife were staying at the defendant hotel for a conference. On the second day of his stay, Goodwin fell while he was entering the shower. Evidence presented at trial showed that the bathroom did have a hand rail to assist guests in entering the shower, but it did not have a bath mat. However, other rooms in the hotel had both a bath mat and a hand rail. Goodwin filed a premises liability lawsuit against the hotel, seeking compensation for the injuries he sustained in the fall. He claimed that the hotel should have provided additional protection and that the hotel’s failure to do so was negligent.

The trial court hearing the case granted the defendant’s motion for summary judgement, stating that the hotel did not have a duty to provide bath mats in all rooms and that the hotel is not “an insurer of a guest’s safety.” The court reasoned that a wet shower is an “open and obvious” hazard, and the defendant did not have a duty to remedy the hazard. The court of appeals affirmed.

The Various Theories of Recovery in a Premises Liability Case

June 23, 2016 | Lebowitz & Mzhen

Premises liability lawsuits, more commonly known as slip-and-fall cases, are based on the legal theory of negligence. Essentially, these claims rely on the the duty that a landowner or occupier owes to those people who are invited onto its land. Historically, there have been three classes of “guests”: invitees, licensees, and trespassers.

Invitees are owed the highest duty from landowners. Most commonly, invitees are customers of a business. Licensees are the next-most protected group, and they consist of social guests. Finally, trespassers are owed the most minimal duty, and generally this only requires that a landowner not employ traps or other devices to intentionally harm the trespasser.

Theories of Recovery Available to Premises Liability Plaintiffs

When someone is injured on the land of another, they may file a lawsuit against the landowner. The duty owed to the plaintiff will depend on their classification above. Once the plaintiff’s status is determined, the court will then determine if the defendant violated that duty of care. This can result in one or more of several available claims. A recent premises liability case arising out of a slip-and-fall accident outside a hotel illustrates several potential theories of liability.

Hot Air Balloon Operator Not Entitled to Immunity under Recreational Use Statute

April 15, 2016 | Lebowitz & Mzhen

Earlier this month, the state supreme court in Wisconsin issued an opinion holding that a hot air balloon operator was not entitled to immunity under the state’s recreational use statute. In the case, Roberts v. T.H.E. Insurance Co., the court determined that a hot air balloon operator is neither an owner nor an occupier of the land on which it operates, and it is therefore not entitled to immunity.

The Facts of the Case

Ms. Roberts was at a charity event hosted at a local gun club when she was injured while waiting in line to take a tethered hot air balloon ride. According to the court’s written opinion, the defendant hot air balloon operator was providing free rides to help support the charity event. People interested in taking a free ride would line up, and an employee of the hot air balloon company would hand out waivers of release for each person to sign. The wait to get up in a balloon was about 20-30 minutes.

As Ms. Roberts was waiting, a strong wind broke the balloon free of the tethers, and it came swinging into the line of those waiting to ride in the balloon. It struck Ms. Roberts, and she fell to the ground, sustaining injuries as a result. Afterwards, she filed a lawsuit against the defendant, the operator of the hot air balloon.

Court Holds City Employee Not Entitled to Immunity as a “Land Owner”

April 1, 2016 | Lebowitz & Mzhen

Earlier this month, one state’s highest court issued an opinion interpreting the state’s recreational use statute, determining that a city employee named in his individual capacity is not entitled to governmental immunity as a “land owner” for the land he was in charge of maintaining. In the case, Johnson v. Gibson, the court determined that the plaintiff’s lawsuit should be permitted to move forward against the allegedly negligent employee and his supervisor.

The Facts of the Case

The plaintiff was injured while jogging in a city-owned park when she stepped in a small hole that had been dug to repair a sprinkler. The hole was dug by one of the defendants named in the lawsuit, who was a city employee in charge of park maintenance. The lawsuit also named the employee’s supervisor.

At trial, the defendants asked the court to dismiss the case against them, based on the fact that they were entitled to government immunity as city employees. Generally speaking, governments and private land owners alike are immune from personal injury lawsuits that occur on their land, as long as the land is open for use to the public without a fee. However, in this case the court determined that the city employee was not a “land owner” who had opened his land up for use by the public.

Slip-and-Fall Plaintiff’s Case Against Federal Government Allowed To Proceed, Despite Immunity Claims

January 19, 2016 | Lebowitz & Mzhen

Earlier this month, the Fifth Circuit Court of Appeals decided a case that may have wide-ranging implications for slip-and-fall plaintiffs injured on government land. In the case, Gibson v. United States of America, the court determined that the federal government’s normal sovereign immunity from tort lawsuits did not attach, and the case should proceed to trial.

Gibson v. United States: The Facts of the Case

The plaintiff, Gibson, suffered a fractured leg while he was on federal government property inspecting Federal Emergency Medical Association (FEMA) trailers that were scheduled to be later sold at auction. The evidence presented indicated that the trailers were on a several hundred-acre, fenced-in lot containing hundreds of trailers.

On the day in question, the plaintiff was with a FEMA employee inspecting the trailers. Some of the trailers had pull-out steps to assist with entry and exit, while others did not. For those that did not have steps, the FEMA employee had her own step ladder she carried with her. She would set up the step ladder along the side of the trailer and would enter and exit that way.

State Supreme Court Finds in Favor of Slip-and-Fall Victim on Sovereign Immunity Issue

October 7, 2015 | Lebowitz & Mzhen

Earlier this month, the Texas Supreme Court decided a case in favor of a slip-and-fall plaintiff who was injured when they were spectating at a local softball game. In the case, Lawson v. City of Diboll, the plaintiff was injured when she tripped and fell on a hollow pipe that was protruding out of the sidewalk.

Evidently, the woman tripped on a hollow pipe that was protruding about four inches above the pavement. The pipe was painted yellow and usually had a pole inside it that prevented vehicles from driving onto the field. However, on the day in question the pole was not stuck in the pipe, and the only indication of the pipe’s existence was its bright yellow color.

The woman sued the City of Diboll, who owned and operated the fields, claiming that the City violated its duty of ordinary care by creating an unreasonable risk of harm and failing to “provide a safe walkway passage free of obstacles.”

Court Allows Plaintiff’s Case to Proceed Against Allegedly Negligent Gym in Premises Liability Action

June 17, 2015 | Lebowitz & Mzhen

Earlier this month, an appellate court in California heard a premises liability case involving an injury that occurred in a gym. In the case, Jimenez v. 24 Hour Fitness USA, the plaintiff was injured while running on a treadmill in one of the defendant’s gym locations.

Evidently, the plaintiff fell backwards off the treadmill, and as she fell she hit her head on an exposed steel foot of another exercise machine that was placed less than four feet away from the rear of the treadmill. She ended up fracturing the right occipital and right temporal bones in her skull.

At trial, the plaintiff’s theory was that the gym was negligent for placing other machinery so close to the rear of the treadmill. To support her claim, she submitted the user’s manual of the treadmill into evidence, since it recommended that an area of six feet be left behind the treadmill for user safety.

Student Loses Slip-and-Fall Against School for Failing to Prove School’s Negligence

February 17, 2015 | Lebowitz & Mzhen

Earlier this year, the Wyoming Supreme Court heard a case brought by an eighth-grade student against her middle school. The student, who slipped and fell while changing after a mandatory swimming class, claimed that the school was negligent “in the operation and maintenance” of the school’s locker room, where the accident occurred. After the fall, the girl was diagnosed with disc herniation in her lumbar spine and had to undergo three corrective surgeries as a result.

According to court documents, the girl pointed to the inadequate draining in the shower area as evidence of the school’s negligence. Evidently, the drain was backing up, and water from the shower area spilled over into the changing area, where the girl slipped as she approached a friend to borrow a comb.

The School’s Response to the Lawsuit

In response to the allegations brought forth by the girl, the school claimed that it was not negligent in failing to maintain a safe locker room. Specifically, the school claimed that it could not be held liable for the dangerous condition (the slippery floor) because it had no notice that the condition existed in the first place. Alternatively, the school claimed that it was immune from suit under local Wyoming law.

DC Court of Appeals Dismisses Slip-and-Fall Plaintiff’s Suit Because the Defect in the Pavement Was “De Minimis”

May 20, 2014 | Lebowitz & Mzhen

Due to a city’s relationship with its citizens, and the fact that the city’s taxpayers pay for the sidewalks and roads, cities have a duty to ensure that they are maintained in a reasonably safe manner. Thus, when a person falls while walking on the sidewalk, and that fall was due to a defect in the pavement (such as a hole in the sidewalk or missing bricks), that person may seek recovery for their injuries from the municipality in which the injury occurred.

However, courts have routinely held that when a defect in pavement is so small that the city could have no way of knowing that there was a problem, and thus having no way to fix it, the city cannot be held liable. That is exactly what happened in a recent case in front of the DC Court of Appeals.

Briscoe v. District of Columbia

In the recent case, Briscoe v. District of Columbia, the plaintiff tripped and fell on the sidewalk outside her home. Before trial, the District of Columbia moved to dismiss the suit, arguing that the crack in the pavement was so small that they could have had no way of knowing it even existed. The trial court viewed pictures of the defect and agreed, dismissing the suit against the District of Columbia.

Kroger Green Bean Slip & Fall Case Demonstrates Considerations for whether Personal Injury Cases Remain in Federal or State Court

December 10, 2013 | Lebowitz & Mzhen

Many times in personal injury lawsuits involving corporate defendants, an issue will arise as to whether the claim properly belongs in federal or state court. Defendants who maintain offices within different states than where the accident occurred may prefer federal court for many reasons. However, removing a lawsuit to federal court can only occur in one of two scenarios.

The first is when there is a federal issue involved. This means that the underlying cause of action arises out of some federal law or right that has been violated, such as a constitutional right, or in personal injury cases, those claims arising out of the Federal Tort Claims Act, for example.

The second scenario arises when the underlying issue arises out of what would otherwise be considered a state law matter, but the amount in controversy exceeds $75,000 and there is diversity of citizenship– meaning that the plaintiffs and defendants are residents of different states. For purposes of these types of cases, there must be complete diversity, which occurs only “when no party shares common citizenship with any party on the other side.”