Food Forum: Handling slip-and-fall cases

Grocers need to rethink their approach as the law shifts in slip-and-fall lawsuits.

By Michael Maniscalco, Esq.

It’s a scenario that plays out in countless grocery stores across the country. A person slips on the floor and a lawsuit springs up seemingly before the plaintiff even hits the ground.

It’s the classic “slip and 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 they were correct, as the courts almost always ruled on behalf of the defendant.

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, more than three 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, trying this case as he would others. However, he failed to consider 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 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. Instead, the defense attorney and the claims examiner conferred and came back with an offer of no money. 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:

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.

Know the plaintiff.  Check to see if there is a pattern of lawsuits and do a medical exam, if warranted. Think out of the box when it comes to risk management. Companies tend to rely too much on computers and formulas while ignoring the human component. Ask yourself the most important question, “How likeable will the plaintiff appear to the jury?” Ultimately, a claim is worth what a jury will give, not what the computer says.

Finally, listen to your attorney’s advice. 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 and dollars down the road.

Michael Maniscalco is a partner in the law practice of Maniscalco & DiOrio in Quincy, Mass. He can be reached at 617-847-4343, or at  mike@maniscalcoanddiorio.com.

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