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The Basics of Trying a Slip and Fall CaseThe Basics of Trying a Slip and Fall Case

The Basics of Trying a Slip and Fall Case

Kirk Simoneau

Lawsuit Information

Naturally, as a premise liability case is a tort; you have to prove duty, breach, causation, and damages.

Ouellette v. Blanchard, 116 NH 552 (1976), moved New Hampshire into the modern era of reasonable foreseeability abandoning notions of invites, terspassers, and other agrarian distinction. In other words, duty and negligence by a landowner determine a case, not the status of entrant. The standard is reasonable care under all circumstances, including how the plaintiff happened to be on the property. The key to all of this, of course, is foreseeability.

A question to ask yourself, the defendant, and the jury to sum up foreseeability is “was the defendant’s conduct reasonable in lught of what he anticipates.” Morse v. Goduti, 146 NH 697 (2001), citing Ouellette v. Blanchard.

What the defendant could anticipate is, of course, determined by what the defendant knew.

Was the defendant aware of the danger, or should he have been? Rallis v. Demoulas, 159 NH 95 (2009), tells us constructive knowledge can be proven by the length of time a hazard - say, a green bean - was on a floor, but that isn’t the only way to prove constructive knowledge. While some states actually shift the burden to a defendant to prove a lack of knowledge by a preponderance of evidence by whatever theory he may.

As to that knowledge, or rather whether a defendant had either actual or constructive knowledge, that is “generally a question of fact for a jury.” Dyer v. Target Corp. 2014 WL 5323069, 2014 DNH 220. So, when proving your case to the jury, be governed by this:

“Under New Hampshie law, premises owners are foverned by the test of reasonable care under all the circumstances in the maintenance and operation of their premises. See Simpson v. Wal-Mart Stores, 144 NH 571, 574, 744 A.2d 625 (1999). A premises owner owes a duty to entrants to use ordinary care to keep the premises in a reasonably safe condition, see True v. Meredith Creamery, 72 NH 154, 156, 55 A. 893 (1903), to warn entrants of dangerous conditions and to take reasonable precautions to protect them against foreseeable dangers arising out of the arrangements or use of the premises. Pridham v. Cash & Carry Bldg. Center, Inc., 116 NH 292, 294-95, 359 A.2d 193 (1976). Accordingly, under New Hampshire law, a premises owner is subject to liability for harm caused to entrants on the premises if the harm results either from: (1) the owner’s failure to carry out his activities with reasonable care; or (2) the owner’s failure to remedy or give warning of a dangerous condition of which he knows or is in the exercise of reasonable care should know. Partin v. Great A & P Tea Co., 102 NH 62, 63-64, 149 A.2d 860 (1959); see Restatement (Second) of Torts sec. 341-A, 343 (1965).” Rallis v. Demoulas, 1959 NH 95 (2009). 

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