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Case Selection for a Slip and Fall CaseCase Selection for a Slip and Fall Case

Case Selection for a Slip and Fall Case

Kirk Simoneau

Lawsuit Information

In lawyering, at least as a plaintiff’s trial lawyer, everything comes down to case selection. This is no more true than in slip, trip, and fall cases. These cases are simultaneously simple and difficult. They are simple in that the fact patterns are not complicated; difficult in that everyone falls, so liability can be tough. 

These are some basic rules of thumb to help deselect bad cases. First, ask for photos. As discussed later, if you don’t have good, easy to see photos of a defect, you have a tough slog ahead of you. Next, evaluate the damages. You’ll need a safety expert, which costs money, so truly only cases with significant injuries are worth pursuing. Avoid soft tissue and sprain type injuries as the damages won’t justify the expense and you may well cost your client money. Traumatic brain injuries, broken bones, and permanent injuries, however, warrant further investigation.

The good news is in these cases you don’t need an expert to give you an initial opinion. Trips are the most basic type of case and are simple to evaluate yourself if you have access to the fall site and a ruler. The Uniform Building Code does not allow for changes in level of more than 1/2 inch. Again, this is just a quick way to evaluate your case, but if ythe level change your potential client tripped over isn’t more than 1/2 inch, you probably don’t have a case. For further guidance, in addition to building codes, look to the Americans with Disabilities Act which uses two design standards: the Code of Federal Regulations (24 CFR Part 40) and the American National Standard Institute (ANSI 7117.1 - 1986). 

Slips are more complicated and require one to calculate the coefficient of friction, or in Kirk-speak, the degree of slipperiness. Even with this calculation, there are two important measurements: static and dynamic. Static is the slipperiness when the slip starts; dynamic is the slipperiness as it is happening. Here’s what you need to know for the case selection and the epic battle to come: dynamic coefficient of friction is 75% less than static. Static is your number so make sure that is the number you evaluate when deciding if the surface was negligently slippery. A COF less than 0.5 is too slippery. If you get a quick expert evaluation over 0.5, you may rethink taking the case.

Another factor to consider is who your defendants are. You want to find a defendant with a large commercial policy, so remember, in New Hampshire, property owners have a non-delegable duty. See Valenti v. Net Property Management, Inc., 142 NH 633 (1998). In other words, a property owner can’t avoid suit by saying he relied on his tenant to keep a property safe. Beware though, of the plowing certification statute: see RSA 489-C. This creates immunity for certified plow operators. So make sure the certification was up to date at the tim eof your injury.

Bear in mind also, you should not name just one defendant. Often parties - landowners and retail tenants, among others - have all manner of indemnity agreements. You want all parties joined so you can resolve everything at a single mediation or trial.

Other considerations not specific to this case involve jurisdiction, the likability of the client, and a host of other trial factors. These are too numerous to detail here. Instead, let’s forcus on the most important piece of a slip, trip, or fall case - the video or photo demonstrating the defect.

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