Every premises liability case is defendable if the commercial business has procedures in place for inspections, cleaning and maintenance, and those procedures are carried out. Most commonly, businesses are sued due to a slip and fall or a trip and fall accident. And most commonly, people are caused to slip or trip and fall due to something on the floor that should not be there. And finally, most commonly, this is a transient condition, for example dropped paper or spilled soda. Juries have come to respect commercial businesses that make safety a top priority.
Most commercial businesses have written procedures their employees are expected to follow to ensure the premises remain clean and safe. A transient condition case can be successfully defended if the employees had procedures in place for inspecting and cleaning; those procedures were followed on the day and at the time at issue; and the last time the location of the accident was inspected prior to the Plaintiff’s fall was X minutes prior. While there may not be a magic number as to how close in time is close enough, this lack of notice type defense has proven successful time and time again. Of course, the closer in time the better but the most important point is that juries understand that efforts were made to keep the premises safe, and that alone can be enough.
Juries can understand that a commercial business cannot eliminate every possible hazard in existence. Juries can understand that a commercial business only needs to do what is reasonably necessary to keep the premises reasonably safe. If a business can show it took reasonable measures, a jury can be convinced that liability should not rest with that business. Juries want to know that safety is a top priority.
There are a few things that need to come together for this type of defense to be successful. First, the procedures need to be in place, whether written or otherwise known, and the procedures need to be consistently known by all employees. It helps when the employees receive training on the procedures so they can each testify truthfully and consistently to what is required of them as employees and what is actually carried out on the job. Next, the procedures must be followed. This requires that every employee, from the employee performing the inspecting and cleaning to the employee overseeing the work, knows the procedures and that the procedures were being followed on that particular day. This means the procedures should be followed at all times for this to be a credible defense. Finally, when the last inspection and/or cleaning took place requires memory of the event. This is where initial investigation following the incident becomes extremely important.
The biggest problem I face, as a defense attorney, is not having a witness available who remembers details. For instance, when the last inspection and/or cleaning was performed or who was working on that day. It is, therefore, crucial to document this type of information at the time the incident takes place and that includes witness information, all employees working at the time with their full names, dates of birth and contact information, and the extent of their knowledge about the incident, if any. When a transient condition is involved, the employee responsible for inspecting and cleaning the location and the last inspection time are crucial pieces of information that should be documented at that time. These are details easily forgotten with the passage of time.
The bottom line is, the more information preserved from the time of the incident, the more defendable the case becomes. Two or more years (depending on which state you are in) will pass before the injured person files a lawsuit and most wait the full time before filing. Therefore, when we are looking at this, 2, 3, 4 years later, witness’s memories will fade and witnesses will disappear. Therefore, preservation of evidence is crucial.
Ultimately, if a commercial business can show a jury that it was being reasonable, had reasonable measures in place to ensure the safety of its customers and that its employees were doing their jobs, the average jury will put their sympathies aside and weigh the efforts of the business against personal responsibility for one’s own safety, and be more likely to render a decision against poor Grandma and dismiss a case against a big business.
Have procedures in place, educate your employees on those procedures, ensure those procedures are followed and preserve the evidence in the event of an accident and these business practices will pay off when there is an accident. Make safety a top priority for your business.
Stay tune for more in an upcoming Risk Roundtable episode on May 4.