Slip/Trip and Falls

Let’s start with some common sense: if you trip on your own two feet and get hurt, it’s probably your own fault. But if you trip on puddle of soap suds that somebody else made or failed to clean up, then it’s probably their fault. And if that person refuses to take responsibility, the law can make them.

If you or a loved one has suffered an injury due to dangerous conditions on another’s property, you may be able to recover damages. In most cases, it is not possible to know who created the danger, but it is possible to know who owned or was otherwise responsible for the land. According to the Commonwealth of Virginia, those who own land have a duty to prevent injuries to people who go there—as a result, they can be sued for failure to prevent such injuries. In other words, if someone fails to keep their property safe, then a Virginia court can hold them responsible for the resulting harm.

All “slip and fall” and “trip and fall” cases are personal injury cases. And personal injury cases are a type of lawsuit known as a tort. In a torts case, someone who says they have been harmed (the “plaintiff”) sues the person or organization that the plaintiff says did the harm (the “defendant”).

For example, let’s go back to the soap puddle situation. Suppose Mr. Plaintiff is shopping at Defendant Supermarket. An employee has left a puddle of soap suds in front of the cash registers. While Mr. Plaintiff walks to the cash register, he does not notice the puddle, slips on it, and hits his head on a nearby shelf, suffering serious injuries. Later, Mr. Plaintiff finds a lawyer and sues Defendant Supermarket. Mr. Plaintiff has started a personal injury case.

To win the case, a plaintiff must show four things to a court:

1. Duty – The plaintiff must show that the defendant had a legal duty to do something or not to do something.
   1. Mr. Plaintiff must show the court that Defendant Supermarket had a legal duty to keep its walking areas free of things (like soap suds) that might cause customers to slip and fall.
      1. Note that Mr. Plaintiff has sued the Defendant Supermarket and not any specific employee of the business. In the eyes of the law, businesses are often responsible for the actions of their on-duty employees.
   2. In cases like this, the plaintiff’s reason for being on the premise determines what duty the defendant has. See “Premises Liability” section below.
2. Breach – The plaintiff must show that the defendant failed in their duty.
   1. Mr. Plaintiff must show the court that, at the time Mr. Plaintiff visited the store, Defendant Supermarket had, by leaving a puddle of soap suds near the cash registers, failed to keep its walking areas free of things that might cause customers to slip and fall.
3. Causation – The plaintiff must show that the defendant’s breach caused harm to the plaintiff.
   1. Mr. Plaintiff must show that he slipped and fell (and hit his head) because Defendant Supermarket left a puddle of soap suds near its cash registers.
4. Damages – The plaintiff must show that they suffered real harm because of the defendant’s breach.
   1. Mr. Plaintiff must show that when he slipped on the puddle of soap suds and hit his head, he received injuries.
   2. Medical records and medical bills are often a very important part of establishing damages.

Premises Liability

In many cases, the plaintiff will choose to sue the owner of the property where the injury occurred. This means that the plaintiff must argue that the owner or person responsible for the property had a duty to prevent or fix hazards on the property—or at a minimum, to warn others about these hazards. This is called premises liability.

Let’s return to some commonsense ideas: if you invite somebody to a party at your house, you should be careful to make sure there is nothing dangerous in your house that might hurt your guest. By contrast, it would be very strange if you had to be just as careful for a burglar who breaks into your house! Thus, the law divides premises liability plaintiffs into three categories: trespasses, licensees, and invitees.

Trespassers

A trespasser is “one who unlawfully enters the land of another.” Generally speaking, landowners have no duty of care to trespassers. So if you were on somebody’s property without permission and got hurt by a hazard there, you will find it difficult to sue them successfully.

This rule grows a bit more complicated if the landowner had reason to know the trespasser was on the property. In those cases, the landowner has a duty to use “reasonable care” to avoid injury. And if a landowner knows that trespassers are routinely entering his or her property and does nothing to stop it, the landowner gains the same duties that he or she would have to licensees (see next section).

Finally, if the trespasser is a child, landowners have a duty to protect that child from “dangerous instrumentalities” on his or her property. This duty appears only if three conditions are met:

• something on the land is physically dangerous,
• the danger is “hidden” or not obvious, and
• the danger is accessible to children and near a place where children gather.

For example, Virginia courts have held that electric wires and explosives—but not barbed wire, road scrapers, or ponds—are “dangerous instrumentalities.”

Licensees

A licensee is “one who enters for his own convenience or benefit with the knowledge and consent, express or implied, of the owner or occupier.” In other words, a licensee is anyone who enters on another’s land with permission but is not an invitee (see next section).

As mentioned in the previous section, a trespasser may become a licensee if the landowner becomes aware of the trespasser’s presence and does nothing about it. Social guests, hunters, and employees who remain in areas where they have no work to do may also be licensees.

A landowner’s duty of care to licensees is similar to a landowner’s duty of care to trespassers. In both cases, the person visiting the land is expected to look out and protect themselves from dangers.

There are, however, two exceptions. First, if the landowner knows about a hidden danger on the land (or should know about it), they must make it less dangerous—or at least warn licensees of the danger. Second, if the landowner is actively engaged in a dangerous activity on the land, they need to exercise “reasonable care” not to injure any licensees.

Invitees

On first glance, it might seem that an “invitee” is anyone invited onto a property. However, the law is a little more complicated than that: although people invited onto property are usually invitees, some invited persons, such as social guests, are legally “licensees.” A more accurate explanation would be that an invitee is invited onto a property to take part in the landowner’s business. Thus, invitees are sometimes called “business visitors.”

Keep in mind that “business” can go beyond commercial activities to include things like government or charity work. As a result, customers, employees, independent contractors, and tenants of a landowner are all considered invitees. Other groups considered invitees include delivery workers, parishioners (at a place of worship), spectators (at a theatre or sports event), real estate agents hospital visitors, hotel guests, people seeking directions, and emergency responders (such as police officers and firefighters).

Example: Because Mr. Plaintiff was a customer of Defendant Supermarket when he slipped and fell, he is legally an invitee of Defendant Supermarket. This improves the chance that Mr. Plaintiff can successfully sue Defendant Supermarket.

Landowners have a greater duty of care to invitees than to licensees or trespassers. Of course, as with those other groups, landowners have a duty to warn invitees of hidden hazards on the property. The important difference is that landowners have a duty to keep their premises safe for invitees. This means that landowners must find potentially dangerous parts of the property and to prevent invitees from being injured by them.

Common Affirmative Defenses

While you were reading the material above, you may have thought something like this to yourself: “These rules put a lot of responsibility onto landowners. What if somebody goes onto your land and foolishly puts themselves in danger?”

In situations like this, a defendant can argue that the plaintiff was responsible for their own damages, even though the other elements of a personal injury suit are met. These arguments are called affirmative defenses; the two most common are contributory negligence and assumption of the risk.

Contributory Negligence

A defendant makes a contributory negligence argument when they argue that, regardless of their own duty and breach, the plaintiff had a duty to behave reasonably and to avoid risks to themselves and failed in this duty. If the court believes this argument, the plaintiff instantly loses the lawsuit.

For example, suppose Defendant Supermarket admitted that one of their employees had left a puddle of soap suds in front of the cash registers—but could also prove that Mr. Plaintiff had been playing football in the store when he slipped on the suds. Mr. Plaintiff would probably lose his suit.

Assumption of the Risk

A defendant makes a contributory negligence argument when they argue that, regardless of their own duty and breach, the plaintiff had a duty to watch out for risks to themselves. The important idea in this argument is that the risk, while real, was so obvious that the plaintiff could have easily avoided it by paying attention.

For example, suppose Defendant Supermarket admitted that one of their employees had left a puddle of soap suds in front of the cash registers—but could also prove that the employee had carefully left a “slippery when wet” sign in the puddle while going to fetch a mop, and that Mr. Plaintiff had ignored the sign when he slipped. Mr. Plaintiff would probably lose his suit.

Conclusion

To review, if you have been hurt on somebody else’s property—whether by slip, trip, or any other accidental injury—then you may be entitled to compensation. As soon as you can do so safely, write down as many details of the event as you can remember: where you were, why you were there, how you got hurt, who may have been a witness, and so on. If you seek the advice of an attorney, bring this information to them.

You may be able to sue the owner or operator of the property for damages if you can prove four things: (1) that the defendant had a duty to either prevent or warn you of the hazard which caused your injury, which in turn depends on whether you were a trespasser, licensee, or invitee; (2) that the defendant breached this duty by allowing the hazard to exist or by failing to warn you of it; (3) that the defendant’s failure to fix or warn of the hazard caused your injury; and (4) that you have suffered injuries as a result. In many cases, you must also be prepared to argue that you were not injured as the result of your own carelessness.

This has been a simplified summary of the law; there are many legal and procedural complications that can arise in a given case. By talking to the professional legal representation at Ashburn Law Office, you will be able to hear a more detailed application of the law to your situation, along with advice about the best available course of action.

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