As noted by the 1992 Indiana Court of Appeals ruling in Barsz v. Max Shapiro, Inc., allowing the existence of a hazardous substance on the floor of a business can be a breach of the duty to exercise reasonable care (an essential element in any personal injury lawsuit rooted in the legal theory of negligence). However, before liability can be imposed on the invitor/property owner in such a case, one must first establish the property owner/controller had actual or constructive knowledge of the hazard. Actual knowledge is established if the defendant was informed or knew about that particular hazard existing at that time and location. Another 1992 premises liability ruling by the Indiana Supreme Court, Wal Mart Stores, Inc. v. Blaylock, held that constructive knowledge can be established if the plaintiff can show the condition existed for such a length of time and under such circumstances that it would have been discovered in time to have prevented the injury if the storekeeper, its agents, or its employees had used ordinary care.

In the most recent case, the federal appeals court explained the facts of the case as follows. It was a cold day when the plaintiff arrived at a pharmacy store in Hebron, where a snowplow was just exiting the parking lot. She spent some time in the store and then was walking to the registers when she slipped and fell. She saw nothing on the floor that would have caused her fall. She simply felt her foot make contact with something wet, she slipped, and all her weight landed on her left knee before she fell backward onto her back. She suffered a broken kneecap and back injuries. more

Another customer did not recall seeing anything on the floor, and neither did the manager. A friend of the plaintiff’s, who arrived about seven minutes after the incident, took several photographs that seemed to show “water everywhere.” Several puddles of water existed in the general area where the plaintiff had fallen.

Paramedics who responded to the scene later told investigators the plaintiff had told them she was walking and slipped on something wet in the store. A doctor noted the same thing. Those statements were later excluded from evidence as hearsay.

The plaintiff filed her lawsuit in state court, but the defendant moved it to federal court. The judge concluded the plaintiff failed to show the store’s negligence caused her injury and granted summary judgment to the defense. The plaintiff appealed.

The plaintiff argued the store had knowledge of the hazard because the assistant manager of the store admitted anytime there was snow outside (as there was on this particular day), there was a possibility customers could track snow into the building and create potential hazards. However, the federal appeals court ruled that just because a hazard was possible doesn’t mean they were aware it had actually materialized in the place the plaintiff fell. The law doesn’t hold a store owner liable for a fall that occurs before it has a chance to remove the foreign substance from the floor.

Our Munster slip-and-fall attorneys recognize these cases are challenging, but we also understand how to overcome many of these challenges and help you ascertain early in the process whether you have a viable lawsuit.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Additional Resources: Austin v. Walgreen Co., March 23, 2018, U.S. Court of Appeals for the Seventh Circuit

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According to court records in the case, the question was whether the trial court erred, even though the evidence tended to show the plaintiff, as a business invitee, knew about the dangerous condition on the floor.

The appellate court justices ruled there remained a genuine issue of material fact as to whether the owner of the property should have anticipated the plaintiff’s harm, despite her knowledge of the danger. Therefore, the trial court’s ruling was reversed and the case remanded for further proceedings.

The incident in question occurred in January 2011. The plaintiff’s husband was a patient at the defendant hospital. She had visited him there numerous times on previous occasions. During these visits, her husband would request from her a drink of water. She would oblige, and when he was finished, he would give the glass back to her, and she would return it to the table from which she had gotten it.

On one occasion, the plaintiff was returning the glass of water back to the table when she tripped over wires that were running along the floor underneath the table. This resulted in a severe injury to the plaintiff.

Later, during a deposition, she was asked whether she had to walk over the wires to get the water. She said she did. Asked whether she stepped over them, the plaintiff replied no, she simply walked over them. She agreed with a defense lawyer that if she had looked down when returning the glass of water, she “probably” would have seen the wires.

Unfortunately, while the plaintiff hired a law firm to represent her in a claim of negligence, the attorney failed to file the Indiana personal injury lawsuit within the relevant statute of limitations. She subsequently filed a complaint for legal malpractice against the law firm. The law firm moved for summary judgment. In granting that request, the trial court noted that to prove causation in a claim of legal malpractice, the plaintiff needed to show that but for the law firm’s negligence, the outcome of the personal injury lawsuit against the hospital would have been more favorable. Therefore, she had to prove the hospital breached its duty to her as a business invitee.

The trial court ruled the plaintiff failed to meet her burden in showing a genuine issue of material fact existed about whether she would have obtained a more favorable outcome. The court noted the legal malpractice claim required her to prove “a case-within-a-case.” The law firm had to show that even if it had filed the claim against the hospital in a timely manner, the plaintiff would have been no better off than in the situation in which its alleged negligence placed her. Thus, if the law firm could show the hospital didn’t breach its duty of care – i.e., the hazard was open and obvious – it wouldn’t have mattered if the lawsuit was timely filed.

The plaintiff needed to show the hospital owed her a duty, it breached the duty, and her injury was proximately caused by that breach. Indiana’s Restatement of Torts holds that landowners are liable for harm to invitees if – and only if – the landowner knew or should have known about the dangerous condition and should have realized it posed an unreasonable risk of harm. Plaintiffs must also show the landowner should have expected invitees would not discover the danger or would fail to protect themselves from that danger, and the landowner failed to exercise reasonable care in protecting invitees.

Here, the plaintiff testified that she had seen the wires and walked over them once, and presumably she would have seen them again had she looked down. Thus, there was no question the plaintiff knew about the hazard. However, the appeals court ruled the trial court never got to the issue of whether the landowner could have and should have anticipated the dangerous condition would cause physical harm to an invitee, notwithstanding its obvious or known danger.

Therefore, the case was remanded back to the trial court for further consideration.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Additional Resources: Roumbos v. Vazanellis, Feb. 24, 2017, Indiana Court of Appeals

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Each year, falls account for over 8 million hospital emergency room visits, representing the leading cause of visits (more than 21 percent). Slips and falls account for over 1 million visits, or about 12 percent of total falls.

What’s worse is that close to 2,000 people die in these kinds of accidents each and every year. And it’s out older population that we’ve got to worry about the most here. As a matter of fact, one out of every three elderly individuals (those over the age of 65) are expected to experience a serious slip, trip or fall accident. Half of these incidents will be repeat accidents for these elderly individuals.

The Centers for Disease Control and Prevention (CDC) categorizes falls into two basic types: elevated falls and same-level falls. Same-level falls are more common and therefore cause more injuries to more people, but elevated falls are the most serious and cause more severe injuries to a less number of people.

But there are ways that you can help to reduce these risks:

-Make sure you’re wearing shoes with traction. You don’t want to walk around in slippery shoes. That’s just an accident waiting to happen.

-Slow it down. There’s no need to rush, especially when rushing only increases your risks for an accident.

-Be cautious when getting in and out of your vehicle. When getting in or out of your vehicle in slippery conditions, try to maintain at least three point contact at all times. That is to say that two hands and a foot or two feet and a hand should be in contact with the vehicle or ground at all times (four point contact is even safer).

-Keep walkways clean. Avoid leaving power chords, rugs or any other debris in walkways,

-Make sure that your home is well lit. Brighter lights are going to help you to see these slip and fall risks and dangers and avoid them altogether.

-Use absorbent mats in entrance ways during inclement weather. more Indiana Personal Injury Attorney Burton A. Padove handles injury cases throughout Northern Indiana. Call 219-836-2200 for a free and confidential consultation to discuss your rights. More Blog Entries: Indiana SUV Buyers Beware – Safety and Reliability are Not Always Priorities, Indiana Injury and Family Lawyer Blog, May 26, 2013 Malpractice Watch: Indiana Hospital Infections an Ongoing Concern, Indiana Injury and Family Lawyer Blog, May 22, 2013