Slip & Fall: Separating Fact from Fiction

The phrase “slip and fall” carries strong connotations for most people. For me personally, it immediately makes me think of Attorney Saul Goodman from AMC’s acclaimed series “Better Call Saul.” For those less familiar with this show, the main character has a somewhat suspect past and even earns the nickname “Slippin’ Jimmy” for his proclivity for faking “slip and falls” in order to make a quick buck.

Knowing that this is what most people think of when they hear “slip and fall,” I thought it might be helpful to write a short post exploring the differences between perception and reality in the slip and fall incidents that we see here in Tennessee.

Are “slip and fall” incidents even a thing? Can’t people just watch where they are walking?

The first answer is a simple yes. Across the united states, millions of people are injured as a result of slip and fall accidents each year, and approximately 85% of worker’s compensation claims involve slip and fall accidents according to the National Flooring Safety Institute (NFSTI) and the Industrial Safety & Occupational Health Markets 5’th Edition.

The second answer is also yes – but with a caveat. Many times, when we are at a business, we are focused on getting whatever product or service we need and getting home or to our next destination as quickly as possible. Our spouse gave us a specific grocery list, our weekend renovation project needs that one tool we don’t have, or we are going to grab a quick bite of food. No matter the reason, our purpose for being there is for something other than just staring at our feet. We’re looking down aisles, at tool racks, or at menus focused on the task ahead. Generally, that isn’t a bad thing. In fact, businesses want you looking at shelves, advertisements, menus etc… But our focus (when paired with an unanticipated hazard) can cause significant injury. When an employee or another customer causes a spill or leaves debris in a walkway, a walkway that we generally expect to be clear, we may be too busy looking ahead to see what is immediately below.

In Tennessee, if you own a property (especially one frequented by the general public) you have a duty to either remove or warn against any known dangerous condition on your property.

For example, if you know that there’s a large puddle of water on the floor near the entrance of your restaurant you have a duty to either mop it up (removing the dangerous condition) or display a wet floor sign (warning visitors of the dangerous condition) until the puddle can be mopped up.

The most common area of debate in a traditional “slip and fall” case is whether the property owner had knowledge (or what many call notice) of the dangerous condition. Their duty to remove or warn is only triggered if they have knowledge of a dangerous condition.

In Tennessee, there are three different ways to establish a property owner’s knowledge of a dangerous condition:

Caused

• The property owner (or their employee or agent) caused or created the dangerous condition.
• Example: A grocery store employee is cleaning the floors during business hours and spills an excessive amount of water right next to the self-checkout. If someone slipped and was injured because of this, you could effectively argue that the grocery store had notice (or knowledge) of the dangerous condition because one of their own employees created the dangerous condition.

Actual

• The property owner actually knew that the condition existed.
• Example: A clumsy customer at the grocery store accidentally spills a gallon of milk in aisle 7 and immediately reports the spill to a store associate – the store associate then promptly forgets about the spill and it remains on the floor for 30 minutes before an unsuspecting mother of three slips on the spilled milk and is injured. In this scenario, the grocery store was put on actual notice when the spill was reported to one of its employees.

Constructive

• The dangerous condition is recurring or existed for such a long period of time that the property owner should have known about it through the exercise of “reasonable diligence.” (See, Parker v. Holiday Hosp. Franchising, Inc., 446 S.W.3d 341, 350 (Tenn. 2014)).
• Example: Every time it rains at John Doe’s Diner, a puddle of water forms at the entrance to the diner – creating a significant hazard. Last night it rained all night causing a puddle like always, but no one at John Doe’s diner cleaned the spill or set up any wet floor signs before opening the diner. An elderly woman, looking for a hearty breakfast, goes to John Doe’s Diner and slips on the puddle while attempting to enter the business – shattering her right elbow. Here, one could argue that this recurring condition (every time it rains = a puddle forms at the entrance) effectively put John Doe’s Diner on constructive notice that the puddle was present at the entrance (which would then trigger their duty to either warn of (wet floor sign) or remove (mop & bucket) the spill).

Given these knowledge requirements, it can be very difficult to establish a slip and fall case – which is why some attorneys don’t handle them anymore. But, if you or a loved one has been injured in a slip, trip, or fall incident it is still well worth it to reach out to an attorney you trust to discuss your case. An experienced personal injury attorney will be able to tell you whether it is worth pursuing or not.

Give us a call at (865) 658-4012 to schedule your free, confidential case evaluation today. And as always, stay safe out there.

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