Crash Test

Are you prepared to respond to a slip-and-fall lawsuit?

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Among the thousands of lawsuit types, the two viewed with the most suspicion are the whiplash and the slip-and-fall. Easily abused by unscrupulous plaintiffs, these suits provide great sitcom fodder: A driver barely taps the rear bumper of the car in front of him; the driver of the bumped vehicle staggers out from behind the wheel, cradling the back of his neck; he falls to the ground, writhing in pain. The bumpee claims a lifelong debilitating injury; high jinks ensue.

Then there’s the surveillance video of a woman strolling down a grocery aisle when she spies a puddle of water on the just-mopped floor. She glances around to see if anyone is watching, then lies down in the puddle and proceeds to hold her leg and yell for help.

I’d laugh a lot harder at these scenarios if I hadn’t suffered from an accident myself. About eight years ago, driving on a rain-slicked road, I stopped at an intersection and felt the shocking sensation of a rear-end impact. Yes, my head snapped back and, yes, my neck hurt for a few days. I didn’t go the hospital, though, because I assumed I’d be fine.

But one month later, in the same weather conditions and at the same intersection, I was rear-ended again (no, it wasn’t the same person—this isn’t a tale of time travel). This time, however, I felt dizzy after the impact and I went to the emergency room. The X-ray showed no hard-tissue damage, but it took almost four years for the residual pain in my neck to subside. Hence, I learned that soft-tissue damage is real and often lasting. And although I didn’t sue the perpetrator, as an attorney I came to appreciate the potential seriousness of such lawsuits. As a business owner, it’s important that you appreciate it as well.

The Harder They Fall

The burden of slip-and-fall injuries that occur at places of business lies with business owners. Interestingly, the injuries from slip-and-fall incidents are usually not as traumatic as the events themselves. After all, an actual fall is usually just a few feet to the ground. Sometimes, however, a fall becomes more complicated, and this seems to be what happened to Tonya Hawkins, a client at Vallie Marie Day Spa in Beaumont, Texas.

While visiting the day spa for services, Hawkins allegedly slipped, and then fell down a flight of 15 stairs. She’s claiming injury to her hip, pelvis, left femur, left elbow, arm and her body as a whole.

The lawsuit against Vallie Marie Day Spa was filed in January 2011 for an injury that occurred in October 2009. Why would someone file a lawsuit almost 15 months after an injury? There are good reasons. Investigation takes time. There may be witnesses to interview, medical records to obtain and research to conduct on the major points of law. Further, plaintiffs’ attorneys want to see the full extent of their clients’ injuries before they file. Sometimes it takes a while for medical problems to surface, and it’s wise to wait in order to claim full compensation. Once a client is awarded damages, that ends the matter and the client cannot file a claim for anything that develops after the lawsuit is concluded.

Vallie Marie is being sued for its alleged negligence. To recover damages, the plaintiff must prove that Vallie Marie had a duty of care owed to the plaintiff under law, breached that duty of care and that the breach was the cause of the plaintiff’s injuries.

What is a duty? It varies. Common law duties are established by hundreds of years of cases that have been decided. For example, a product manufacturer has a duty to people who use its product to warn of potential dangers. That’s why the first 19 pages of the 20-page manual that came with the power saw you just bought are filled with warnings. The duties that Vallie Marie might owe to Tonya Hawkins are the same duties most business owners owe to customers who step onto their property.

Simple as that? Of course not.

Pitfalls for Property Owners

The law recognizes three classes of people who come onto other people’s property and the duty of care the landowner owes each is different according to class.

We have the trespasser, who comes onto the property of another without permission (a burglar is a good example). Does a business owner owe a trespasser any duty of care? Yes, she does, albeit a slight one. The duty of care a business owner owes trespassers is to not injure them willfully, wantonly or through gross negligence. So, if a burglar breaks a window in your spa, crawls through and falls into a pit lined with rusty spikes, yes, you may be liable.

Another class of person is a licensee. The licensee enters the property with the owner’s consent, but isn’t there to provide the owner with a financial benefit. A good example is when a homeowner hosts a meeting of the local neighborhood association. The members of the association do not confer any financial benefit to the homeowner because they’re guests, but the homeowner does owe them a duty. As a homeowner, you need to either cover the pit lined with rusty spikes (repair the hazard) or at least warn your guests about it.

The final class is the invitee (sometimes called business invitees). Invitees enter an owner’s property and confer a financial benefit. You, of course, want invitees at your spa. You may even entice people to come, through advertising. Your duty of care is greatest to those people whom you lure onto your property. Therefore, you owe to invitees a duty to protect them from hazards you know about or should have known about. So, if you cover the spike-lined pit with a quarter-inch board, you should have known that the flimsy plywood wouldn’t support the weight of some of your clients.

In more real terms, if your spa’s floor is wet, it needs to be mopped.

Watch Your Step

With the basic principles of law in hand, let’s look at the allegations surrounding Tonya Hawkins’ fall. Here they are verbatim, from the complaint filed on behalf of Hawkins in Jefferson County Court.

On or about October 7, 2009, Plaintiff had an appointment at Defendant’s place of business for a massage and other services. After her massage was over, she went to get dressed for the rest of her appointment. When she entered the shower area, she noticed there were no towels or bath products. Plaintiff used her robe to wipe off the oils and lotions used in the massage and got dressed. When she reached the steps and took her first step, she slipped and fell down the entire flight of steps…

Based on the legal principles just discussed, how may the spa have been negligent? What was the duty the spa owed Tonya Hawkins and was the duty breached? It appears that: 1) When she finished her massage, she was covered with oil; 2) When she went to take a shower there were no towels nor soap with which to remove the oil; 3) She thus used her robe, but wasn’t able to get all the oil off; 4) As a result, she tried to walk with oily feet, subsequently slipped and fell down a flight of stairs.

One must assume that Hawkins is saying the spa had a duty to provide her with a mechanism to remove the oil; the spa’s failure to do so breached that duty and was the cause of her falling down the stairs.

Thin liability, you say? Based on the complaint, I might agree—but discovery has yet to be undertaken. What if a massage therapist who was fired last year testifies that it was standard operating procedure to tell all massage clients to take a post-massage shower to remove excess oils and lotions so they don’t slip? What if this policy was instituted because the year before someone didn’t take a shower and also slipped and fell? What if the attendant responsible for restocking the soap testified that you told her it was very important to keep soap in the shower so people could wash off that slippery oil, but she couldn’t restock because you forgot to put in the soap order because you were on vacation? The possibilities are endless.

The lesson here is that no matter how questionable any complaint appears on the surface, all of them need to be taken seriously. If you get served with a complaint, the first person you should call is your lawyer, who should immediately forward the complaint to your insurer. Complaints and causes of action evolve, and complaints can always be amended to allege additional facts as discovery proceeds. What may seem like a minor slip-up today can turn into a threat to the very existence of a business tomorrow. •

DAYSPA advisory board member Michael L. Antoline, J.D., is a legal affairs writer and attorney in Champaign, Illinois. Information in this column is general. Seek legal counsel for specific cases.