Previous Complaints About Existing Hazard

Many wouldn’t rank “walking” high on the list of dangerous activities. But the reality is millions of people suffer devastating injuries as a result of “slip-and-falls” each year. According to the National Safety Council, nearly 9 million visits to hospital emergency rooms annually are attributed to falls, as are 25,000 deaths.

As devastating as these injuries are, there are a few key elements that must be met in order to succeed in a Florida slip-and-fall lawsuit. One of the most important of those is the property owner’s actual or constructive knowledge of the danger. The reasoning behind this is the property owner couldn’t remedy the problem if it wasn’t known.

At Associates and Bruce L. Scheiner, Attorneys for the Injured, we know there are a number of ways to establish knowledge of an existing hazard, but some of the strongest cases are those wherein there were previous complaints.

Previous complaints, particularly those that are well-documented, create powerful evidence in proving knowledge of these hazards by a land or business owner. This is often critical because in many cases, defendant property owners aren’t eager to concede prior knowledge of a hazard. Uncovering it is usually the result of aggressive action by a knowledgeable premises liability attorney.

Cases That Dealt With Previous Complaints

If you are over the age of 30, you likely recall the “hot coffee” lawsuit of the early 1990s, filed after a 79-year-old grandmother spilled hot coffee on herself while a passenger in a vehicle, shortly after pulling away from the drive-thru.

Plaintiff suffered severe burns, and ultimately prevailed at trial, with the jury awarding her $2.7 million in compensation. The case became fodder for comics everywhere, and it was heavily pushed by big business advocates showcasing “the need for tort reform,” as detailed in the documentary “Hot Coffee.”

But there was much the public at-large did not know about the case of Liebeck v. McDonald’s Restaurants, and one of the most stunning details that emerged during trial was that the fast-food chain had received hundreds of previous complaints from customers who had suffered serious burns as a result of skin coming in contact with the beverage – which was 40 to 50 degrees hotter than what is considered “safe.” McDonald’s knew of the serious danger, and yet did nothing to address it.

Knowledge of a hazard to your customers creates a duty to address it, especially when the danger is not obvious.

A more recent example was seen in the case of Averyt v. Wal-Mart Stores in Colorado. Plaintiff was a commercial truck driver who slipped and fell on grease-coated ice at a loading dock while making a delivery at a store. The resulting fall ruptured a disc in her spine, injured her neck and shoulder and ultimately prevented her from doing her job or being able to control bladder or bowel functions.

Plaintiff sued the store on theories of premises liability and negligence. Throughout the discovery process, and even during opening statements, the store vehemently denied there ever was a spill in the area where the driver fell. However, on the very first day of trial, plaintiff’s lawyer received an e-mail from a colleague containing a city memo confirming the store knew there had been a grease spill and had hired a crew to clean it up.

The next day, that information was used at trial to impeach the store’s corporate representative, who denied under oath knowledge of a grease spill. Later, the store did produce a witness who remembered the spill and had made arrangements to have it cleaned. From that point, the store conceded knowledge of the spill on the dock, but asserted instead that it exercised reasonable care in making efforts to clean it up.

A jury rejected this argument, returning a verdict in the driver’ favor and awarding her $15 million, which was later reduced to $9.8 million. The store’s appeals for a new trial were not granted.

Constructive Versus Actual Knowledge

The other reason evidence of previous complaints in slip-and-fall cases is so important is that it can prove actual, rather than constructive, knowledge.

Constructive knowledge is established when a property owner should have known or discovered the danger in the course of exercising reasonable care. Actual knowledge means the owner was put on notice of the problem, either having discovered it first-hand or by way of complaints made.

Many plaintiffs are forced to rely heavily on circumstantial evidence to establish constructive knowledge because the property owner will not come forward to concede knowledge, and there may be no other way to prove it. However, evidence of previous complaints can provide solid proof of actual knowledge, which can be very damaging to a slip-and-fall defendant’s case.

If you or a loved one has been a victim of a slip-and-fall in Southwest Florida, contact Associates and Bruce L. Scheiner, Attorneys for the Injured, for a free and confidential consultation to discuss your rights. There are no fees or costs unless we win. Offices in Fort Myers, Cape Coral, Naples and Port Charlotte.

Call 800-646-1210 for a Free Consultation