Practicing personal injury law in the Midwest provides the opportunity for many potential clients who have been injured on someone else’s property. The winter ice storms, snow storms along with melting and refreezing creates hazardous conditions for pedestrians. Most people won’t call a lawyer for minor bumps and bruises but those with broken ankles, wrists, arms or ruptured discs will call the lawyer’s office. The problems I see with these cases are varied although there are a few main categories that deserve discussion.
Broken Wrist Injury
A broken wrist is common following a fall on an outstretched hand. A Colles fracture is a fracture of the Radius bone of the forearm, just above the wrist (a Scaphoid fracture is the other common type of wrist fracture). Symptoms include a great deal of wrist pain, a "dinner fork" deformity, wrist swelling and an inability to use the wrist and hand. If a wrist fracture is suspected the patient should be taken to an accident and emergency department without delay.
First understand that you have to prove there was an unreasonably dangerous condition (UDC) that existed on the property. Depending on the use of the property that UDC can take several forms. For instance, if it’s a store where customers are invited to visit, expected to visit and is purposefully distracted with advertisements, then the proprietor is required to anticipate customers will not necessarily recognize and protect themselves from icy conditions. Because the store owner can anticipate this it requires some action on the store owner’s part; sand and salt along with keeping sidewalks clear of ice and snow. If the icy condition is especially difficult to clear then a warning sign, such as the yellow bi-fold sign you see janitor’s use, may be required. The way the law works is the person with the duty must first attempt to make the condition less dangerous and if that’s not possible then to warn those expected to come into contact with it.
While we are discussing conditions let’s talk about artificial conditions. Have you ever seen a downspout that empties right onto a sidewalk? Yeah, me too. The problem occurs with roof ice melting then draining down the spout and refreezing on the sidewalk. That’s known as an artificial condition or man-made condition, which creates a risk. But for the man-made condition the risk would not exist. But for the condition being obvious this is one of the easier ways in which to establish landowner liability.
So what do I normally hear from clients concerning the accident location? About ninety-percent say the same thing. Most everyone says it was slippery or slick. Well folks most of the Midwest is slippery after a storm. Just saying it was slick or icy isn’t enough to prove liability. Slippery conditions existing outside, in the Midwest states during the winter months, isn’t in and of itself, a property defect. And yes, you still have to prove there was a legal defect in the property; or some condition that is unreasonably dangerous. Just testifying you fell and were hurt won’t be enough.
So how do you prove a property defect? More specifically, how do you months later prove a defect long after the snow and ice have melted? To understand the problem let’s go back to the instance after you’ve fallen. Most people are embarrassed, quickly get up, dust themselves off and try to escape the situation. Okay, after falling you’re embarrassed. First you need to get over it and see how you feel. If there is a broken bone or it feels like there is broken bone you need medical attention. But realize that the minute after you leave to get medical attention the attendant employee will run outside and alter the situation with ice melt or sand. So if you’re with someone, a potential witness, ask them to survey the situation along with you. What do you see? Note specifically the size of the icy spot where you fell, the source of the ice, whether it’s from an artificial condition, whether anyone has put sand or ice melt down and the extent of the conditions. By that I mean how large is the icy patch and did the proprietor take any precautions to protect the store patrons from slipping on ice? Is there a warning sign drawing the customers’ attention to the fact that icy conditions may exist and be hidden?
At the accident scene in general people are not likely to be thinking about suing anyone. It’s human nature to be first forgiving. I understand human nature; after 28 years I also appreciate the nature of the insurance business. Deny, deny and deny some more. You see it’s up to the injured person to be able to prove liability. That means if you have a cell phone camera or any camera for that matter, take it out and take some pictures. Don’t be embarrassed or ashamed. Just do it. If anyone says anything to you ask for their name and contact information because sooner or later you’ll need independent witnesses and this is as good a time as any to preserve who those witnesses might be.
Remember, it’s YOUR responsibility to prove liability. Just falling and getting hurt on someone’s property won’t be enough to trigger coverage under the liability portion of the policy. Contacting a lawyer in June about something that occurred in February makes proving your case next to impossible.
Teenagers Slip and Fall on Ice – Shows generally how icy conditions may not be clearly visible.
Worker Slips and Falls While Closing Doors – Security Camera
Parking Lot Slip and Fall – Security Camera (start at 50 sec.)
Sometime in the future I’ll discuss interior conditions that may be considered to be unreasonbly dangerous. Until then here is a video clip that might help you.
Can Polished Concrete Be Slippery? #40C ConcreteNetwork.com