Pam: This is Fighting For What’s Right, with personal injury attorney, Barry Doyle.
So, Barry, are there other things that make slip and fall cases difficult to win?
Barry Doyle: Slip and fall cases are difficult, because you really kind of have to thread the needle. To begin with, you need to identify the proper defendants. You need to establish the presence of a defect or hazard on the property that caused the fall. Besides those things, you actually need to establish the defendant’s notice of the presence of the hazard, while also explaining at the same time why the plaintiff was unaware of it. And this cuts both ways. If it was such a small hazard that the plaintiff was unaware of it, then the defendant has the argument that they shouldn’t have been aware of it either. On the flip side, if it was big enough that the defendant should’ve been aware of it, then you walk yourself into a second defense called the open and obvious defense.
Pam: So what is the open and obvious defense?
Barry Doyle: So the open and obvious defense is a doctrine in the law that says that if a defect or hazard on the property is open and obvious, the defendant has no obligation at all to do anything to warn about or otherwise correct the hazard. The theory is that that the hazard that’s there is something that is so obviously dangerous, that it carries its own warning signs. What makes the open and obvious defense something that is difficult in these kinds of cases, is because it takes away the issue from the jury and gives the judge the ability to dismiss a case by simply ruling that something is in fact open and obvious.
So giving an example of an open and obvious danger, years ago I was representing a gentleman who was working on the United Center while it was up for construction, and the area around the actual building site was basically ankle-deep mud, and he was carrying a bunch of equipment to where his crew was working, and he slipped and fell in the mud, twisted his knee and tore his ACL and needed to have surgery on his knee.
The defense in that case was that the slippery nature of the mud around the United Center was something that was an open and obvious danger, and that was an issue that we had to address throughout the case.
Pam: So where the open and obvious defense is an issue, how do you deal with it?
Barry Doyle: Well, there’s two real ways that you deal with it. The first of these is to contest whether or not this in fact something that’s open and obvious. And that’s something that’s going to be subject to argument, depending on the facts and circumstances of the case. Past that, there are two exceptions to the open and obvious defense.
One of these is called the deliberate and counter exception, and basically, where that applies is when you’re forced, as a condition of your work, to deal with something that’s an open and obvious danger. So the example I gave you earlier of the gentleman who hurt himself while working at the United Center, the deliberate and counter exception applied, because he had to work in that mud as part of his job.
The other exception to the open and obvious rule is what’s called the distraction exception. And basically that applies where somebody is foreseeably distracted by the environment around them, from something that’s an open and obvious danger. Years ago I was representing a woman who was a lawyer for a law firm downtown. After September 11th, her firm decided it would be a good idea to have an evacuation drill where everyone would walk from the floor that they worked on, all the way down the fire escape stairwell, all the way down to the loading dock. And in their particular building, there was a pipe that was hanging out over the middle of the fire evacuation stairwell. She’s following a number of her coworkers down the stairwell and she cracked her head on the pipe and hurt her neck.
In that particular case, we used the distraction exception to the open and obvious rule, because she was looking at things around her. She’s going down in a busy environment, she’s looking at the feet of the people in front of her so she doesn’t trip on them, and not looking at the pipe that’s hanging over the stairwell. So that was a situation where we used the distraction exception as a way around what would otherwise arguably be an open and obvious danger.
So to give you an example of a case where we contested the issue of whether something was open and obvious. I represented a woman who slipped and fell on ice in the garage where she worked, and there was a lot of ice all over the parking garage and there were a whole host of reasons as to why that present there, but the particular location where she fell, we had a fair grounds for saying the ice was thin enough, it wasn’t as thick, and wasn’t as widespread in the particular area where she fell, as it was elsewhere in the garage. The defense wanted to focus in on the fact that the whole garage itself had lots and lots of ice and this was inherently open and obvious, but by focusing in on that particular location, we were able to get a judge to say a jury needs to decide whether or not the ice in that particular location was an open and obvious hazard.
Pam: Thanks Barry. You’ve been watching Fighting For What’s Right, with personal injury attorney, Barry Doyle. Please subscribe to our YouTube channel, Fighting For What’s Right.