So, there’s this perception people have about slipping and falling and getting paid by suing the landowner.  That perception is way wrong.  People don’t get rich on slip-and-fall claims and lawyers definitely don’t get rich on them (at least not very frequently).  Going after a property owner for premises liability based on a slip or trip on their property is tough sledding, even on a good day.  Here’s why: THE OPEN AND OBVIOUS DOCTRINE.

This doctrine holds that if some hazard causes an injury, but the hazard was “open and obvious” to the casual observer, the premises owner will not be held liable for damages.  In other words, if you can see it, you should have avoided it, so you’re out of luck.  In some cases, it doesn’t even matter if you couldn’t actually see the hazard, so long as you had some reason to be on notice of its likely existence.  For example, the court has held that black ice is open and obvious in the winter, because everybody knows parking lots get icy in the winter.

There are only a couple of ways to get around this doctrine.  If the hazard was “unreasonably hazardous,” then it is possible to still hold the premises owner liable.  However, the courts have made this an extremely high bar. 

The other way to get around the doctrine is if the hazard was “essentially unavoidable.”  This, too, has been a tough nut to crack.  For example, if a delivery driver has to climb up some icy steps to deliver a package, you would think this is unavoidable, right?  Wrong.  The courts have held that he/she has the option to simply refuse to do his/her job, and so the hazard could have been avoided and the premises owner can’t be sued.  Of course, anyone with common sense knows the worker is risking his/her job, so measuring whether it would be more reasonable to refuse the delivery versus climbing the icy steps should take into account the circumstances of the worker, the level of hazard presented, the likelihood of losing one’s job, etc.  Fortunately, our Supreme Court seems to be getting ready to look at that very issue.  The court has decided to hear oral arguments on a case called Livings v Sage’s Investment Group.  In that case, a worker slipped in her work parking lot and was injured.  The entire parking lot was covered in ice, so there was no way for her to get into work without going through it.  The court is going to hear arguments on whether employment should be considered in determining whether a hazard (like ice) is effectively unavoidable.  Hopefully, the court will issue a decision that is favorable to the injured worker.  Such a ruling could have far-reaching impacts for workers all over the state.

As I say, slip-and-fall cases are tough, but they’re not impossible. It takes a practiced hand to maneuver these tricky, legal waters with any sort of success. If you’ve been injured, call the experts at Bolhouse, Hofstee & McLean, P.C. for a free consultation.

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