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Residential Slips and Falls, This 35-page chapter from Charles Turnbow’s Slip and Fall Practice provides case evaluation suggestions, case studies, deposition outlines, cross-examination questions, and more for:
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Residential Slips and Falls, with Deposition Outlines Single family homes, multi-family dwellings, special
care residences, hazards in residential buildings, hazards from poor
maintenance, changes in occupancy, checklists, deposition outlines by Charles E. Turnbow Excerpted from
Slip and Fall Practice
§1910 Single Family Homes §1911 Limited Liability §1912 Owners’ Lower Duty of Care §1913 Foreseeability of Use Case 1: Remote Stairway Case 2: Main Entry §1920 Multi-Family Dwellings §1921 Apartments Case 1: Improper Re-Sealing of a Stairway §1922 Condominiums Case 1: Painted Walkways Case 2: Resurfaced Walkways §1923 Hotels and Motels Picture: Water Stains on Concrete Stairs §1924 Vacation Rentals Case 1: Fatal Fall in Rental Unit §1930 Special Care Residences §1940 Hazards in Residential
Buildings §1941 Structural Defects §1942 Stairways §1942.1 Classification of Stairway Fall Accident Cases §1942.2 Background and Statistics §1942.3 Common Elements in Stairway Accident Cases §1942.4 Special Aspects of Premises Liability Law Case 1: Failure to Inspect §1942.5 Burden of Proof Case 2: Plaintiff Slips on Stair Tread §1942.6 Questions and Answers Case 3: Handrails Too Close to Wall §1943 Porches and Balconies Case 1: Slippery Decking §1944 Single Risers §1945 Floor Material and Flooring §1950 Hazards From Poor
Maintenance §1951 Water on Walkway §1952 Solid Debris Case 1: Sand on Hanicapped Access Ramp Case 2: Sand and Gravel on Driveway §1953 Weathering and Maintenance §1960 Changes in Occupancy §1961 Transient Business Use Case 1: Home as §1962 Business Use of Home Case 1: Home Businesses Picture: Unmarked Hazard §1970 Checklists §1971 Stairway Fall Accidents §1980 Deposition Outlines §1981 Stairway Experts §1982 Lighting Experts §1910 Single Family Homes The average house is fraught with hazards. The largest
number of injury-producing slip and fall accidents occur in or around the
home. Falls in bathtubs, kitchens, garages, stairways and walkways are
relatively common. §1911 Limited Liability If an injury occurs to a homeowner or a member of his or her
immediate family and the homeowner is also the occupier of the premises,
liability is very limited. Many states have a family exclusion act that
prohibits members of an immediate family from suing each other. Aside from
the stigma of suing a family member, there are a number of affirmative
defenses that can be raised. Since the victim is usually a resident, he or
she may have actual or constructive knowledge of the defect that caused the
fall. Victims who are also homeowners have a duty to inspect and repair the
premises under most circumstances. There may be liability by the builder for
latent defects which were the result of poor design or construction
practices and which would not be readily apparent on inspection by the
injured property owner. However, most jurisdictions have a statute of
limitations regarding such liability. Check carefully before pleading. §1912 Owners’ Lower Duty of Care When dealing with an accident involving a non-family member,
carefully consider the different levels of duty imposed by statute, custom,
practice or community standards. Jurors are likely to rely on their own life
experiences to determine what is commonly done in the maintenance of a
single family home. For example, a 5-inch-deep hole in the middle of the
yard may create a substantial tripping hazard. It is not unusual, however,
to find such a hole where there are young children or dogs. Unless the yard
is to be used for a quasi-public event, there is little need, other than for
aesthetics, for the homeowner to fill the hole. The only individuals likely
to be exposed to the condition are family members aware of its existence.
The same defect in the lawn of an apartment house or public park, however,
would require diligent effort to eliminate. The homeowner has a duty to warn
of known hazards to the social guest and failure to do so is negligence.
Where the occupier is a tenant, the owner has a duty to both inspect and
warn invitees of the hazard. Social guests of the tenant usually step into
the shoes of the tenant and have the same rights of protections against
hazards. §1913 Foreseeability of Use The foreseeability of the public’s use of the area
determines the required level of maintenance. For example, in the following
two cases, each stairway presented a substantial hazard. The juries found a
different duty based on the area’s anticipated use. Case 1: Remote Stairway The plaintiff was a cable TV installer entering the
defendant’s property to connect drop leads for new cable service. In order
to get to the back of the house to make the connection, the plaintiff had to
descend wood steps, partially obscured by 10 to 12 inches of snow. The
plaintiff slipped and fell down the steps. Bringing suit in superior court, the plaintiff alleged
that the stairway did not meet the UBC minimum standards of safety as
adopted by the county. The plaintiff contended that the variation in riser
height and lack of handrails created a substantial hazard. Further, since
the defects were in violation of the code and they directly caused the
incident and subsequent injuries, the plaintiff alleged that he was entitled
to a negligence per se instruction. The plaintiff’s engineer stated that the stairway was
subject to the building codes and did not meet the minimum standards. The
defendant’s expert argued that the stairway was exempt from the code
provisions because it was not attached to the building; instead it was a
series of steps following the natural slope of the lot. The defendant’s
expert contended that:
The jury found that the property owner had no duty to
maintain the stairway within the specifications set forth in the building
code because the steps were not intended for public or trade use.
Case 2: Main Entry The plaintiff was apartment-sitting for a friend at a
beach-front apartment. Beach traffic and on-shore winds caused sand to
accumulate on the walkways and courtyards. To get from the apartment to the
promenade, the plaintiff had to descend four steps leading from the common
porch of the apartment to the courtyard. As the plaintiff headed out for an
evening walk, she slipped and fell on the sand-coated steps. During discovery, the apartment manager testified that
she was aware of the sand accumulation, that the problem was a substantial
one, and that she took extraordinary measures to assure that the steps were
clean and safe. Every morning she swept and hosed down the steps and porch.
If she had the opportunity, she would check the steps from time to time
during the day. On very windy days, she also swept the steps in the early
evening hours. She had no recollection of the specific cleaning procedures
she used on the day of the accident, but was sure they were no different
than usual. The plaintiff and witnesses indicated that sand, paper,
cigarette butts and leaves were in the area. One witness stated that he saw
at least some of the same material on the steps two days before the
accident. The plaintiff argued that the defendant not only
recognized the hazard, but was aware that special precautions were necessary
to make the area safe. Because the steps led to the main entry, it was
foreseeable that they would be used by the public and the residents. The
plaintiff also argued that the defendant failed to exercise the ordinary
care necessary to make the stairway safe under those circumstances. The jury
agreed with the plaintiff. In the first case, the stairway was not attached to the
house and led only to an unused back portion of the lot. While the uneven
steps created a tripping hazard, they could be negotiated with due care. The
snow on the steps increased the risk of misstepping and added an additional
slipping hazard. Because the steps were not intended for public use,
however, the jury found that the owner had no duty to remove the snow or to
replace the stairway. The second case presented a substantially different
scenario. The steps led to the common main entry of a multiple family
dwelling. From the street or the beach, there was no other readily
accessible entry. In this case, the jury determined that it was foreseeable
that family members, vendors, mail carriers and visitors would use the front
stairway, and that the owner should have kept the stairway free from sand.
In this case, the jury also found that the stairway was not maintained
safely according to the building code requirements. The court instructed the
jury on negligence per se based on a violation of the code. §1920 Multi-Family Dwellings §1921 Apartments In buildings with more than one dwelling unit, the landlord
or owner usually controls the common areas. Defects or hazards in these
areas may arise from the owner or manager’s negligence. When units are
improperly constructed or designed, the contractor, architect or designer
may also be liable. Occasionally, a dangerous condition is the result of
aging, modification or repair of an otherwise safe surface. The original
contractor may not necessarily be liable for such a condition if the hazard
is primarily due to the negligence of others. Case 1: Improper Re-Sealing of a Stairway A contractor rebuilt two stairways in an apartment
complex using a light concrete material commercially known as Magnesite.
This common construction material is relatively porous and must be sealed on
a regular basis. The sealer is a paint like material that tends to be very
slippery when wet. The manufacturer of the sealer warns the user that sand
must be added to the paint film “in areas where slipperiness is a concern.” Approximately two years after the stairs were built, the
plaintiff attempted to descend the stairway after a rain when she slipped
and fell on the wet surface. The stairs were examined by an engineer who
found that the surface of the steps were completely smooth with no admixture
of sand applied to increase the amount of available traction. The tenant sued the apartment owner, the contractor who
built the stairway and the magnesite refinisher. The case was tried before a
jury. After the plaintiff rested, the contractor moved for a judgment of
nonsuit alleging that the plaintiff failed to show that the contractor owed
her a duty of care, and that if some duty was owed, the subsequent
negligence of the magnesite finisher who resealed the stairway was a
superceding cause which relieved the contractor of liability. The trial
court granted the motion and the matter was appealed. The evidence presented to the jury clearly proved that
there was a general industry awareness of the slipping hazard created by the
seal coat becoming wet. The manufacturer of the sealing material testified
that warnings had been placed on the containers for at least 10 years prior
to the application by the magnesite refinisher in this case. The refinisher
defendant testified that he was aware that the resealed magnesite could only
be made safe when wet was by the use of a sand application on the fresh
sealer. This defendant testified that he did not mention the need of
increasing the available traction, because he always waited for the owners
to bring up the subject first. Addressing the first issue of appeal, the Court held
that “liability for negligent conduct may be imposed only where there is a
duty of care owed by the defendant to the plaintiff or to the class of which
the plaintiff is a member.” As a contractor, the builder had a general duty
imposed by law to use reasonable care to prevent damage to persons whom he
may reasonably expect to be affected by his work. In this case, there was no
evidence that the original construction was defective or that the stairway
was in a dangerous condition when he completed his work. The Court held that
“Nor is he responsible for the negligence of another who is not in a
relationship (such as an agent or subcontractor) giving rise to liability.”
The builder and the refinisher were successive contractors and the builder
had no authority or control over the activities or the work done by the
refinisher two years after the contractor finished his work. The plaintiff argued that the builder had a duty to warn
the apartment owner that sand must be added to the film whenever the surface
was refinished. Since the refinisher knew from his own experience and from
the warnings on the container, the Court held that there was no duty to warn
owed by the builder. “The liability of an independent contractor to one not
a party to his contract is a matter of policy and involves the balancing of
various factors, among which are the extent to which the transaction was
intended to affect the plaintiff, the foreseeability of harm to him, the
degree of certainty that he suffered injury, the closeness of the connection
between the defendant’s conduct and the injury suffered, and the policy of
preventing future harm.” Here the failure of the finisher to add sand to the
surface mixture was a failure to use reasonable care to protect others from
the result of his activity. The Court ruled that this negligent act
superceded any possible failure to act by the builder and that the builder
met its duty of care in that the stairway was free of defects and hazards
when the owner accepted the construction. The granting of the motion for
nonsuit was affirmed. See De Lima v. Magnesite Waterproofing & Refinishing,
191 §1922 Condominiums Condominiums are individually owned single-dwelling units
that have common areas controlled by homeowners associations. These
associations are usually legal entities and may be sued for negligent acts.
The condominium association will hire a manager or management firm to
conduct its daily business. Sometimes a board of directors serves this
purpose. The homeowners association often does not have the necessary
professional experience or knowledge to direct the maintenance work. Case 1: Painted Walkways While walking along a sidewalk in her condominium
complex, the plaintiff slipped and fell on a rain-slicked surface, seriously
injuring her right leg. A board elected by the property owners directed the
condominium’s business. The association president oversaw the actual
day-to-day operations. He decided to paint the walkway surfaces with an
attractive paint, and directed maintenance personnel to do the job. They
made no attempt to make the area slip-resistant, nor did they consciously
consider pedestrians’ safety. An expert measured the coefficient of friction of the
wet surface to a rubber reference material and found the amount of available
traction to be 0.41 when dry and 0.23 when wet. A similar walkway surface
was painted and silica sand applied to the uncured surface, resulting in a
coefficient of friction in excess of 0.85 when wet. The paint manufacturer placed warning labels on the
container that if the paint was to be used on surfaces that might become
exposed to water, silica sand or some other abrasive material should be
added to the paint before drying. The association president was unaware of
the practice of using admixtures on exterior painted surfaces, and was
unaware of the need for routine inspections to determine if the premises
were reasonably safe. After extensive discovery, the parties settled to the plaintiff’s benefit.
Case 2: Resurfaced Walkways The plaintiff was a permanent resident and condominium
owner in a development designed, constructed and sold by one of the
defendants. Each phase of the development was handled by a different legal
entity: the development company purchased and owned the land; a corporation
acting as the general partner constructed the complex; and a real estate
broker sold the individual units. The principal in each of these operations
was the defendant. The board of directors of the condominium owners
association employed a management company to do necessary work. After a few years, the patio courtyards of the complex
began to show substantial wear and discoloration. The management company
hired an independent contractor to resurface the courtyards. Immediately
after a paint-type compound was applied, the residents complained that the
surface was too slippery. The board considered the large number of
complaints, but no action was taken. The plaintiff, attempting to walk
across the courtyard on a rainy day, slipped and fell, fracturing his left
hip. Coefficient of friction measurements showed that the surface was
unusually slippery when wet. All of the other defendants—the painting contractor,
paint supplier and condominium association—settled with the plaintiff before
trial. The developer was the single remaining defendant. The defendant developer attempted to persuade the jury
that he had no individual liability because each of the negligent acts was
done by a different entity. The jury decided, among other issues, that he
was instrumental in each decision and that all of the actions eventually led
back to the development company. §1923 Hotels and Motels Hotels and motels provide single dwelling units to transient
traffic. Some hotels offer permanent residence facilities, although the
average stay is usually no longer than a couple of days. Generally, the
innkeeper is under the same duty as the merchant or business owner in
maintaining the property. Because some activities associated with normal
living expose hotel guests to the same risks that occur in a home, the
innkeeper must take some special precautions. In those jurisdictions where
there is a legal difference in the duty owed based on the class, the patron
or his social guests are invitees and the landlord or innkeeper has a duty
to inspect for conditions which could cause a potential hazard to the guests
and then take appropriate action to either abate the hazard or to reduce the
risk of injury by adequate warnings or barricades. Where there is no
difference in duty owed based on class, then the duty to inspect, detect and
correct exists as though all classes were invitees. §1924 Vacation Rentals The duty to protect invitees and licensees from defects on
the property is imputed to the owner of the property and to the one who
controls the property. Vacation rental property may be cabins, condominiums
or single family dwellings. In most cases, these properties are managed and
rented out by commercial property managers who sign the leasing or rental
agreements on behalf of the owner, inspect the property, screen applicants
and perform other functions, including minor maintenance and repair. When
accidents occur, both the property manager and the property owner are likely
defendants. Where the accident occurs in a common area of a condominium
complex, the homeowner’s association may be a viable defendant as well. Case 1: Fatal Fall in Rental Unit The plaintiff and his wife had rented the same
condominium in a major resort area for a week each June for several years.
They usually invited another couple to join them for an early summer
vacation. The unit was a tri-level, with a stairway connecting the living
levels. At the bottom of the stairway, a square landing terminated at a
90-degree angle to the run of the stairs with a single 7-inch riser. For
privacy and to control drafts, the property owner hung a curtain or drape
over the edge of the landing covering the single riser. After the couple had
been staying in the unit for several days, the plaintiff’s wife was
descending the stairway in the early evening. She attempted to negotiate the
single riser by pulling aside the drape and stepping forward. She could not
adequately see and delineate the step because of the level of light in the
area and the occlusion created by the drape caused her to misstep. She fell
forward striking her head on the doorjamb of the entry to a bedroom located
near the foot the stairs. She suffered a massive subdural hematoma, lost
consciousness and died two days later. The following direct testimony
addresses many of the issues found in vacation rental cases and stairway
fall accidents.
Single Risers Create a Tripping Hazard Q. Earlier in this trial, the plaintiff testified
that his wife, the decedent, fell while attempting to negotiate or step off
the single riser between the landing and the lower hall. Do you have an
opinion whether a single riser presents a tripping hazard to the pedestrian? A. Yes. A single 7-inch riser along a walking
surface creates a substantial tripping hazard when encountered unknowingly
or when the edges of the riser cannot be clearly seen and delineated. Q. Based on your knowledge and experience, is this
hazard recognized by the industry or standards setting authority? A. Single riser hazards are well-known in the
industry and are not recommended for walking surfaces. Changes of elevation
of less than 12 inches within a building are prohibited by most building
codes, unless the change of elevation is accomplished by ramps conforming to
the specifications of the code. Q. Do the building code requirements apply to
dwellings such as the condominium unit in this case? A. The code prohibition applies to all buildings
except individual dwelling units. I referred to the building code to show
the recognition of the hazard, not to indicate a code violation. Q. Are there any other authorities that recognize
the hazard presented by a single riser? A. The American Society for Testing and Materials
(ASTM) and the American National Standards Institute have adopted a Standard
Practice for Safe Walking Surfaces F-1637, which recommends that single
risers should be avoided in design and construction whenever possible. When
single risers cannot be avoided, then they must be marked and delineated in
such a manner that the pedestrian can see and delineate them readily.
The Addition of the Curtain or Drape Increased the
Hazard Q. The photographs in evidence clearly show a
drape or curtain drawn across the edge of the bottom stairway landing. Does
this curtain increase the tripping hazard presented by the riser? A. The curtain at the nosing at the edge of the
lower landing obscures the nosing of the riser. When closed, the curtain
also covers the orientation edge of the landing, thereby reducing the
pedestrian’s ability to see and delineate the edge of the step. This
substantially increases the tripping hazard presented to the pedestrian. Q. How does the curtain hinder the pedestrian in
negotiating the step? A. The nosing of the step extends past the
vertical edge of the landing wall. The curtain covers this vertical
orientation edge. Since the edge of the wall and the edge of the landing are
hidden by the curtain, the pedestrian is impaired in her attempt to
determine where the edge of the landing is located. A misstep is likely to
occur under these conditions.
Continuous Carpeting Increases the Problem Q. During your inspection of the accident site,
did you determine the floor covering material on the stairway, landing and
hall? A. Yes. A closed-loop pile carpeting was used
throughout the area, including on the landing in the hall. Q. Does the carpeting increase the hazard
presented to the tenant in this case? A. The use of the same carpeting material on the
landing and in the hall reduces the pedestrian’s ability to detect the edge
of the landing. In this case, the extension of the landing past the edge of
the wall and the lack of distinction between the landing and the hall
increase the chance of a misstep. The continuous carpeting and the lack of a
sharply defined orientation edge indicate a lack of conspicuity.
Features of the Landing and Step Must Be Conspicuous Q. What is necessary for the landing and step to
be conspicuous? A. In order for the nosing or edge to be
conspicuous to the pedestrian, there has to be sufficient light intensity
and contrast between the walking surfaces. In this case, the landing and the
hall carpeting were the same color and texture. There was no delineation
between the two surfaces. The single riser would be hard to see under these
conditions. Q. A few minutes ago, you said that the curtain
obscured the orientation edge of the landing wall. Would you explain what
you meant by that statement? A. As one walks down the stairway, there is a
landing at the bottom of the steps. A 39-inch-wide wall is directly in front
of the pedestrian, requiring a right turn toward the hallway. The landing is
41 1/2 inches wide. The nosing or edge of the landing extends about 2 1/2
inches past the corner of this wall. The corner acts as a vertical
orientation edge which assists the pedestrian in determining both direction
and stability orientation, as well as defining the boundaries of the
landing. The curtain, when closed, covers this corner and essentially hides
the edge of the step. Under these conditions, there are no visual cues to
assist the pedestrian in foot placement or balance. Q. What are visual cues and what do they do? A. Visual cues are objects, markings or light
patterns that assist the individual in recognizing changes of circumstances
and evaluating the conditions. Without visual cues to assist the pedestrian
in recognizing the existence of the step and its edge, she may “misread” the
step, causing the foot to be placed too far forward. Q. What happens when the foot is placed too far
forward on the edge of the step? A. As the body weight is shifted over the foot
during the loading response phase of the stride, the weight is centered over
the ball of the foot. If the foot is too far forward on the edge of the
step, the foot has a tendency to slide over the edge of the step. Often, the
leading edge of the heel catches on the edge or nosing, causing the body to
vault forward, resulting in a subsequent fall. Q. Is a 7-inch step inherently dangerous? (continued in pamphlet)
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