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Slip and fall cases: What qualifies as sufficient evidence?

slip_and_fall

You recall an injury sustained by a fall you took in the parking lot of a big-box store and you’re trying to prove that it was the store’s fault. What evidence will be sufficient in court? Well, that question is difficult because, like most negligence cases, there usually is not a single piece of evidence that conclusively shows fault. Recently, the 7th Circuit Court of Appeals revisited the burden of proof a plaintiff must furnish to prevail. But, because the plaintiff’s case was unsuccessful the analysis by the court merely leaves practitioners with a list of possible ways in which evidence is insufficient.

In Piotrowski v. Menard, Inc, the court of appeals held that: (1) customers must show that placement of the injury-causing object was due to the store owner’s negligence, and (2) that the store owner had actual or constructive notice of the dangerous condition that caused his/her injuries. The holding relied on precedent found in Zuppardi that required a plaintiff to show that “the foreign substance was related to the defendant’s business and (2) “offer some further evidence, direct or circumstantial, however slight, such as the location of the substance or the business practices of the defendant, from which it could be inferred that it was more likely that defendant or his servants, rather than a customer, dropped the substance on the premises.” The Zuppardi court goes on to give a lengthy list of all the events that could have set forth sufficient evidence. But, it may be misplaced to concluded that showing one of the hypotheticals would have been dispositive to the Zuppadri’s case.

Both holdings suggest that the court is looking for evidence that specifically provides a way in which the defendant caused the harmful condition, not merely speculation. In both cases the plaintiffs only demonstrated possible ways in which the conditions could have been created. This was insufficient. In short, a plaintiff must show either (1) the defendant negligence caused dangerous condition; or (2) the defendant had actual notice of condition and did nothing; or (3) the defendant had constructive awareness of the condition and did nothing. This is a high bar.

Partial Cause v. Sole Cause: Why your insurance company can’t shift the burden to you

Questionnaire

Imagine going out to play a game of basketball with your crew. In the heat of the game you tear your Achilles tendon. You’re in pain, but you can rest knowing that your insurance will cover the surgery.

Six days later you have a routine and “uneventful” surgery to repair the tendon and you’re discharged on the same day. However, a couple of weeks later, and after a follow-up with your doctor, you collapse at work, go into cardiopulmonary arrest, and die.

The representative, and beneficiary, of your estate files a claim with your insurance company that purports to provide accidental death and dismemberment coverage for the company’s employees, in the amount of $92,000. However, they deny the claim because your late spouse’s coverage is limited to “bodily injuries. . . that result directly from an accident and independently of all other causes.” The insurance company argues that the basketball player’s death was not the exclusive result of the accident, but additional complications at surgery caused the death. Your representative sues the insurance company on a causation theory—but if not for the Achilles tendon accident, that required surgery, your spouse would not have died.

In a recent case, the 7th U.S. Circuit Court of Appeals was faced with this exact scenario. The lower court ruled in favor of the insurance company, but the 7th Circuit panel was not convinced that that was the right outcome. Judge Posner, writing for the court, explained that the evidence suggesting that the basketball player’s death was caused by a blood clot was inconclusive—it did not show that the blood clot was an independent cause, but merely a partial cause of the ball players death. The court focused on the chain of events that led to the ball player’s death. It concluded that the blood clot was “partial because the accident had to have played a role; no accident, no surgery or immobilization, hence no deep vein thrombosis or pulmonary embolism (blood clot).”

The court struck down the insurer’s arguments that the beneficiary had to prove that no other events played a role, and that the company had the “discretion to decide what evidence was sufficient to demonstrate a disability.” The court wrote that such burden of proof and discretion is illusory because it would give the insurance company unchecked carte blanche to decide whether to honor its contract.

Because the insurance company failed to make any plausible showing that the surgery, rather than the accident that necessitated the surgery, caused the basketball players death, the 7th Circuit Court of Appeals held that the judgment should have been in favor of the plaintiff beneficiary.

Heeding the fine print: Belot v. LTF Club Operations Co., Inc

On January 1st, many anxious and determined individuals stepped into health clubs across Illinois to embark on one of the most common New Year’s Resolutions—lose weight and get in-shape. Several clubs will market the opportunity for business by giving away free day or week guest passes to a potential new comer and/or repeat customers. However, before you step-foot into one of these big-box sweat machines to redeem your free guest pass, take a moment to read the fine print; and do not deviate from its instruction(s).

Four months ago, a district court judge ruled that the plaintiff (gym guest) was legally a trespasser when he tripped over some cables and injured himself at Life Time Fitness Club in an Illinois Suburb and, therefore, could not hold the defendant-company liable. Mr. Belot, the plaintiff, went into a local Lifetime Fitness to check out the facility. He waited to be greeted at the front desk, but no one was there. He decided to take a self-guided tour and in doing so tripped over a few cords while trying to test an elliptical machine.

The court emphasized that one’s status as an invitee can changed if he or she fails to satisfy any condition set forth in the invitation. The court conceded that the “[p]laintiff was arguably an invitee when he entered the gym: he received a guest pass in the mail, which was an express invitation, and the purpose of that invitation was ultimately to enroll him as a gym member, which is directly related to Defendants’ business.” However, the court continued its analysis and explained that “invitees may nonetheless lose their status and become trespassers when, after being invited onto the premises, they go to an area beyond the scope of an invitation or otherwise deviate from conditions of that invitation.”

The court held that Mr. Belot went beyond the scope of the guest pass when he ignored a clause in the invitation that required all guests to present a photo ID and take a membership tour. Therefore, he could not hold Life Time Fitness liable for the injuries he sustained while on his exploration of the facility.

The public duty rule in Coleman v. East Joliet Fire Protection Dist.

Coleman v. East Joliet Fire Protection Dist. 2016 IL 117952

“Hurry” was the last word uttered by Coretta Coleman, as she attempted to get help. She dialled 911 at 6:10 p.m. in early June of 2008. Coretta told the 911 operator that she was unable to breathe. She asked for an ambulance and provided her address, telling the operator to hurry. The 911 operator put her on hold and then transferred the call to another operator. The initial 911 operator did not convey the information provided by Coretta to the new operator, despite policy directing operators to do so. The new operator never heard Coretta’s voice and, twice, attempted to call the number back, only to receive a busy tone. The new operator dispatched an ambulance at 6:13 p.m. and labeled it an unknown medical emergency.

At 6:19 p.m. the East Joliet Fire Protection District ambulance arrived Coleman’s residence, but after attempting to enter the house they were ordered to leave by their supervisor. Afterwards, neighbors called 911 to ask for police to open the Coleman’s door for another ambulance. At 6:37 p.m. the initial 911 operator called the second operator and told him the nature of the earlier call. The second operator then asked for the information again, in order to send another ambulance to Coretta. The initial operator did not give the entire address and the ambulance was erroneously dispatched, causing the ambulance to arrive at the correct address 11 minutes later than normal. At 6:51 p.m., 41 minutes after Coretta asked the operator to “hurry,” ambulances arrived to find Mr. Coleman pulling into the driveway. He let the paramedics in, but his wife was unresponsive and was later pronounced dead at the hospital.

Mr. Coleman sued East Joliet Fire Protection District, its ambulance crew, Will County, the two 911 operators, and Orland Central Dispatch. Mr. Coleman alleged that all were negligent and/or willful and wanton in their acts and omissions that ultimately deprived his wife of a fighting chance to live. The circuit court of Will County granted the Defendants summary judgment, which essentially ended Mr. Coleman’s case. The appellate court affirmed the decision and Mr. Coleman appealed to the Illinois Supreme Court, which agreed to hear the case.

Typically, governmental entities and their emergency response personnel are immune from civil liabilities arising from negligence in providing emergency response services. Pursuant to a series of statutes and a concept known as the public duty rule, claims against many public entities (and their personnel) typically fail because the public entities and personnel do not owe specific individuals any legal duty. Moreover, even if a duty is owed, the statutes immunize the public entity for conduct that does not rise to that which is willful and wanton.  

A segmented and heated Supreme Court controversially abolished the public duty rule. The Court departed from stare decisis—the idea that previous court rulings guide new court rulings—and argued that the public duty rule was causing inconsistencies within the court system, that the public duty rule was against public policy, and that the public duty rule was made obsolete by statutes enacted by the legislature. The majority decision, which received less support than the dissent, concluded that these cases are best determined by application of conventional tort principles in conjunction with the statutes that afford immunities, rather than a common law tool that precludes a finding of duty for public entities.

Mr. Coleman has since passed away but this Supreme Court ruling gives his estate the opportunity to make its case in court.

Click here to read the full case note

Speculation and Conjecture in Carson v. All Erection & Crane Rental Corp.

Carson v. All Erection & Crane Rental Corp., 2016 WL 413161

A construction worker was injured when a crane malfunctioned and crushed his leg. He sued the rental company for negligence, claiming that they had a duty to inspect the crane and by failing to do so, caused the injury. The district court granted the rental company’s motion for summary judgment. The Court found that no reasonable jury could return a verdict in plaintiff’s favor. Following the accident, the crane was inspected. After hours of attempted accident reconstruction it was determined that the malfunction was intermittent, one that was difficult to replicate and difficult to detect. The malfunction involved the use of the crane’s cruise control.

In summary judgment the non-moving party is entitled to have all reasonable inferences drawn in their favor (Thornton v. M7 Aerospace LP, 796 F.3d 757, 769 (7th Cir. 2015)). The inferences drawn must be reasonable, thus a court may not draw an inference in the non-movant’s favor when the evidence on record leads to many equally speculative conclusions (Foster v. New York Central System, 402 F.2d 312, 313 (7th Cir. 1968)). Proven facts, not mere guess, conjecture, surmise, possibility or speculation, must be the basis for a finding or decision (Halkias v. Gary National Bank, 234 N.E.2d 652, 655 (Ind. App. 1968)). Finally, in the total absence of evidence or reasonable inferences on one or more of plaintiff’s essential elements, the defendant is entitled to summary judgement (Palace Bar, Inc. v. Fearnot, 381 N.E.2d 858, 861 (Ind. 1978)).

The Court assumed a duty to inspect, but held that no reasonable jury could find the rental company in breach for not conducting inspections at the same level as the accident reconstruction. Nonetheless, the Court assumed a breach and examined proximate cause. The Court found that the critical question was how often the crane’s cruise control was used prior to the accident. Plaintiff did not present any evidence as to the frequency that the cruise control was used. Without any record of the frequency, the inferences drawn would rely on mere speculation or conjecture and the plaintiff is not entitled to those.

Click here to read the full case note

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