Slip and Falls

The tragic accident that occurred at a New York Wal-Mart certainly gave another meaning to “Black Friday.”  According to CNN, lawsuits are being filed for customers injured in the stampede.  I can’t comment on their chances in New York, but, had the accident taken place in North Carolina, they certainly would have a claim worth investigating. 

Claims against stores or public places are called “premises liability” cases or, taking the name of the most common occurrence, “slip and falls.”  Sometimes people incorrectly assume that if they are in a store and get hurt, the store is responsible.  This is not true.  An injured person has to show some fault on the part of the store before she can recover.  The injured customer has to show that there was a dangerous condition that the store or its employees knew or should have known about and the store failed to warn people about it or fix the problem.  In the case against Wal-Mart, the argument could be made that the lack of crowd control devices, extra-security, or even just opening the doors a few minutes earlier than advertised created a dangerous condition.  Wal-Mart has also run into trouble in the past for stacking items too high and unsafe and causing them to fall on customers. 

The store or its employees don’t have to be the one to have created the condition.  Frequently in slip and falls, it is another customer or vendor who accidentally creates the condition.  Whoever creates the condition, if the injured customer can’t show that the store had actual knowledge of the dangerous condition and didn’t warn about it or fix it, she can prove that the store should have known about it.  The store has a reasonable amount of time to discover and fix or warn of the dangerous condition.  This usually requires some kind of proof of the passage of time of the condition.  If a customer slips and gets injured from a brown banana peel, that is some indication of the length of time it was on the floor and the argument can be made that the store should have known of that condition.  If the banana peel is yellow, the customer has much less of a chance of recovery. 

The second part of the fault equation in North Carolina is that even if the store was at fault, if they prove that the customer has some small fault of her own, she cannot recover.  If the customer knows there is a brown banana peel on the floor and steps on it anyway, or if the customer climbs a shelf for some merchandise and poorly stacked items fall, are examples of possible fault of the customer.  This is called contributory negligence.  In the Black Friday case, a North Carolina Wal-Mart may argue that the customer knew the crowds were or could be dangerous, felt people pushing or shoving, but took a risk and stayed in the dangerous mob.  If a jury believed that the injured customers were in some way responsible, they would not recover any money for their damages even if the store had equal or far greater responsibility.  Most states have gone to a form of "comparative negligence" that provides partial recovery for injured people even when they have some fault of their own.  North Carolina however still uses the old rule that if you are 1% at fault, you recover nothing.

–Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Feel free to contact him at (910) 772-1678