Login | June 18, 2019

Attorneys discuss the keys to establishing a successful negligence claim

SHERRY KARABIN
Legal News Reporter

Published: June 13, 2019

A customer slips and falls on a spill in a grocery store, sustaining neck and back injuries. The individual later meets with an attorney to file a negligence claim against the business owner, but can this person prevail?

As Harrington, Hoppe & Mitchell attorney Patrick Manning explains, the answer depends upon a number of variables.

“In order to recover for his or her injuries, a person must first prove negligence on behalf of the allegedly responsible party,” said Manning, who focuses on civil litigation, personal injury and employment and public sector law matters. “From a legal standpoint, negligence is a failure to use reasonable care under the circumstances.”

Manning said to establish a claim the plaintiff must be able to prove four elements: A duty, a breach of that duty, causation and damages.

“First you must be able to demonstrate that the person or establishment against whom your claim is made owed you a duty due to ownership or operation of the instrument responsible for the injury, the relationship between the people involved or by law.

“Once a duty is established, you must be able to prove that the responsible party breached that duty, either through an action or inaction.”

In the case of the slip and fall incident, Manning said the business owner is generally required to ensure that the premises are “reasonably safe.” However, that does not mean the owner must protect customers against every possible scenario.

“If the spill is open and obvious to the average person, just happened and was just reported, the injured party likely would not be able to establish a breach of duty,” he said. “However, if the spill is not open and obvious and was reported hours ago and nothing was done to clean it up, it’s more likely that the plaintiff would be able to establish a breach of duty.

“Another example might be if a plaintiff customer is walking behind another shopper in the store and that first shopper drops a bottle of Coke and it spills, immediately causing the plaintiff to slip and fall, the store owner would likely not be responsible.”

Kisling, Nestico & Redick senior partner Joshua Angelotta said it’s not necessary to prove that the breach was intentional or meant to cause harm to the other party.

“All the plaintiff needs to do is to prove that the defendant had a duty to exercise ordinary and reasonable care in the context of the incident and failed to do so,” said Angelotta.

“Some instances of actionable negligence, such as car accidents involving drinking and driving or texting and driving, are so egregious that the tortfeasor’s behavior may be deemed reckless and this can affect case value for the victim.”

Simply proving a breach of duty is not enough. Manning said the plaintiff must be able to demonstrate that the actions of the responsible party not only caused the resulting harm but that the harm was “reasonably foreseeable” by the defendant.

“If standing water has been left unattended for hours in a grocery store, the plaintiff can make an argument that a slip and fall accident was ‘reasonably foreseeable’ by the owner,” said Manning.

It is also important that the plaintiff reports the incident to the owner right away and seeks appropriate medical attention to document any related symptoms and injuries.

“If someone waits six months to see a doctor and then goes for treatment, it will be difficult to prove that the injuries are directly related to the fall,” said Manning.

“Proving an individual has been harmed as a result of a tortfeasor’s negligence is more straightforward when there is an objective injury such as a broken bone or a catastrophic injury like wrongful death,” said Angelotta.

“Injuries such as a mild concussion or whiplash are diagnosed primarily through subjective complaints. Since the injured party’s credibility is always an issue in proving the claim, these cases can be more difficult.”

Angelotta said even in cases in which negligence and the resulting damages are clear, it may not be possible to recover monies spent on medical and other bills.

“If I get a call from the family of a person killed in an auto accident and the other motorist is uninsured or has minimal coverage, which in Ohio is $25,000, I have a responsibility to explain that their recovery amount can be minimal,” said Angelotta. “Usually tortfeasors with such minimal coverage have little by way of collectible assets or can avoid personal exposure through bankruptcy.

“Unfortunately this is something that I encounter a lot,” he said.

In fact, Angelotta said he recommends that his clients carry a liability policy with limits well in excess of the state minimum. In addition, he advises them to purchase a similar amount of uninsured or underinsured motorist coverage.

“This will provide relief to an individual hurt by an uninsured driver or a driver who has minimal insurance,” said Angelotta. “Uninsured or underinsured coverage can help the individual to recover for damages such as medical expenses, income loss and non-economic damages like pain and suffering.”


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