Should an Attorney Accept a Slip-and-Fall Case?

Many personal injury attorneys view slip-and-fall cases as not worth their time. They base this on a cursory look at the facts as related by a prospective client, without going to the scene. The attorney may also feel that based on the injuries described by the prospective client or lack of medical treatment, the financial recovery may not warrant the expense or time required to make a claim.

Had those attorneys investigated further, they might have found favorable facts to support a meritorious claim. Perhaps there’s surveillance footage or emails showing that employees of a business were aware of or created a hazard and did nothing about it for hours, days, or months. Perhaps a prospective uninsured client did not receive needed medical attention because most doctors would not take on the risk of their bills not getting paid. Perhaps the client did not know what caused him/her to fall while in your office, but a visit to the scene with the client might disclose what happened.

Meritorious slip-and-fall cases rarely arrive on a silver platter. The attorneys who consistently resolve slip-and-fall cases favorably for their clients understand that unlocking value when clients were significantly injured requires a thorough investigation and disciplined case development.

Here are six suggestions for personal injury attorneys considering undertaking slip-and-fall cases.

Begin your investigation with medical records and a property search

Two critical pieces of information attorneys should have before deciding whether to accept a slip-and-fall case include the prospective client’s medical records and who owns and manages the property where the incident occurred.

The medical records will, of course, contain information about the injuries the client suffered and their course of treatment. Equally important, they will provide a record of what the prospective client told physicians and other medical staff immediately after the incident. These contemporaneous statements carry significant weight and give an attorney a baseline for the prospective client’s version of events.

Discovering who owns and manages the property where the incident occurred is obvious for several reasons. First, the correct entities must be named as defendants. Second, the owner and/or manager of the property must eventually disclose the amount of available liability insurance to cover the settlement or verdict. Third, the sooner an owner is identified, the sooner an attorney can investigate whether the owner and/or manager had prior similar falls on their property, or possibly a video of the incident. This may satisfy the notice requirement and help the attorney decide whether to continue with the case. Thankfully, there are real estate databases that search property records across New Jersey, allowing attorneys to identify the individual or corporate entity that owns the property.

Attorneys must also ascertain whether property managers maintain the property for the owner and could be named as defendants. In slip-and-fall cases, property managers are often more culpable than the property owners and often carry their own insurance, increasing the amount of available insurance coverage.

Visit the scene of the injury

The importance of visiting the location of an alleged slip-and-fall cannot be overstated. No matter how much time attorneys spend on Google Earth or how many pictures of the area they might review, only when they stand where a prospective client stood before the fall can an attorney properly evaluate the liability. For instance, if a client slips on ice on a sidewalk, a visit to the scene might reveal that the water came from a defective leader descending from the building, eliminating a notice requirement. Perhaps the fall was caused by snow that melted and then refroze. (Following a snowfall, when property is cleared of the snow, the shoveled or plowed snow should not be placed in an elevated area leading to a walkway.) The attorney must also bring a ruler to measure any raised areas that may have caused the fall.

While on the scene, the attorney should identify, assess, and photograph the purported dangerous condition to determine whether the owner or manager knew or should have known of the dangerous condition. This will support the notice requirement and also allow the attorney to start accumulating evidence to support the claim.

The attorney must also evaluate whether the dangerous condition is so apparent that the client should have seen it and avoided it. A path-of-travel analysis may help. The attorney should look for any obstructions or reasons that may have hindered the client’s view of the hazard. If the client was walking down a slight incline, they might not have been able to see a raised section of the walkway. Simulate the client’s path of travel yourself to see if you can determine why the client fell. The entity or person causing any obstruction is another possible named defendant. Aside from adding more available insurance money into the case, let the jury see the defendants fight it out over fault.

Prove that the defendants had notice

In most slip-and-fall cases, the plaintiff must prove the property owner had notice of the dangerous condition or created it. This is where many attorneys give up, mistakenly assuming that if notice is not immediately apparent, it does not exist.

In ways not apparent at intake, notice can be established with persistence and a willingness to look beyond the initial facts. Do maintenance records show that management or the owner was aware of the dangerous condition? Are there e-mails documenting repeated complaints about a hazard? Does video footage show managers and front-line staff regularly walking past a hazard without addressing it?

Maintenance records may also show that the owner or manager created the dangerous condition, obviating the need to prove notice.

Maintain a network of local doctors willing to treat slip-and-fall clients

One critical but underappreciated aspect of successfully litigating slip-and-fall cases is having a strong network of local physicians. Slip-and-fall clients need medical treatment, but in many cases, there’s limited or no insurance coverage. That means doctors may be hesitant to treat these clients—unless they’re willing to sign a Letter of Protection, agreeing that a client will pay their medical bills from their settlement proceeds. Many doctors are also hesitant to treat accident cases because they do not want to testify in court.

Since most doctors will not treat a client under a Letter of Protection or otherwise, the lawyer should have available a network of doctors who will treat uninsured or underinsured clients desperately needing medical treatment. Attorneys who routinely resolve slip-and-fall cases favorably will likely have an easier time building a network of physicians. After all, if an attorney has worked with a physician on 30 cases and they’ve been paid on 27 of them, the two have built trust and credibility, which helps ensure that the attorney’s clients will receive the necessary treatment for their injuries.

Obviously, the network of doctors must be mostly local. A client might drive an hour to see a specialist once or occasionally. But if they need physical therapy three times a week, they are highly unlikely to drive that far, that often. Law firms should have caseworkers staying in constant contact with their clients to  make sure they are able to attend doctors’ appointments and address any other non-legal concerns the client might have about their case. That level of client service keeps their treatment on track and strengthens cases, but also helps build trust with medical providers who see that clients keep their scheduled appointments and are focused on healing.

Putting the legal case aside, this is a way attorneys can help their clients get much-needed medical care they could not otherwise afford.

Know which experts to use and when

Slip-and-fall cases often require expert testimony; knowing which expert to use matters. For snow and ice cases, attorneys need a weather expert. For a trip-and-fall on a sidewalk, they will need a civil engineer. For an incident in a supermarket, they will need someone familiar with the supermarket’s standard operating procedures.

Personal injury attorneys who do not have these experts on speed dial may turn away meritorious slip-and-fall cases. Although not determinative, a five-minute phone call with an expert helps an attorney decide whether to accept a case and undergo the expense of processing it.

Bring in local counsel

If a South Jersey attorney’s client had a slip-and-fall in Essex County, or, for that matter, an attorney in one county has a prospective client who slipped and fell in any distant county, that attorney may be at a disadvantage from the start. They are not familiar with local property owners, local would-be opposing counsel, or the local courts. They cannot easily visit the scene of the injury. Taken together, these factors often dissuade an attorney from accepting a client’s case if the client does not live in the county where the attorney practices. However, the attorney should not hesitate to contact and partner with a local personal injury attorney who has experience litigating slip-and-fall cases in the county where the injury occurred.

Help clients secure justice by prosecuting meritorious slip-and-fall cases

Many attorneys who do not regularly handle slip-and-fall cases might not realize a prospective client has a meritorious case. Partnering with local counsel experienced in handling slip-and-fall cases helps their clients get the justice they deserve and the money required for future medical treatment.

Richard Goldstein is the founder and managing partner of Goldstein & Goldstein, LLP, in East Orange. Michael J. Goldstein is a partner at the firm. They can be reached, respectively, at richard@goldsteinlaw.com and michael@goldsteinlaw.com.