Slip & falls: Avoidance & defense

NATIONAL REPORT—With slip-and-fall accidents being commonplace in the hospitality space, properties are bound to run into unexpected situations every now and then. Knowing how to prevent these incidents will lessen the likelihood of them occurring, and being prepared for slip and falls will help properties through the legal process.

“Slip and falls are the number one guest injury and the number one employee injury at hotels,” explained Todd Seiders, director of risk management at Petra Risk Solutions.

Preventing slip and falls can be challenging for properties of all sizes, primarily due to the frequency of guests moving about at all hours of the day and night—and, unfortunately, property employees aren’t always there to caution guests of potential hazards (think bathtubs, showers, anywhere guests are not in communal areas).

“Hotels, motels and resorts are usually very diverse properties, consisting of outside grounds, including a parking lot as well as stairs, elevators, lobbies and rooms,” said Marc H. Perry, co-chair of the Hospitality and Retail Practice Group at Post & Schell P.C. “Any one of these areas can attract slipping or falling hazards and, therefore, those individuals and companies that are managing hotels, motels and resorts must be cognizant of the potential liability and exposure in every area of the hotel that could cause a slip and fall.”

The majority of slip and falls occur in lobbies, bathtubs, showers, sidewalks and parking lots. The reason why these locations are the main areas of concern for properties is “because if you add any moisture to any of these locations, you have the perfect combination for a slip and fall,” Seiders explained.  

Hotel design seems to be the underlying culprit for many slip-and-fall incidents on properties. While certain flooring may be attractive from a design perspective, it may not always be the right material when it comes to preventing injuries on the property. “In bathrooms especially, hotels have to be more vigilant about making sure the bathtub and the bathroom floor have material to prevent slipping hazards,” noted Charles W. Spitz, co-chair of the Hospitality and Retail Practice Group at Post & Schell. “Similarly, lobbies are usually tile or marble, which can be very hazardous, especially if it’s wet or the surface has been recently mopped. Therefore, it’s important to make sure those areas are noted as a potential concern and to have slip-resistant material, especially in wet areas.” Swimming pools and whirlpool tubs are also of major concern to most properties.

“Slippery flooring is easy to identify,” Seiders responded when asked about common mistakes. “The number of guest and employee slip and falls will identify the extra locations of the problem areas. Flooring choices can be tested prior to being picked and installed. Interior designers don’t pick design on safety, they pick what looks the best.”

Another plausible contributor to slip-and-fall injuries—technology. A guest looking down at a cellphone or glancing over at a flat-screen television while walking throughout a property is distracted from foot hazards, uneven surfaces or even substance spills; however, technology, believe it or not, plays an additional role in slip-and-fall lawsuits.

“Surveillance technology can be a valuable tool in helping to determine if the plaintiff actually fell; if there was a tripping or slipping hazard; how long that tripping or slipping hazard had been in that area; and whether the person appeared to be injured after it occurred,” Perry explained. “Nevertheless, surveillance can also harm hotels if the surveillance video was lost—that can lead to spoliation of evidence and sanction challenges from the plaintiff’s bar. If the surveillance isn’t clear and if the surveillance shows negligent conduct or activity on the hotel or resort, it can definitely be damaging during trial. More often than not, it ends up helping the hotel or resorts and, therefore, should be preserved immediately with a chain of custody provided.”

Typically, there are two ways a guest can successfully prove a slip-and-fall claim against a hotel or resort. The plaintiff must prove the property in question had either actual or constructive notice of the defect. “Proving actual notice is a pretty simple concept either through production of documents or witness testimony,” Spitz said. “It can be shown whether or not representatives of the hotel actually had notice of the defect. Constructive notice is much more difficult to prove by the plaintiff; however, most plaintiffs will try to prove notice by showing that employees violated internal policies regarding inspections, that the hotel/motel representatives didn’t properly perform inspections, and that a reasonable inspect would have discovered the defect.”

In other words, the guest is attempting to prove the property acted unreasonably in preventing or identifying the defect. “This is usually proven by taking the depositions and witness testimony of maintenance individuals and the general manager of the property,” Perry explained. “In general, however, it’s difficult to prove a property owner negligent for a slip and fall, especially for an open and obvious defeat.”

The amount a hotel is liable for is determined by a jury or by the settlement. “If the case is going to trial, there are usually hard numbers presented to the jury regarding medical damages, liens, lost wages and future wages,” Spitz said. “Additionally, the plaintiff is usually compensated for pain and suffering for which there is no guideline for the jury to follow, unless it’s in a tort reform jurisdiction. Accordingly, the monetary figure that a hotel is liable for is usually dictated by the discovery process between plaintiff’s counsel and defense counsel regarding those areas that I just mentioned.”

Even though slip-and-fall accidents are common (they’re second to car accidents), the majority of these cases are often settled. “I do, however, think the trend is changing as more hotels are trying to protect their brand name,” Perry said. “They often feel that vigorously defending a case to verdict instead of settlement can be the only way to protect the brand’s name.” HB

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