Wednesday, Jan 24, 2018
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Dale Emch

Restaurant may not be liable for injury from fall

Dear Dale: When I went to the restroom of a local chain restaurant the other day, I slipped and fell when my walker slid away from me. When I was on the ground, the floor around me was very wet, like it had just been mopped. There was no sign in the restroom to warn me about the wet floor. The fall caused me to break my hip and now I'm in the hospital. Is the restaurant responsible for my injuries?

ANSWER: Falls provide fodder for a lot of lawyer jokes, but we've seen a number of these cases in our office where the person was seriously injured.

Whether or not you can hold the restaurant liable for your injuries depends on a lot of variables. Let's go through some of the basics. Businesses generally are liable for the safety of their patrons if the employees knew of the dangerous condition. The employees' knowledge of the danger creates the liability.

In Ohio, courts initially look at three things:

•Whether an employee was responsible for the hazard, or:

•If an employee knew about the hazard, did he or she fail to warn patrons of its presence or remove the hazard, or:

•The hazard existed for so long that the lack of a warning or removal of the hazard showed that employees didn't exercise appropriate care.

If any of those factors are present, a business could be found liable, assuming the hazard caused injuries claimed by the patron. Showing those elements isn't always easy, though. If the business denies that it was responsible for the fall, a lawsuit would have to be filed. Depositions would have to be conducted to determine whether any of those elements existed, and even then the business could dispute liability.

Another major hurdle exists in these types of cases. If the hazard is deemed by the court to be open and obvious, the case could get tossed before it ever gets to trial. For example, if an employee left a mop on the floor and a patron tripped over the mop, most people would assume the business would be liable, right? Under the open and obvious doctrine, though, a judge probably would determine that a normal person should have been able to see the mop and should have avoided it.

The open and obvious doctrine is a very powerful defense in all slip and fall cases. In one case I reviewed, the injured person claimed she slipped on a patch of ice created by someone spilling a soda in the parking lot. The judge tossed her claim because the frozen soda was a different color than the parking lot, so the hazard was open and obvious. I'm not saying that was a good case - in fact it's the type of injury case people rightly ridicule - but if frozen soda on pavement is open and obvious, almost anything can be.

So, applying those general principles to your situation, you'd have to determine such things as whether an employee mopped the floor and failed to put up a warning sign; or, even if an employee didn't create the hazard, the employee knew about it and failed to correct it; or if the floor had been wet for such an extended period of time without the hazard being corrected it can be inferred the business didn't exercise the appropriate level of care.

After that, you'd have to be able to get past the open and obvious doctrine. Water on the floor from mopping likely wouldn't be an open and obvious hazard, but if there was so much water on the floor that any reasonable person would have seen it and taken steps to avoid it, that's a different story.

On another note, in these types of cases, it's helpful to document everything the best you can. Get the names, phone numbers, and addresses of all witnesses, including employees if possible. Also, because most people have cameras in their cell phones, take photos if the hazard is visible. The evidence you gather may be crucial to your case.

Hope this helped and I wish you well on your recovery.

Dale Emch practices law at the Charles E. Boyk Law Offices, LLC, in Toledo. In his column, he will discuss general legal principles and answer readers' questions. Neither Mr. Emch nor The Blade present or intend his column to be taken as legal advice. Readers seeking legal advice should consult with an attorney. Readers should send their questions to Mr. Emch at or Dale Emch, 405 Madison Ave., Suite 1200, Toledo, OH 43604.

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