This week’s question comes from Paula in the Sunset, who writes:
Q: “Chris, my father was shopping last month at his neighborhood supermarket. It’s one of the national brands. He had to use the restroom, which was in the rear of the supermarket off a hallway that led to the stock area. As he followed the signs to the restroom, he slipped and fell. He is 82 years old and broke his right hip, which required surgery. He is now recovering in a rehabilitation facility. My father does not remember why he fell. Another shopper was exiting the restroom as he fell. He helped my father and gave him his phone number. I called and thanked him for his assistance. The shopper said there were smashed strawberries on the floor near where my father fell. The event has turned my father’s life upside down. He has difficulty concentrating and is depressed, and his recovery will take months. He has Medicare but is receiving bills. He is on a very tight, fixed income. What can I do to help him?”
A: Paula, I hope your father has a full recovery. From the clients that I have represented, I know how serious the pain and mental anguish a patient who fractured his or her hip feels. I, myself, suffered a massive pelvic fracture and still have implanted hardware. It can be life-changing. From my experience, I can tell you that one way you can help him is to encourage him to concentrate not on his limitations but instead on what he can do and that for which he is grateful. That attitude will aid in his recovery.
California law requires all owners and managers to maintain their properties in a safe condition and warn of any dangers. California Civil Code states, “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” An individual may bring a “premises liability” lawsuit against a property owner who fails to meet this standard and seek compensation for his or her injuries.
Slip-and-fall injuries occur frequently in supermarkets and convenience stores. It is common for customers to spill containers of milk, soda, wine and other liquids in the aisles. If another customer immediately falls on the wet floor following a spill, usually there would be no basis for bringing a premises liability lawsuit against the supermarket, as the manager most likely would not have notice of the dangerous condition or an opportunity to correct it. On the other hand, if a store employee learned of the hazard and did not immediately clean it up or provide a warning until someone could promptly come and clean it, there would be a sound basis to bring a legal claim.
Your father’s situation is less common, but one in which the liability of the supermarket may be more readily established. It is doubtful that any customer was carrying strawberries to the restroom and dropped and crushed them on the floor. What is more likely is that the strawberries were dropped by an employee taking fruit from the stock room to the fruit and vegetable section of the supermarket. This may be considered negligence, to drop food on the ground and not immediately clean it up.
The fact that strawberries were smashed may indicate that they were there long enough for other employees to have seen them and cleaned the floor. If the store has video, it would be helpful for both parties to see when the strawberries fell, if other employees walked by them and if that is, indeed, why your father fell.
Your father may have stumbled for reasons unrelated to the strawberries. Video often helps everyone avoid litigation. Many times we have seen video and counseled clients against bringing a suit. In other instances, video has been critical proof leading to settlement or victory at trial.
There is a type of insurance that is most likely immediately available to your father, regardless of who is at fault. It is called “medical payments coverage” and is standard component of most property insurance policies held by business (and private property) owners as part of their liability coverage. Ask the store for its insurance company’s name and contact them for information on medical payments coverage. It can help pay for your father’s deductibles and protect his credit. You don’t need to release any other potential claims to get this coverage. (So don’t sign any releases or waivers.)
I recommend you contact an experienced trial lawyer to gather additional information to properly evaluate the claim and advise you on your options. In the interim, tell the store to preserve any video and take photos of his injuries and make sure you have his shoes. Don’t clean his shoes or let him wear them until they have been examined to see if there is plant material on the bottom. If he slipped on strawberries, there should be some embedded in the tread on his shoe.