Photo of slippery floor with a caution sign and people walking near it

Don’t give up on summary judgment proceedings in premises liability situations

Most of us are familiar with the Summary Judgment process. If pursued, it is usually a chance for a defendant to explain to the Court why the claimant’s case could not possibly succeed at trial. Premises Liability claims in Ohio are particularly susceptible to summary judgement given the state’s adoption of the “open and obvious” doctrine as well as the “two-inch” rule. As a result, setting the claim up for a motion for summary judgment is often the primary goal when a claim is asserted and litigation commenced. However, most of us are also familiar with frustrating denials of summary judgment. How could a parking block not be open and obvious? How could a premises owner have known of a spill that occurred just moments before a claimant’s fall? Although individual results and case law can seem to be inconsistent, the benefits in filing a motion for summary judgment usually outweigh the determents considerably.

Taking the “glass is half empty” approach, let’s consider the primary detriment; the cost of filing a motion for summary judgment. Deposition costs and attorney fees can range from a few thousand to several thousand dollars for what some consider a futile effort, or less than likely chance at success. Without a doubt, filing a motion affects the bottom line. However, the glass is truly half full (if not more) as there is consistently a good chance it helps in the long run. A) it could result in a defense verdict. Best case scenario – no indemnity payments, no more litigation fees, B) it puts pressure on the claimant to resolve the claim or C) it compels the claimant to set forth the best evidence to overcome summary judgement.

In most cases a pending motion for summary judgment fosters reasonable settlement negotiations. Claimants and claimant’s counsel have a vested interest in ensuring some recovery for the alleged loss. Most claimant’s counsel, if not claimants themselves, are well aware that a motion for summary judgment may be granted despite what claimant’s counsel may deem clear issues of fact. As a result, settlement negotiations often become reasonable when a motion for summary judgment is pending. This is a key time to resolve a case, as the claimant is ensured some recovery and the defendant is assured a capped indemnity value while avoiding the time and expense of trial preparation. Finally, if nothing else the motion flushes out issues, strengths and weaknesses in the claim, which better enables the defense to evaluate the case and prepare the defense. If the claimant is relying on one specific fact to avoid summary judgment, that fact can be addressed more directly in trial preparation to enhance the defense or perhaps establish grounds for a directed verdict.

Recently, I had the opportunity to file motions for summary judgement in two premises liability cases. The first (“Case I”) involved significant injury, while the second (“Case II”) had questionable damages. Regardless, both claims were heading toward trial as no reasonable settlement negotiations were on the horizon. Case I entailed undisputed facts of water on the floor, a customer slip and fall, and a broken leg. Multiple depositions were taken and conflicting stories described how water got on the floor. Was there a spill that was mopped up and wet floor signs put out, or did a customer’s child spill water on the floor just before the fall? To foster summary judgment analysis, the claimant’s version of the facts was offered that a child had spilled water on the floor. It was then argued the premises owner had no knowledge of the spill before the fall. Strategically, the claimant could have utilized a contrary deposition to argue there was a known spill that was cleaned up and for which wet floor signs were posted. Maybe this would have created an issue of fact. However, the claimant stuck to her version of the facts, causing the Court to determine there was no evidence the premises owner had knowledge of the spill, actually or constructively. Summary judgment granted.

In Case II video surveillance captured the claimant slip and fall in a buffet aisle. The claimant does not know what caused her to fall, or how long the substance on the floor had been on the floor. The premises owner had no knowledge of any foreign substance on the floor, so it set up classic grounds for summary judgment. The only issue was an allegation that the claimant’s cousin, also in the video, could potentially identify the substance and link it to a failure by the premises owner to keep the area clear. Despite this potential assertion, a motion was filed. Time to oppose the motion passed, while claimant’s counsel tried to secure the witness. It never happened and the motion was granted.

Both of these cases involved issues that some would argue could relatively easily overcome summary judgment. But the outcomes cannot be disputed. One thing is for certain, summary judgment will not be granted unless a motion is filed. So if there is a good faith basis to file for summary judgment, it should be given strong consideration.

 


 

Drew Wachtman, Perez & Morris headshotDrew Wachtman is a Premise Liability and Insurance Coverage litigator in the Perez & Morris Columbus office. He has substantial first chair jury trial and appellate experience, as well as experience with various business formation transactions. Drew’s litigation experience has enabled him to practice extensively throughout the courts in Ohio. Drew also consults on business and risk management issues.

Drew and his wife are the proud parents of three daughters. Read more

Photo of hands eating burgers and fries

Do’s & Don’ts of Food Claim Handling

“Now, ya’ll would guess that more often than not, the highest paid player on an NFL team is the quarterback. And you’d be right. But what you probably don’t know is that more often than not, the second highest paid player is, thanks to Lawrence Taylor, a left tackle. Because, as every housewife knows, the first check you write is for the mortgage, but the second is for the insurance. The left tackle’s job is to protect the quarterback from what he can’t see comin’. To protest his blind side” – Leigh Anne Tuohy

There is not a restaurant, chef, or restaurateur in the world that looks forward to “the call”. You know the one. The “call” is the first notice a restaurant receives from a customer that the customer became ill after eating at the restaurant. It is imperative that every restaurant have a policy, a protocol in place to ensure that their blind side is covered.

Photo of hands eating burgers and fries

Do’s & Don’ts of Food Claim Handling

DO have a plan in place before you need it

Every restaurant should have a policy in place for receiving any such calls. For example, any customer who calls to complain about an illness or some other issue with food (i.e. an undesirable foreign object found in the food) should be directed to a store manager or someone else who has been trained and advised on how to handle customer complaints.

DON’T Apologize

Regardless, whoever first answers the call should not apologize to the customer.

DO Ask Follow Up Questions

While it is human nature to say “I’m sorry” or “sorry to hear that” when someone explains they are not feeling well or upset, that simple phrase has been used by plaintiffs who claim the apology is an admission of guilt. The better option is to say something neutral and to start interviewing the customer to get as much information as possible. One option is to respond, “Oh no! We have not received any other complaints from customers, do you mind if I ask you a few questions?”

DON’T Volunteer Information

It is also to be noted that the restaurant employee handling the initial claim SHOULD NOT volunteer any information. Even if the restaurant may have received another call where a customer was reporting an illness, such information should not be shared with any other customer. At this stage, it is simply too early to know whether there is an issue at the restaurant or if there is any commonality between the two customers. Telling a customer that other customers have complained as well will only give the impression there is a larger issue at the restaurant when, in reality, any similar complaints may be completely unrelated. Again, the discussion with the customer should focus solely on that customer and getting as much information as possible.

DO ask the following fact-finding questions.

What did you eat?

Although an obvious question, be sure to ask about everything the customer ate (i.e. appetizer, main course, sides, desserts, drinks). If other customers do complain, you will want to have a list of all foods ingested by each complaining customer to determine if there is a common food or ingredient that may have caused the illness.

When did you eat at the restaurant?

The time between when the customer ate at the restaurant and when symptoms started is important in determining whether the illness could be related to food consumed at the restaurant. Some symptoms take several hours to first appear after eating contaminated food. If the customer was just at the restaurant a half hour before calling, it is unlikely eating something at that restaurant caused the customer’s illness.

What else did you eat the day you became ill?

 This goes hand-in-hand with the timing issue discussed above. If the customer had another meal a few hours before eating at the restaurant, that meal could be the cause of the illness. Thus, it is important to know when and what the customer ate the same day he or she ate at the restaurant.

 What symptoms are you having and when did they start?

This information will help evaluate the customer’s claims. As stated above, some symptoms may take hours after eating to develop. Thus, even if the symptoms are the type normally associated with a food-borne illness, the timing of the symptoms may exclude the food consumed at the restaurant as a cause.

 Anyone else in the customer’s party with symptoms or without symptoms?

you will want to know whether the customer ate with anyone else and whether anyone else in the customer’s party is experiencing similar issues. This is especially important if the other member of the party consumed the same food as the complaining customer. Also instructive is whether other members of the customer’s party did consume the same food but did not experience any symptoms. This will help rule out the food as the cause of the customer’s illness.

Was medical treatment sought?

The restaurant should also ask the customer whether he or she sought medical treatment and, if so, whether a diagnosis was received. If medical treatment was sought, be sure to ask what type of treatment, if any, was prescribed.

Was medical treatment sought?

If the customer’s order was a carryout order, you should ask whether the customer still has the food.

We usually work with expert consultants and toxicologists to secure and test any food that was consumed by the complaining customer to test for any contaminants.

In the case of a foreign object, the consultant can also test to determine what the foreign object is and, in some cases, determine when the foreign object was introduced into the food.

If the customer still has the food, or if it is at the restaurant, efforts should be made to have the evidence preserved.

Every restaurant should have guidelines in place for the safe handling of any evidence to be preserved. Before ending the conversation with the customer, be sure to take down all contact information.

DO follow up with the customer the following day

Let the customer know a thorough investigation will be conducted. It is also a good idea to follow up with the customer after a day or so to see how the customer is feeling. By doing so, the gesture will let the customer know the restaurant cares about its customers and takes reports seriously. It must be noted that while a restaurant cannot prevent a customer from pursuing a formal complaint, having the information described above will put the restaurant in a position to mount a strong defense against any questionable or meritless claims

Ohio Supreme Court Strengthens Voluntary Abandonment Doctrine

On September 27, 2018, in a decision that reverses two of its prior decisions, the Ohio Supreme Court strengthened the voluntary abandonment defense used by employers to argue against temporary total compensation in a workers’ compensation claim. The opinion in State ex rel Klein v Precision Excavating and Grading Co. holds that temporary total compensation is not payable in a claim when the injured worker voluntarily removes himself from his former position of employment for reasons unrelated to the claim, even if the claimant remains disabled at the time of the separation from employment.

Supreme Court Ruling on Klein v. Precision Excavating & Grading Company

In Klein, the injured worker informed his employer on October 31, 2014 that he was moving to Florida, and asked about the procedures he needed to follow to properly quit his job. On November 3, 2014 he told a co-worker that he planned to quit in two weeks and move to Florida. He was then injured on November 5, 2014, and did not return to work after that date.  His doctor certified a period of temporary total disability from the date of injury to an estimated date of January 5, 2015.  On November 13, 2014, the claimant informed the Ohio BWC that he planned to move to Florida on November 20, 2014. At administrative hearings before the Industrial Commission of Ohio, compensation was only granted for the closed period from November 6, 2014 through November 19, 2014.  The Industrial Commission found that the claimant had abandoned his employment as of November 20, 2014, for reasons unrelated to the claim, and was not eligible for temporary total compensation from November 20, 2014 forward.

Employee’s Own Actions Preclude Workers’ Compensation Payment

Klein filed a complaint in mandamus in the Tenth District Court of Appeals, disputing the Industrial Commission’s decision to limit his compensation to the period through November 19, 2014. The Court of Appeals granted a limited writ of mandamus and returned the case to the Industrial Commission, with instructions to determine whether the claimant was physically capable of performing his former position of employment on November 20, 2014, per prior case law. The matter was appealed to the Supreme Court and the Supreme Court reversed the Court of Appeals and held that the evidence supports a finding that it was Klein’s intention to leave Precision Excavating permanently and therefore his move to Florida was a voluntary abandonment of his employment that precludes payment of temporary total compensation after November 19, 2014. The Court held that it was Klein’s own actions that prevented him from returning to his former position of employment and not the workplace injury.

Ohio Supreme Court’s Striking Departure Favors Employers

This is a striking departure from prior decisions of the Ohio Supreme Court and is favorable to employers.  In its analysis, the Supreme Court acknowledged that in the various voluntary abandonment cases it had issued over the years, it had essentially created two lines of precedent for voluntary abandonment.  There was one set of rules granting compensation for employees who are terminated for cause while disabled, and another set of rules denying compensation for employees who voluntarily left the workplace. In Klein, the Court held that in both situations the relationship between the industrial injury and the loss of earnings is severed. Based on this decision employers can successfully argue voluntary abandonment against the payment of compensation, even if the injured worker is disabled at the time of the abandonment.

Related Supreme Court Rulings Not Impacted

It should be noted that the Supreme Court did not disturb the decisions Gross II, where the termination was causally related to the injury or Cordell, where the injury resulted in the discovery of the work rule violation.  Under both fact patterns, temporary total compensation will not be precluded by a voluntary abandonment argument.

Posted by Beth Weeden

 

Rule 409: Offers to Pay Medical and Similar Expenses

Risk Management Flow Chart

Risk cannot be fully eliminated. Part of being a business leader is accepting and mitigating risk. Accidents are a side effect of doing business.

From primary costs to societal costs, accidents are costly. When one occurs, businesses need to respond by assisting the injured. Prompt medical attention reduces the likelihood of serious injury. Indeed, minor untreated injuries can become serious. Whether you are liable or not, offering to pay for the associated medical expenses upfront can greatly decrease your overall risk. Unless, the probative value is substantially outweighed, the evidence of offering to pay or paying cannot be used against you to prove liability.

Rule 409 (The Federal Rules of Evidence) states, “Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.” Indeed, Rule 409 is policy driven to encourage companies to pay for the medical expenses of those injured on their premises. Nonetheless, Rule 409 does not preclude the admission of accompanying statements or the admission to prove a different fact at issue that is not liability.  To develop an accident protocol to help mitigate risk, contact us.

Posted by Sarah Crabtree Perez and Chad Trownson

Open-and-Obvious Doctrine Saves Save-A-Lot from Liability

Caution Wet Floor

Slip-and-Fall cases can cost a company substantial dollars.  As just one example, in Cintron-Colon v. Save-A-Lot, Ms. Clinton-Colon was shopping at an Ohio Save-A-Lot when she slipped on “a bright yellow liquid and fell.” Largely due to the nature of the puddle being bright yellow the court concluded that the “liquid would have been observable to a reasonable person. Therefore, the puddle was an open-and-obvious condition and the store owed no duty to the appellant (Ms. Clinton-Colon) to warn of its existence.”

For slip and fall cases, the Supreme Court of Ohio adheres to the open-and-obvious doctrine, which directs a court’s attention to “the nature of the dangerous condition itself, as opposed to the nature of the plaintiff’s conduct in encountering it.” Therefore, the open-and-obvious doctrine requires an objective analysis that looks to whether a “reasonable person would deem the danger open-and-obvious,” rather than the subjective opinion of the victim.

Whether a hazard is visible is not the sole consideration of the open-and-obvious doctrine, the attendant circumstances must also be considered.  Attendant circumstances encompass all the facts involved with the accident. If a distraction occurred that would reduce a reasonable person’s attention, the distraction must be taken into account and a reduction of the amount of care expected.

Not all puddles are bright yellow and carry a strong presumption of being open-and-obvious. Especially in the winter season, floors become wet for a variety of reason and become slipping hazards that could cost you millions. To reduce the probability you are found liable for a slip and fall case, you can post signs indicating the floor is wet at your store entrance. As was held in Finzzo v. Speedway, a Michigan case, “Regardless of whether the wet floor itself was an open and obvious condition, the wet floor signs posted at each store entrance to warn customers of a potential risk certainly were.” The court further elaborated, “The proper display of a wet floor sign makes the danger associated with a wet floor open and obvious as a matter of law, and is in fact why such signs are used.”

 

Authored by Sarah Perez & Chad Trownson

Breaking the Ice; New York’s Law on Clearing Icy Sidewalks

Winter Time, Snow Removing

Living and working in Ohio, we have learned to use extra caution when there are icy conditions. Even with extra caution, walking on ice can be dangerous. Roughly 1% to 5% of falls result in a serious fracture, according to the Journal of Bone & Joint Surgery and it is likely that ice related falls are worse than that. In fact, over 20% of US private industries injuries stem from slip and fall accidents.

19 Action News (a Cleveland news company) recently highlighted the dangers of ice on sidewalks. Most of 19 Action News’ advice falls into two categories; walk careful in proper footwear and to remove ice that creates the danger.

In New York, lawmakers have attempted to define the extra care that is required in clearing the sidewalks.  The New York Administrative Code indicates liability for snow and ice typically begins “four hours after the snow ceases to fall.” There are two main exceptions at play. First, there is an exception for certain nighttime hours (9:00 PM to 7:00 AM). Second, there is an exception if the removal would damage the pavement or the weather does not permit its removal.  If you live or work in New York, you better have your shovel handy.

For More Information:

The National Library of Medicine National Institutes of Health detailed the likelihood of injuries for age, profession, gender and a variety of other factors.

 

Authored by Sarah Perez & Chad Trownson

Lake Health’s New Pilot Project Benefits Self-Insured Employers

Risk Management Flow Chart

In theory, insurance is directly linked to risk. Imagine flipping a coin. If it lands on heads, then you get $1.05. If it lands on tails, then you lose $1. Chances are you would be willing to play the game because the stakes are low. A risk neutral person would flip the coin because the expected results are favorable. However, most people and established companies are actually risk adverse. Imagine flipping a coin again. But this time, if it lands on heads, you get $105k, but if it lands on tails you lose $100k.

Did your propensity to play go down? If you were forced to play, would you be willing to pay $1,000 to avoid playing altogether? If so, you are likely risk adverse. Insurance companies thrive because of risk aversion.  Through pooling, insurance companies greatly reduce their risk.

Self-insured employers understand the risks and benefits associated with their employee’s health care, which makes Lake Health’s pilot program all the more intriguing.   Lake Health, a Northeast Ohio-based community health system is partnering with Lubrizol Corp., Progressive Corp. and the Lake County Schools Council directly to provide various degrees of health care to roughly 2,500 people.  By cutting out insurance companies, Lake Health and its reported partners could see an enormous windfall and reduced risk. Interesting concept. We will see who follows suit.

 

Authored by Sarah Perez & Chad Trownson

BP Oil Spill: A Case Study in How Limited Liability May Only Go So Far.

Oil Spill On Beach

The Gulf of Mexico oil spill of 2010 is widely considered the worst U.S. oil spill of all time. BP has paid over 40 billion dollars in spill related expenses and may owe around 14 billion more in federal fines.

Litigation surrounding the spill has produced a host of interesting legal issues, and the litigation over the federal fines is no exception. According to the Wall Street Journal (http://www.wsj.com/articles/oil-prices-to-play-into-bp-fine-1421610065), BP believes it “has no obligation to lend money to its subsidiary and that the court should disregard the broader BP group’s financial resources in imposing a fine.” If BP owes no obligation to pay the debts of its subsidiary, then it would not have to pay the roughly 14 billion in federal fines and the subsidiary would most likely go bankrupt or face a smaller fine.

This is one example of how using subsidiaries to reduce risk is a valid business strategy, but it is not full proof. The U.S. Justice Department argues, “BP’s subsidiary is controlled by the parent,” thus BP is responsible for the federal fines. Essentially, the USJD is attempting to remove the limited liability of the subsidiary and make BP fully liable for the subsidiary’s action.

In addition to liability for fines, BP is required to make court-ordered settlement payments to businesses affected by the oil spill pursuant to a settlement agreement approved by the U.S. District Court for the Eastern District of Louisiana in 2012.  Claims may be made for both economic losses and property damage.  The settlement is referred to as the “Deepwater Horizon Court-Supervised Settlement Program.”  Currently, the deadline for affected business to file claims and take part in the settlement is June 8, 2015.  Retailers who have lost sales as a result of the spill and its related decline in tourism and shopping may consider whether they are able to submit a claim.

For more information on the settlement and claims process, visit:  http://www.deepwaterhorizonsettlements.com/

 

Authored by Sarah Perez & Chad Trownson

Tiger Woods Again Making News—This Time for a Slip and Fall

NORTON, MA-SEP 1: Tiger Woods tees off the fourth hole during thTiger Woods will go down as one of the greatest golfers of all time. He receives publicity regarding his level of golf play all the time, good and bad.  And, he will also forever be known for his reputed $110 million divorce from Elin Nordegren in 2010.  However, Tiger is currently receiving other attention in the legal world related to his former security guard’s slip on wet marble while patrolling Tiger’s mansion in 2010 (actually owned by Tiger’s company).  The former guard, John Davis, has decided to sue based upon a negligence theory: namely, the marble was wet due to negligent orientation of a sprinkler.  Of course, attorneys in Woods’ camp argue the risk was foreseeable.  This is just another reminder that premises need to not only be safe for customers and business invitees, but for employees and independent contractors as well to avoid costly workers’ compensation and tort claims.

For more information visit: http://www.businessinsurance.com/article/20150205/NEWS06/150209905/302

http://www.miamiherald.com/entertainment/ent-columns-blogs/jose-lambiet/article8725001.html

Authored by Sarah Crabtree Perez and Chad Trownson

Data Security Risk Should Rank High on Retailers’ Priority Lists

Identity Theft

A recent study suggests data security is very low on many executives’ priority lists of perceived risks to their businesses.  Over 800 executives in Australia, France, Germany, Hong Kong, Norway, Sweden, UK and the US were asked what the greatest risk to their companies were, and data security finished 8th. http://enterpriseinnovation.net/article/few-business-decision-makers-see-poor-data-security-greatest-business-risk-549396326.   Business competition, finding talented people, maintaining profits, growing the business, attaining and maintaining a great reputation, deployment of new technology, and supporting legacy infrastructure all come before protecting one’s data. Additionally, while 63% of the executives expected to suffer a security breach at some point, only 44% believe their critical data is completely secure.  Even less (37%) believe their consumer data is completely secure.  Yet only 1% of the executives saw data security as the greatest risk to their business.

Is this lack of fear crippling any movement toward widespread change in policy regarding data protection? A recent study has found that 70% of executives believe that their organizations do not even understand the full risks associated with data breaches (Study). Only 45% of executives believed that their own company’s response to data breaches was proactive or well-developed.

So what can be done? According to the 2014 Executive Breach Preparedness Research Report, in order to control and respond to data breaches, a company must start taking into account the importance and value of their data in their business operations.  “Without a well thought out plan in place, and without the proper guidance, training and process instituted throughout the organization, executives can stumble when dealing with the public outcry once sensitive data has been compromised,” said Arthur Wong, Senior Vice President and General Manager for Enterprise Security Services at HP (http://www.computerweekly.com/). Wong also notes that while no amount of money can completely protect companies from highly sophisticated cyber attacks, with proper preparedness, an attack can become a “speed bump in the road” rather than a “catastrophic business event”.

Therefore, the first step towards being prepared involves executives understanding that data security is critical. It should be considered at the same challenge level as finding talented people, maintaining profits, and growing the business.  As the holiday shopping season approaches, retailers should be mindful that it only takes one data breach to push customers through the doors of a competitor.  Looking through that lens, data security should be quickly on par with concerns like business competition, maintaining profits and overall business growth.

 Post by Sarah Crabtree Perez and Daniel Broidy