Written by: Judge Anthony P. Calisi (ret.)
According to the National Safety Council, more than 1 million people are injured or killed each year in stair accidents. If you’re hurt after slipping and falling down a staircase, you may have a legitimate personal injury claim. To maximize your insurance settlement you must have a working knowledge of premises liability law. This article will tell you what you need to know.
Common stair accident injuries include:
- Cuts, abrasions, and contusions (bruises)
- Sprained tendons, ligaments, and muscles
- Fractured bones, usually hands, wrists and arms
- Whiplash, neck and back injuries
- Head and shoulder injuries
Compensation for Damages
Premises liability laws state that when a property owner or manager’s negligence injures a visitor, the visitor has a right to compensation for his personal injury damages. Damages include things like medical and chiropractic bills; out-of-pocket expenses for medications, crutches, slings, wheelchairs, etc.; lost wages, sick days and vacation time; and pain and suffering (emotional distress).
Legal Duty of Care
The law states that those who own or control real property have a legal duty of care (obligation) to keep that property safe and hazard-free for visitors. These laws apply to all property, including staircases, stairwells, and escalators. Also, most cities have standard building codes that govern stair dimensions.
This means property owners must do everything reasonably possible to make sure all stairs on the premises are safe. When they fail to keep their stairways safe, property owners have effectively breached (violated) their duty of care. This breach is referred to as negligence.
Example: Broken Step
A landlord received several complaints from tenants over a period of weeks about a broken step on an entry staircase in the apartment building. The broken step makes the stairs inherently unsafe. It’s a dangerous condition. Consequently, the landlord has breached (violated) her legal duty of care to those who use the stairs, and is therefore negligent.
Example: Improper Escalator Maintenance
An escalator manufacturer sold and installed a Model XDT escalator in a shopping mall. In its maintenance instructions, the manufacturer stated all owners who purchase the Model XDT must oil the inner gears once every thousand hours of use. Failure to do so might result in dirt clogging the escalator mechanism, causing it to stop suddenly.
In an effort to save time and money, the shopping mall owner decided to have her crew change the oil every 2,000 hours. At about 1,600 hours of use, the escalator stopped suddenly and threw a woman forward, resulting in her tumbling down the escalator steps. The shopping mall owner was found negligent for failing to abide by the manufacturer’s maintenance instructions. She is therefore liable for the woman’s injuries.
Burden of Proof
What determines negligence? Every case isn’t as clear as the landlord’s and mall owner’s. The answer lies in the underlying circumstances of each stair accident. The court or insurance company must weigh each set of facts on its own merits. You can’t just presume the property owner was negligent because you fell and got hurt.
Just as the property owner has a duty of care to make sure the stairs are safe, the injured visitor has a burden of proof to show the owner was negligent. In other words, the visitor must have believable proof the owner didn’t fix a dangerous condition. Certainly, the owner isn’t going to admit she was negligent. She and her insurance company will leave it up to you to prove.
Evidence – Proving Your Claim
Proving a property owner was negligent requires believable evidence. To succeed in your stair accident claim, you eventually have to deal with an insurance claims adjuster. His job is to deny your claim or to pay as little as possible for your damages.
You’re on your own when dealing with these adjusters. The adjuster won’t sympathize with your plight. The only way you’re going to settle your injury claim for what it’s really worth is to overwhelm the adjuster with solid evidence of his insured’s negligence.
Photographic and video documentation
Photographs and video footage are extremely convincing evidence. It’s hard to argue with a picture clearly showing a broken step, torn carpeting, or missing stair banister.
If you’re hurt in a stair accident, grab your digital camera. If you don’t have one available, take out your cell phone. Take as many shots as you can, making sure to first turn on the date and time stamp function. You want to ensure you clearly identify the dangerous condition and document it in relation to the surrounding premises.
Example: Documenting the Scene
Jenny was in a professional building. After finishing a dental appointment, she chose to take the staircase instead of the elevator. To steady herself while walking down the four flights, Jenny held onto the wooden stair banister. As her hand slid along the banister, Jenny suddenly felt a sharp pain in her hand. A screw sticking out of the banister caught her palm. Jenny fell forward and tumbled down the concrete steps, suffering a broken collarbone and multiple bruises and scrapes.
Fortunately, another visitor, Harold, was walking down the stairs a few steps behind Jenny. Harold saw Jenny fall and quickly came to her assistance. Harold helped Jenny to her feet. As he did, he noticed a large gash on Jenny’s head and cuts and scrapes on her bloodied hands.
After Harold dialed 911, Jenny asked him to use her cell phone to photograph and video the stairwell and stair banister. After turning on the date and time function, Jenny asked Harold to focus on the screw. To portray the screw’s dimension more accurately, Harold took out a quarter from his pocket and held it next to the screw. Harold used the video to pan up and down the stairwell. Finally, he took footage of the area where Jenny fell and of her injuries.
Witness statements and contributory negligence
In Jenny’s case, there are two witnesses. One is Harold and the other her dentist. Although Jenny’s dentist wasn’t in the stairwell when Jenny fell, she can help answer the insurance company’s contention that Jenny contributed to her own injuries.
Insurance claims adjusters are shrewd. As soon as the adjuster finds out Jenny fell after seeing her dentist, the adjuster will claim she fell because she was still under the influence of nitrous oxide or anesthesia. On this basis, the adjuster may deny Jenny’s claim, or at a minimum substantially reduce any settlement offer.
To make a preemptory strike, Jenny should ask her dentist to write a letter verifying Jenny didn’t receive any chemical agents that might have impaired her. Jenny can keep her dentist’s letter just in case the adjuster tries to bring up the issue of Jenny’s contributory negligence. Smart move!
Next, Jenny asked Harold to write a letter detailing exactly what he saw. She asked him to make clear in his statement the pain and suffering he saw her go through as she lay on the cold cement floor. She asked him to make sure he mentioned the first time they met was in the stairwell at the time of her fall. Doing so makes Harold a much more credible witness. It shows he has no financial or personal interest in the outcome of Jenny’s injury claim.
Harold’s statement doesn’t have to be on fancy paper. He doesn’t need to type it, have it notarized, or sworn to. As long as it’s legible and Harold dates and signs it, it’s legally sufficient.
An incident report is a form completed by property owners or managers that details the circumstances of an injury. For Jenny, it’s important she contact the professional building’s management office as soon as possible after the accident to report her injury. They will have someone complete an incident report that will serve as another link in the chain of evidence. The office will send the report to their insurance company.
Admissions against interest
An admission against interest is a statement a property owner or one of his employees makes that helps show their own negligence. When Jenny called the office to report the incident, the receptionist said “Oh yes, we’ve had some complaints about that stair banister for over a week now. We’re waiting for the repair crew to fix it.” The receptionist admitted the problem, which is an admission against interest and strong evidence the property owner knew about the danger.
Photographs, witness statements, and incident reports are substantial additions to Jenny’s arsenal of evidence. Now she must link the fall to her injuries. She needs to ensure that her injuries and related damages are seen as the direct and proximate (legally acceptable) result of the fall down the staircase. She’ll do that with her medical records.
Paramedics, responding to the scene, will treat Jenny. The paramedics will complete a patient treatment or transfer report. The report will indicate the date and time of the incident, the nature of Jenny’s injuries and treatment, and her transfer to the local emergency room. A copy of the report can be obtained for a nominal fee.
The emergency room admitting staff and the treating physician will add to the medical documentation. The physician will diagnose Jenny’s injuries and write a prognosis for her recovery. If Jenny’s injuries were less serious, not requiring paramedics and emergency room treatment, she should still see her family physician immediately after the incident. Regardless of where she gets treatment, Jenny must obtain copies of all her medical records.
The more time that elapses between the fall and her medical treatment, the greater the chance the insurance adjuster will say Jenny’s injuries were caused by something else that happened after she left the building.
Dealing With the Insurance Company
Once you accumulate all your evidence, it’s time to begin negotiations with the adjuster. When you first speak with the adjuster, she’ll likely want to record your statement. This is standard operating procedure for most insurance companies. Because you know the adjuster is recording your statement, it’s a good idea to practice what you’re going to say beforehand. You’d be smart to consult with an attorney before giving your statement.
Make sure not to give an opinion. Just make it perfectly clear you know her insured was negligent and have the evidence to prove it. In your statement, make absolutely certain not even to hint you may have contributed to your own injury. Don’t ever say things like, “I was in a rush,” or “My shoes were new, and the soles were still slippery.” If you blame yourself, the insurance company can deny your claim or drastically reduce your settlement amount.
Next, offer to send the adjuster all your evidence. If you missed work due to the injury, have your employer write a letter on company letterhead verifying the dates you were absent and the amount of wages you lost. Finally, don’t agree to settle your claim until you complete treatment or you know the total amount of all your damages.
Personal Injury Attorneys
Personal injury attorneys aren’t always necessary. If you have soft tissue injuries like sprains, minor cuts and scrapes, whiplash, etc., you can probably handle your own claim. If you hire an attorney, her fees may overwhelm the settlement, leaving you with very little.
On the other hand, if your injuries are more serious, such as broken bones, scarring, head trauma, etc., you need an experienced personal injury attorney. Attorneys can take depositions (recorded statements), subpoena business records, conduct extensive pretrial discovery (to obtain all documents the other side has), and if necessary, file a lawsuit.
In serious injury claims, a personal injury attorney is likely to get a much higher settlement than you could by handling the case yourself.
Lawsuit Where Plaintiff Fell While Walking Up a Staircase – In this slip, trip and fall lawsuit the plaintiff is asking the court to award damages sustained as a result of falling on an office building’s defective staircase.December 22, 2016
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Fatal Stairwell Fall
This case study below illustrates how Advanced Simtech was able to assist in determining the circumstances of a fatal fall down a flight of stairs
The client explained that there was question over whether the fall was the result of a push, or purely accidental, and requested assistance in the form of our Biomechanics expertise.
Basic measurements from the staircase were used to build a virtual scene, including a detailed Human Body Model, in order that a series of simulations could be performed.
As an extension to this work, we also carried out a study into staircase layout and its effect upon injury causation during such a fall.
Case Study – Fatal Stairwell Fall
Customer: Private Client
A male fell backwards down a flight of stairs, receiving fatal injuries. In order fully understand the limited information available regarding the cause of the fall, our client requested an analysis of the event to be carried out as it was questioned whether it was an accidental fall or an intentional push that resulted in the accident occuring.
The simulation model was developed to provide an insight into the impact locations and injury causation mechanisms for a range of initial scenarios. The main variable was the initiator of the fall, i.e. a loss of balance or an external push.
From simple scene measurements of step height and pitch, a Madymo model of the staircase was created. A scaled Madymo Human Body Model was then carefully positioned at the top of the stairs, its stance having been specified by the client, based upon witness statements.
Initially the human was allowed to fall under gravity with no other external influence. As the model developed, external forces were applied to represent pushes of varying magnitude and points of application, e.g to the left shoulder, right shoulder, chest etc.
By examining the injuries and the impact locations during the simulated falls, it was possible to assess the influence of the fall in terms of the initial body posture and any additionally applied forces initiating the fall.
As an extension to the work, a brief study was carried out which examined the influence of stairway design on the likelihood of injury during a fall. This was achieved by varying the pitch (steepness) of the original staircase in the simulation and finally by implementing a ‘corner’ layout.
By applying various initial inputs to the human, it was apparent that an external force was not required to match the physical evidence.
Advanced Simtech were on this occasion able to show that foul play was unlikely to have been a factor in the fatal stairway fall.
Furthermore, via the flexibility of the simulation model created, it was possible to show the influence of changes in the staircase design on the likelihood of serious injury during a similar fall. This lead to the publication of an article together with ARUP in ''Hospital Engineering & Facilities Management' a global publication for civil engineers and architects involved in the design and construction of public buildings.