A personal injury lawsuit in Virginia (VA) has two parts: liability and damages. Damages are the result of the bodily injury to the person who is hurt, such as a broken bone and the lost wages and medical expenses associated with any orthopaedic surgery and permanent disability. The liability side of the bodily injury case is showing that the defendant was at fault in causing the plaintiff’s injury and that the plaintiff was free from fault.
Check out these other articles on slip and fall injury cases:
- Virginia Laws on Slips and Falls
- Slip, Trip and Fall Cases: When Is a Hole or Condition That Causes Personal Injuries Open and Obvious?
- Falling Products and Merchandise Cause Personal Injury Claims to Stack Up Against Retailers
To win a big slip and fall case in Virginia (VA), you typically need a clear injury that is so serious that it is really beyond any question. If you do not have a very serious injury, then it may not be practical to spend the time and money necessary to pursue a premises liability case, because the liability is always hotly contested in these cases in Virginia.
Most of the fight in these cases is typically over the premises liability issue. Take as an example a man who slips on grease on a floor of a buffet restaurant. As a result of the grease, he indicates that he has had multiple knee surgeries. I have recently handled a case just like that that occurred in Chesapeake, Virginia. The trick to winning that case is being able to show that the restaurant had a dangerous condition on its premises, namely the grease, and had notice of the same or should have realized it was there sufficiently far in advance of plaintiff’s fall in order that they could have done something to prevent it. That mouthful of a last sentence is the tricky part. First, you have to prove that there actually was grease or something on the floor. Often, the client has no idea what it was other than that there was a slick area on the carpet. The restaurant may deny that there was even any grease or slipperiness at all, as occurred in my case earlier this year. What ended up winning on that issue was that luckily my client had a friend who was with him at the time of his injury who also observed the discolored slick area on the floor. Without this corroborating witness, we would have been stuck with my client’s word against the manager of the store, who said she looked at the place indicated and there was nothing there.
Proving that there was actually something that caused him to fall is only the first step. We also need to have evidence of what it was, how it got there, and how long it was there. There is lots of bad Virginia case law that says that if the plaintiff cannot prove that the slippery condition was not just made 20 seconds before he fell by a fellow customer, then he cannot recover. The restaurant claimed that they had swept up in the area just 15 minutes before and there was not anything there at that time, so perhaps some other customer dropped something on the floor just before our client got hurt, and before the store could do anything about it. The best evidence in this situation is a party admission by some employee of the business establishment that the spill had been there for sufficient time for them to do something about it. We had some information that the store manager acknowledged that some other employees were supposed to clean up the area prior to our client getting hurt. In that case, the manager denied she ever said that. However, some evidence of that sort is critical to proving notice, which is that the restaurant had time to deal with the mess and failed to keep the area clean or do something about it once it became soiled. The only other way that you can prove notice in these slip and fall cases is if the nature of the danger is such that it had to have been there for a significant period of time. For example, in a grocery store case, if the banana peel that the person slipped on was already so blackened as to be inconsistent with having just landed on the floor. Likewise, your attorney may try to show a built up grease spot that had to be an accumulation over time.
As you can see, having sufficient facts to get past the judge to let them even give you the right to go before the jury is tricky in these cases in Virginia. Even after you prove that the business owner or occupant was at fault, you still have to show that your client acted reasonably for his own safety and was not contributorily negligent. If the jury believes that the danger was so open and obvious that your client should have avoided it, you lose.
My law partners and I have successfully handled many premises liability cases in the past. Each poses its own unique challenges. It is much like the tough area of medical malpractice where you can have a client who is very hurt but is not able to make a good recovery because of the difficult burdens of proof put on the plaintiff in the Virginia (VA) court system. Many lawyers shy away from even handling these types of cases because of the challenges.
For more information on this subject, please refer to our section on Property Owners’ Liability.