Boca Raton slip and fall lawyer, Matthew Waring, explains what you should know about the difference between slip and fall cases and trip and fall cases.
Whether your case is a slip and fall versus a trip and fall in Florida makes a big difference on the strength of your case. To understand the difference, we have to cover some basics first.
Under Florida law, the general rule is that landowners (including property managers) have a responsibility to protect people they invite onto their property.
The logic is simple. The person who owns the property is in the best position to warn others of any danger on the property. Also, as a society, we generally want to feel confident and safe when we go into other people's homes, stores, or businesses.
What are a landowner's obligations?
A landowner is not permitted to intentionally harm trespassers without just cause. Most recently, an ex-police officer was was found guilty of murder after shooting a man she mistakenly believed was a trespasser.
Neither are landowners allowed to recklessly harm trespassers. Back in the day, there was a little trick to ward off intruders called a trap gun. The trap gun was placed on the ground or in a tree and aimed at a door or walking path. When someone opened the door or tripped a wire, the gun would fire. Trap guns are illegal and are a good example of a landowner recklessly harming trespassers. If you've seen the Home Alone movies, you know what reckless harm to a trespasser looks like.
Although a landowner cannot intentionally harm a trespasser without just cause or create dangers which may recklessly harm trespassers, landowners are under no further duty to warn or protect trespassers of dangers on their land.
That said, a commonly litigated issue is whether the injury victim was a “trespasser” or a “licensee” because landowners have to do more to protect people who are not trespassing.
Were you a "Trespasser" or a "Licensee"?
Imagine if you were to wake up in the morning and were surprised to see someone you've never met before inside your fenced in backyard. If that occurs, you are probably dealing with a trespasser. However, if the utility company goes in your backyard to lay a cable, they are considered licensees.
Licensees can also be people who you haven't invited on your property but you know from prior experience or custom that they frequent your property. The best example is someone who walks their dog on your front lawn. Although you didn't invite the dog to poo on your lawn, you know that the dog owner occasionally walks through your front lawn and front lawns are in the grey area between public/private spaces, so a court would probably say that the dog owner is a licensee versus a trespasser.
So what is the landowner's responsibility to a licensee?
A landowner has a duty to warn licensees of potential dangers on the property or to fix dangerous conditions so that innocent people don't get hurt.
For example, if a landowner drops a bucket of razor blades in their front lawn in an area where the landowner knows that kids occasionally play barefoot, the landowner should pick up all the razor blades or rope off the area and put up a sign or at least warn the children or their parents if they come in the area.
This is common sense for most people.
If the landowner simply does nothing in the situation and a child does in fact get injured, the child's parents could sue the land owner and recover money for personal injury.
When does a landowner have to warn or fix something?
Whether or not any specific condition on a persons property is considered a dangerous condition is a frequently litigated issue. It really depends on the context.
For example, people have tripped over sprinkler heads in someone's lawn and made successful personal injury claims. Landowners especially want to avoid making holes, pits, excavations, on their land without warning signs or taping the area off.
There are often other concerns such as weathered wooden decking which needs to be replaced or broken up concrete which could cause someone to trip and fall or even on earth wires which could cause a fall or ungrounded electrical devices and appliances which may create a shock.
Essentially, if there is some condition on your property which you think would be wise to warn your significant other or your kids about, then it is also worth warning anyone else who enters your property.
Which is a better case: Slip and Fall v. Trip and Fall?
It sounds comical, but there is a distinction between slip and fall cases and trip and fall cases. Both cases present their own set of issues to overcome.
First, in slip and fall cases (when someone slips on a liquid or other “transient substance” such as food matter), the injury victim must prove that the liquid or food matter was on the floor long enough for store employees to find it and clean it up. So, for example, if you are walking into a grocery store and slip on water and are injured, the question will be how long was the water on the floor before you fell. If the water got on the floor within several minutes before you fell, you don't have a very good case. A store is only required to have its employees search the place for spills about every 15 minutes.
In trip and fall cases, the condition on the property that causes someone to trip, like a cracked sidewalk, exposed tree roots, or even a parking stop, certainly existed on the property for several hours, if not days, or even years. So there is no excuse that the landowner wasn't aware of the danger that caused the trip and fall. However, the landowner does have an excuse that the dangerous condition on the property was open and obvious. In other words, that the person who tripped and fell is responsible for their own injuries because they should've been watching where they were going. Even though this is a very strong argument, landowners still share a large part of the liability for the injury because it was their property, they knew about the danger, and they were attempting to shift the risk to the very people they invited onto their property.
So, in a slip and fall case, the biggest hurdle is in proving that the liquid or substance was on the floor for a sufficient period of time. In trip and fall cases, the biggest hurdle is proving that the condition wasn't open and obvious.
Evidence in Slip and Fall Cases
Cameras are everywhere these days and many slip and fall accidents are caught on surveillance film. However, a business is not required to keep the footage if they do not receive a formal request for preservation of evidence sent via certified mail with return receipt to its registered agent. Also, most security cameras record over prior footage or dump footage every four weeks. If you slipped and fell somewhere and were injured, it is critical that your lawyer send out preservation letters as soon as possible.
Eye witness testimony is critical. If you slip and fall in a store and no one is around to witness it, you might have a very weak case. At the end of the day, the value of your case is driven by what each side thinks a jury might do. A jury is six random people from your area who listen to the facts and evidence in a case and decide who is telling the truth. The jury knows that you have a financial interest in the outcome of the case, so they aren't just going to take your word for it. If there is no footage of the incident, you will need an independent witness to testify that he or she saw you fall. If you have slipped and fell, try to recreate the scene and get any contact info or identifying details about the people who were around you at the time.
Photos of the liquid or debris on the ground that caused you to slip. Pictures speak a thousand words. After you slip and fall, it is important for you or someone else to take photos of the substance on the floor. Also, if there are any wet spots on your clothing, take photos of that as well if you can.
The store is not required to take photos or help you prove your case.
Evidence in Trip and Fall Cases
If you tripped and fell, it was most likely over something that is permanently fixed to the ground or was an object put in your walking path. Besides surveillance footage and photos, discussed above, other importance evidence is the lighting in the area, whether or not you needed or were wearing glasses or contacts, whether you were looking at your phone at the time of the fall, and whether anyone can testify that you were or were not paying attention.