What to do after a slip and fall

Cornell's legal encyclopedia describes an invitee as "a person who enters another's property with the owner's express or implied invitation," such as a customer entering a store, and says the duty owed to an invitee "is typically one of reasonable care to keep the premises in a reasonably safe condition and to warn of any known dangerous conditions that are not open and obvious." [7] It adds that this law "is typically based on state premises liability laws, which vary from state to state." [7] So the questions that follow are state questions: the visitor's status, what the owner knew, whether the hazard was obvious, and how much fault each side shares.

Two things every state page below links to: the deadline to bring a claim (Tennessee, Alabama, Oklahoma, South Carolina; see also the deadline calculator) and the fault rule (Tennessee, Alabama, Oklahoma, South Carolina). Those rules differ sharply between states, so check yours first.

In Jones Food Co. v. Shipman, 981 So. 2d 355 (Ala. 2006), the Alabama Supreme Court wrote: "Under Alabama law, a person invited onto another’s premises for commercial purposes is an invitee." [8] It continued: "The duty owed by the invitor to an invitee is to exercise ordinary and reasonable care to keep the premises in a reasonably safe condition." [8] And: "The party who controls the premises is not an insurer of the safety of the invitee, and no presumption of negligence arises from the mere fact of an injury to the invitee." [8] Read Alabama's contributory negligence rule and the deadline page before relying on any of this. We read one opinion, not the full Alabama case law on open and obvious hazards, so this page says nothing more about them.

In Scott v. Archon Group, L.P., 2008 OK 45, the Oklahoma Supreme Court wrote: "It is well-settled premises liability law that the duty of care which an owner or occupier of land has toward one who comes upon his or her land and is injured because of the condition of the premises, varies with the status occupied by the entrant." [9] It added that the entrant's "status-based classification under traditional common law terms—trespasser, licensee or invitee—is therefore essential in resolving the issue of the existence of a duty." [9] Read Oklahoma's fault rules and the deadline page. We did not read Oklahoma's open-and-obvious cases, so we say no more about hazards.

In Callander v. Charleston Doughnut Corp., 305 S.C. 123 (1991), a man slipped and fell in a doughnut shop when he backed up to sit on a stool from which the round seat top was missing [10]. The court wrote that "The traditional “no duty to warn of the obvious” rule has been modified in many jurisdictions to hold that an owner is liable for injuries to an invitee, despite an open and obvious defect, if the owner should anticipate that the invitee will nevertheless encounter the condition, or that the invitee is likely to be distracted," and then: "We hereby adopt Section 343(A) of the Restatement (Second)." [10] The court noted that the owner "admitted the stool top had been missing for over two months." [10] Read South Carolina's fault rules and the deadline page.

The rest of this section is the Tennessee material: the one-year deadline, notice, obvious hazards and shared fault.

Tennessee's general injury deadline is in Tenn. Code Ann. § 28-3-104(a)(1): "the following actions shall be commenced within one (1) year after the cause of action accrued," and the list includes "injuries to the person." [1] A longer period of two years applies in limited situations tied to criminal charges (§ 28-3-104(a)(2)); a fall on private property rarely involves them. Other rules can extend the time for minors or people who lack legal capacity (§ 28-1-106) [2]. See Tennessee deadlines for the full table.

If the property is owned by a city or county, a different statute applies. The Tennessee Governmental Tort Liability Act says: "The action must be commenced within twelve (12) months after the cause of action arises." (§ 29-20-305(b)) [3]. Whether a particular fall falls under that Act is not something this page can tell you.

A slip-and-fall claim is a negligence claim. In Blair v. West Town Mall, 130 S.W.3d 761 (Tenn. 2004), the Tennessee Supreme Court described what a plaintiff must show in addition to the ordinary elements of negligence: that "the condition was caused or created by the owner, operator, or his agent, or" that, if someone else created it, "the owner or operator had actual or constructive notice that the condition existed prior to the accident." [4]

• Actual notice means the owner or staff really knew about it, for example a prior complaint or an incident report.
• Constructive notice means the owner should have known. The court says it can be shown by proof that the condition "existed for such a length of time that the defendant, in the exercise of reasonable care, should have become aware of the condition." [4]
• Pattern of conduct. The court also held that plaintiffs "may attempt to establish constructive notice of the presence of a dangerous condition by showing a pattern of conduct, a recurring incident, or a general or continuing condition indicating the dangerous condition’s existence." [4]

This is why people often record how long a spill, a worn step or a broken light had been there, and whether the same thing had happened before. Those are records, not a prediction about any claim.

Tennessee no longer treats an obvious hazard as an automatic end of the owner's duty. In Coln v. City of Savannah, 966 S.W.2d 34 (Tenn. 1998), the Tennessee Supreme Court concluded "that an open and obvious danger does not automatically result in a finding of no duty and therefore no landowner liability," [5] and that comparative fault principles then apply [5].

Comparative fault: under McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), "so long as a plaintiff's negligence remains less than the defendant’s negligence the plaintiff may recover; in such a case, plaintiff’s damages are to be reduced in proportion to the percentage of the total negligence attributable to the plaintiff." [6] If the injured person is found equally or more at fault than the defendant, recovery is barred. See Tennessee fault rules.

This list comes from what the rules above make relevant, not from a statute:

• Tennessee deadlines
• Tennessee fault rules
• Alabama, Oklahoma and South Carolina fault rules
• Medical records and bills
• Dog bite