Today a sweet elderly lady met with me in Geneva, New York, with what she described as a “trip and fall” case. I listened sympathetically to her story of how she was hurt, and then told her could not take her case. Why?
Let’s start with what she tripped and fell on. She was on her way out of a local supermarket with her adult son when she suddenly tipped on . . . well, she really did not know what it was. Her son, who had been with her, said that when he looked down after her fall, there was a floor mat that was “flipped up at the edge”. He deduced that his mother must have tripped over the flipped up edge of the mat. The store should have been more careful with that mat, right?
There are two problems with that:
(1) It is at least as likely that our lady’s tripping action caused the carpet edge to flip up rather than the other way around. Since no one saw the rug BEFORE she began to trip, we cannot know whether it was already flipped up or whether our lady’s tripping action caused it to flip up.
(2) Even assuming the carpet edge had been “flipped up” and that this made her trip, we don’t know how or when the carpet became “flipped up”. Another customer might have accidently flipped up the carpet just moments before. The thoughtless customer might not have bothered straightening out the carpet. The supermarket can only be held liable if it had “notice” (knew or should have known) that the carpet was flipped up for a long enough time before the accident to remedy or fix it. Otherwise, the store was not “negligent” in causing the accident.
Fortunately, this lady’s injuries were not very significant. I had a feeling she was going to be as good as new within a few months.
Even though I had to reject this nice lady’s case, she seemed grateful for the time I spent with her explaining why she did not have a case. Before she came in to see me, she had already called a few lawyers who, after hearing her story, had simply told her they were “too busy” to take the case. Although many lawyers make it a practice to turn down cases in this less-than-honest way, I am proud that at Michaels & Smolak we always give people a REAL reason why we are rejecting their case. And they appreciate it. Sometimes they even send friends or family to us with their cases. Being “real” with people is not only the right thing to do, it also reaps its rewards.