Falling: A Legal Perspective

Each new day is precious. Independence, mobility, self-reliance and good health are the barometers by which the quality of life is measured. Falls for the elderly can be wicked things. They are not anticipated and it is difficult to prepare for them.
Parachutists joke, “It’s not the fall that gets you, it’s the sudden stop!” But a parachutist knows the landing is imminent. When a pedestrian falls, the landings are usually unexpected. In some cases resulting injuries can tremendously affect the future quality of life for an elderly person.

If you or a loved one experiences a fall, here are a few things to keep in mind.

Falls among the elderly are generally more severe due to Osteoporosis and the effects of aging on the bones, spine and circulatory system.

Truth vs. Fiction:

After a fall, a premises owner generally anticipates that recovery rights will be exercised. For that reason they generally have safeguards in place, including policies and safety training for employees, as well as casualty insurance to address such a problem.

A common misconception is that a premises owner is the insurer of the safety of the persons who visit their stores as customers. This is not the law in Florida, nor has it ever been the law in most states.

A premises or storeowner’s obligation to the individual shopper is only to warn the patron of the hazards and dangers that may cause a fall. As they can only warn of the dangers of which they are aware, they are obligated to keep a close eye out for such conditions.

Perhaps you have heard the reminder for floor managers to “check their areas”? The reason for this periodic inspection goes to the legal concept that a hazard or dangerous condition must have existed long enough for the proprietor to know about it and put up a warning (i.e., cones, ropes or signs) for there to be store liability for not warning.

If an elderly shopper fell or was injured due to a store owner’s failure to warn of a danger, which the owner could see but the shopper could not reasonably discover, then the store can be held liable for medical bills and for monetary funds to compensate or make “whole again” the elderly shopper in restitution for the experience of the fall, the pain and suffering caused by the fall, and the resulting mental anguish.

The elderly shopper, however, is not without obligations for their own safety. It is incumbent upon them to make a reasonable inspection and look at the areas in which they walk.

However, a “reasonable inspection” for an elderly shopper is different than a “reasonable inspection” for an employee whose job description should include instructions to keep a vigilant eye for such conditions.

If, for instance, an individual falls in a puddle from a drink spilled by a small child deep in the store aisle within moments of the spill, there may be no liability. However, if the fall occurs within moments of the youngster’s spill upfront, near the checkout lane where a cashier had time to see and warn, there likely would be liability.

If the individual readily saw the danger, which became the cause of the fall but chose to ignore the danger, knowledge of the danger would affect the liability of the store. But remember: the law does not impose upon any shopper the obligation to inspect their surroundings with a magnifying glass. The briefest scan of the area ahead may be more than reasonable under the circumstances.

No amount of recovery can replace good health, mobility or an active, independent lifestyle, all of which can quickly disappear for an elderly fall victim. Therefore, though the idea of seeking a monetary recovery is abhorrent for many elderly individuals, it is certainly the most civilized approach to redress life-altering injuries that any society has yet to devise.

David L. Hirsch is a partner in Brawer, Hirsch and Associates, P.A. He is member of the Florida, Georgia and Alabama and American bar associations and has tried slip and fall cases in state and federal courts for over thirty years.

For additional questions concerning injuries such as these, contact Brawer Hirsch and Associates PA, Sunrise FL dlhirschpc@aol.com