That is the million-dollar question. Premises liability — or “slip and fall” — cases, are among the most difficult to prove in Illinois.
You are required to show there was a defect on the property (say, a spill, a hole, an object you might trip on), that the entity that owned or managed the property knew, or reasonably should have known about that defect, and that the defect existed for sufficient time for it to have taken steps to repair or warn people.
There are several major types of slip and fall cases under Illinois law.
Trip and fall on a sidewalk and you are dealing with a shorter time limit to file a lawsuit (a one year statute of limitations applies to municipalities). These cases also can involve very technical and detailed analysis of whether the municipality is immune from ordinary negligence (forcing the injured party to prove “willful and wanton” behavior, which is exceedingly difficult).
There is also a boatload of caselaw defining just what size of a defect a city should be “aware” of. If a crack in the sidewalk is so large that any reasonable person could see it, that person may lose under the “open and obvious” doctrine, which provides that the person walking has to exercise reasonable care for his or her own safety (take that, you folks who walk while texting!).
But what if the crack is so small you couldn’t see it? Then the city may argue that it is de minimus, or too small for it to be responsible.
The sweet spot often depends upon the lighting and traffic conditions. If it is a major street in a commercial area, and well-lighted, then it is presumed the city will be responsible for a slightly smaller defect, as it expects many people to traverse the area.
Alternatively, a residential area may require a larger defect than a commercial area.
There is also a requirement that the person using the sidewalk be an “intended and permitted user,” meaning you cannot walk in the roadway (except in some limited circumstances, like when the sidewalk is under construction).
In short, sidewalk slip and fall cases are among the toughest cases there are in Illinois and the law is ever-evolving and greatly dependent upon the specific facts of the case.
Snow and ice cases might be even more difficult than typical trip and fall cases.
Illinois law requires the injured person prove they slipped on snow or ice that had accumulated “unnaturally.”
What in the world does that mean?
Well, if you are walking into a store and step into some melted snow tracked in from outside, fall, and then sue the store or its snow removal service for damages, you will be unlikely to prevail. “Tracked in” cases generally are considered “natural accumulations.”
By the same token, if you are walking in the parking lot and it has just begun to snow and you fall on the slippery snow, no dice.
However, if you can show that the owner or manager of the premises had a duty to remove the snow or ice (some municipalities require them to do so, as in Chicago, while others specifically allow them to take no action and escape liability in most cases), and did so negligently, you may be able to win. For example, say your local Jewel parking lot is plowed by Crazy Dan's Plowing Company and they pile the snow up into a high area right where the sun shines most of the day. Then that pile of snow melts and pools into ice as it flows downhill and refreezes. You walk to your car and fall and get hurt. In that case, you would have a good argument for recovery.
The typical scenario is walking through the supermarket and you turn the corner and slip on something. The law requires that you prove what you fell on, provide reasonable proof the store knew or should have known it was there, and that it was there for a sufficient amount of time the store could have removed it. This is why you hear the announcements of “cleanup on aisle 4” so frequently repeated at the local supermarket.
Some of the analysis will be what you saw, when you saw it, who might have been aware of it, and so on. There often is video which can time stamp who put the substance there, who was aware of it, and whether it could be seen.
One example is a spill of olive oil caused by another customer dropping the bottle. That would cause a large puddle and be rather “open and obvious” to people. It is presumed you would notice this and take care for your safety.
But what about a small egg that fell off the shelf and created an almost clear and unnoticeable puddle. You walk, pushing your cart ahead of you, so can’t see the floor, and presto, you’re down! In that case, if there were no shoe prints in the puddle, it might be hard to show the store was or should have been aware of it. But if it was an egg, or a grape, or a small bit of olive oil that had cart tracks, shoe prints, or the like in it, you might be able to prove it was there for a reasonably long enough time to make the store responsible. Most supermarkets have protocols that require inspection of the aisles every 20-40 minutes.
That would be a case where you could recover. That is why when you see an employee of an establishment mopping, they almost always have the yellow “Danger, wet floor” signs out.
If you walk on that wet floor because you’re too busy texting, you probably will have a tough fight on your hands to demonstrate you took reasonable care for your own safety, especially if the video shows your nose in your phone!
Rare circumstances have found that you can have a large and obvious defect that the premises owner or manager is still responsible for if you can prove you didn’t see it because you were distracted. There is a case where someone was walking out of a store carrying a large box and walked straight into a post. They claimed they didn’t see the post because they were distracted by the box they were carrying (other cases deal with “distracting” signage).
I once had a case where my client literally walked face first into a glass door. You would think this was impossible for him not to see and therefore there would be no liability. However, I was able to prove, using photos, that the child’s seat stationed in front of the adjoining door made it appear that door was blocked off like a wall. He simply never saw the glass door because he was distracted by the high chair. We were able to get him compensation to pay for his injuries, his nose surgery, pain and suffering, and lost wages.
The common thread of all premises liability cases is that they are disfavored. Otherwise, anytime you fell, you’d sue and win and every business would pay enormous damages. Clearly, that would not be fair to owners or managers of property. So the law has evolved over the years to make it more difficult to succeed in these types of claims while also ensuring that property owners take care to remove all defects in a reasonable amount of time.
As in all cases involving injury and potential liability, immediately get medical treatment and contact a personal injury lawyer.
If you've been in a slip and fall accident and have questions, contact Chicago personal injury attorney Stephen L. Hoffman for a free consultation at (773) 944-9737. Stephen has nearly 30 years of legal experience including Illinois premises liability cases and has collected millions of dollars for his clients. He is listed as a SuperLawyer, has a 10.0 rating on Avvo, and is BBB A+ accredited. He is also an Executive Level Member of the Lincoln Square Ravenswood Chamber of Commerce.
Stephen handles personal injury and workers' compensation claims on a contingency fee basis, which means you don’t pay anything upfront and he only gets paid if you do. Don’t wait another day, contact Stephen now.