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Slip and fall cases – particularly slip and fall cases in parking garages – find plaintiffs caught between the wolves and the sea. The bigger the slippery surface, the more forceful the defense argument that client should have seen and avoided the hazard. The smaller the hazard, the more persuasive the defense argument that it did not have the opportunity to detect and clean up the hazard.

These basic rules were recently on display in a case we handled. Our client was walking through an underground parking structure and slipped in a deposit of oil. He testified that the patch of oil was approximately one foot by four feet. This obviously placed a heavy burden on the manager of the parking facility to clean it up. However, it also imposed significant degree of potential comparative fault on our client for not having seen the virtual oil slick.

Another big issue in the case was when was the oil deposited? We addressed this issue by emphasizing that the oil had not splattered on our client’s clothing when he stepped in it and that his foot – as it slid through the oil – left a lasting impression (indicating that the oil on the parking surface had partially dried and was not the result of a leak).

This case also emphasized that lighting is a significant issue in many slip and fall cases and may help alleviate the challenges posed by the “wolves and the sea” dilemma described at the beginning of this post.

When pursuing any inadequate lighting claim (or an inadequate lighting allegation as a supplement to the slip and fall claim) it is necessary to hiring a lighting engineer to both measure the light available at the location of the slip and fall and also to familiarize counsel with the applicable codes and standards. Also, in pursuing the inadequate lighting claim, it’s important to consider whether responsibility for lighting in the garage is the responsibility of the building owner or if it has been allocated to the management company that runs the garage. The safest course of action in any parking garage case is to file suite against both the building owner and the management company that runs the garage for the building owner.

The case used as the point of reference in this post has settled. It did not go to trial and there was not a determination regarding comparative fault. However, we were on the brink of trial and prepared the case extensively.

While we did not conduct a formal focus group or present the case to a mock jury, we did discuss it extensively with both legal colleagues and people who worked outside the law. They were universally concerned about our client’s decision to walk through other parking stalls in order to get to his car.

Query: Do you think the decision to walk through other parking stalls (particularly in the absence of a designated walkway) makes the plaintiff comparatively at fault or increases the comparative fault allocated to him?

We’re interested to hear your thoughts and comments. Thank you very much.

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